Question: Our members approved a Rental Restriction Policy at the most recent annual meeting which grandfathered existing rentals. Should this policy be put in the recorded bylaws? If a unit is occupied by an owner's relative, is the unit classified as a rental or as owner occupied?

Answer: Since the ability to rent one's property is considered a basic right, informing prospective buyers of the policy through recorded bylaws is essential. A Rental Restriction Policy is considered a major change in ownership rights and should always be handled as an amendment to the bylaws. As such, the appropriate number of members (as defined by the governing documents) must vote to approve the policy. The appropriate number may be a super majority (more than two thirds) or even 100% of all members, not just those that show up to a meeting. Amendments must be noticed to all owners in advance of a special meeting, Annual Meeting or special ballot. The issue cannot simply be raised as a motion from the floor of a meeting. Whenever bylaws are being amended, all members must be advised in advance so they have an opportunity to vote. Check with a knowledgeable HOA attorney to make sure this policy is enacted properly.

If the majority feel that a rental restriction policy is desirable, it is highly recommend that the policy should apply to all members with no exceptions. Allowing some members to have a privilege that others don't is bound to create conflict and an administrative nightmare. All rental restriction policies should have a hardship provision for military deployment (owner is away temporarily), down real estate market (few buyers or selling at a substantial loss) and other reasonable exceptions approved by the board.

To qualify as “owner occupied”, an owner on the title must occupy the unit. A cousin or daughter may also occupy the unit but they do not qualify as owners. If an owner is not actually living in the unit, it is not owner occupied.

Question: How soon after a meeting should minutes be written and distributed for member review?

Answer: Minutes should be written and distributed in DRAFT form within one week after the meeting. While they may be amended at the next board or annual meeting, there is usually information in the minutes that members need to know sooner than that.

Question: At our annual meeting the ballot indicated there were four board positions open. There were only three names listed and two spaces for write-ins. The votes were tallied and only the three people printed on the ballot were announced as winners. Apparently, there were many write-ins and none of them had a majority.

Answer: Write-in candidates are valid candidates as long as they actually agree to stand for election. If they have not agreed or are not even at the meeting to know they are being considered, they should not be write-ins. If there were many write-ins at this election, it doesn't surprise that many only received a couple of votes each and none elected by a proper majority.

What should have happened is that instead of accepting random write-in names, nominations should have been accepted from the floor of the meeting so that those in attendance knew who actually wanted to run for office. To accept a nomination, the candidate would either have to be at the meeting or provide a written acceptance of a nomination if unable to attend. All such candidates are then written on every ballot prior to the vote. In real life when it becomes clear that there are way more candidates than positions, many nominated candidates refuse the nomination which makes achieving a majority vote easier.

But that's not what happened at your meeting and there is still a board position to fill. One option is for the board to appoint one of the write-in candidates. Or, a run-off election could have been held which includes only the write-in candidates. The two candidates that receive the majority of the votes are then candidates for a third run-off election which determines who fills the fourth board position.

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Published: January 20, 2010

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Richard Thompson owns Regenesis, a management consulting company that specializes in condominium and homeowner associations. He is a nationally recognized expert on HOA management issues. Regenesis publishes The Regenesis Report, a monthly newsletter for HOA boards, developers and managers. To subscribe, go to Regenesis.net. He can be contacted by email at .