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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2958
Experience:  Civil litigation attorney for individuals and businesses.
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I am an owner in an opted in MCIOA and the Board is attempting

Customer Question

I am an owner in an opted in MCIOA and the Board is attempting to amend our Declaration to lower the permitted investor unit owner %.

My first question is to the mechanics to what is proper to do so in Minnesota. The amendment has no start date or end date as to how long the voting period might be. I thought I read somewhere ( a while back) that there should be a start date and end date. The amendment nor the cover letter refers to a time peiod. The last time the Board tried this they kept extending the end date and would twist arms trying to get more votes. Where might I go to read a collection of things that should typically be adhered to?

My second question is, the ballots are all to be sent to our property manager as time goes forward. He is in the pocket of the Board bigtime. Shouldn't something like this be handled similar to elections of officers and have a small body receive and only open and count the results without the board or property manager being the only one who knows who voted for what? We have 140 units.

Thanks. XXXXX
Submitted: 10 months ago.
Category: Legal
Expert:  William B. Esq. replied 10 months ago.

William B. Esq. :

Dear Customer, thank you for using our service. My name is XXXXX XXXXX X would like to assist you today.

William B. Esq. :

I believe I have located the statute you were referring to: https://www.revisor.mn.gov/statutes/?id=515B.3-110

William B. Esq. :

The relevant time period is no less than 15 days and no more than 45 days from the date of delivery of the notice. Votes by mail are to be delivered to the Association. (In this case, the statute is broad, and does not clarify whether the "Association" is represented by the Board, or its agent the Manager, however, the Board of Directors is clearly required to notify the homeowners of the results.

William B. Esq. :

Unfortunately, it is not unusual to have a Board attempt to manipulate voting periods in order to achieve their desired results. In that case, you do have a right to bring a claim for enforcement of your governing documents, violation of the above statute, and for declaratory relief regarding the Board's actions.

William B. Esq. :

I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.


Thank you for using our service, please do not forget to rate my answer when you are satisfied. I am going to transfer our conversation to the "Q&A" format to ensure you can review the entire response and that I can follow up to any questions you may have quickly. I do wish you the best of luck in this matter.

Expert:  William B. Esq. replied 10 months ago.
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Customer: replied 10 months ago.


I rec'd the ballot for an amend. to our investor owner % today. It is not dated. It has no required "return by date stated ". So, is the envelope I rec'd it in the "trigger start date"?


 


The cover letter date from prop mgr is dated 9-12-13. Is that the trigger date? Sorry I am dense. So the prop mgr can give blow by blow report to Board as docs are returned?

Customer: replied 10 months ago.


did you get a reply from me... it seemed to go or time out before I finished typing

Customer: replied 10 months ago.


The cover letter is dated 9-12-13. Rec'd in the mail on 9-13-13. So this means the voting cut off is in 45 days? How does one know if mail trickles in later. Sorry... I am having to rush before your program times me out again. My earlier reply went down the drain?

Expert:  William B. Esq. replied 10 months ago.
My apologies for any technical difficulty (sometimes there are browser interface errors that can create an issue).

The start date is September 12, 2013 (the date the ballots were mailed out).

The fact that there is no voting cutoff would mean that the 45 day cutoff would apply. You have 45 days from the 12th to return your ballot.

The Property Manager can review the ballots as they come in and inform the board. (This is usually avoided as it gives the appearance of impropriety, and the ballots should be counted in one vote, but there is no prohibition against it in the statute itself).

(I have been doing HOA law for some time, and you are in no way "dense" on this subject).
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2958
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 7 other Legal Specialists are ready to help you
Customer: replied 10 months ago.


I am not meaning to pursue this further, but the response I received from our property manager disputes your response. See below:


Please ask your attorney to refer to 515B.2-118 (a). The Section he referred to specifies the procedures to be followed if conducting a vote by mail in lieu of a vote taken at a meeting. That does not apply in this situation since the approval is being obtained by written consents. When you raised the issue last night I suspected that was the basis for the opinion you received, which is why I commented that the answer you get depends on the question you ask. His answer would be dead-on for a vote but not for approval by written consent.


 


As an FYI, almost every client I work with who has amended or rewritten their governing documents has obtained the approval via written consents, given the difficulty in getting that many owners together at a meeting, or to respond to a vote by mail in a timely manner. Apathy and inertia are usually the biggest obstacles to overcome, not actual opposition. So far as verifying the legitimacy of the consents, please remember that they must be signed by the owner, which provides validation. In fact, written consents provide better validation than do ballots.


 


P. S. - I could have saved you the legal bill if you had called me first!

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