THE ONLY TIME TO MEET

The only time unit owners in a condominium association are entitled to appear at a meeting is at an Association meeting. To some this may be harsh, but condominium associations are corporations in a sense. As such, much like Apple or Google or any other corporation, the only meeting shareholders are entitled to attend is any duly called shareholder meeting. Neither you nor I has any right to attend an Apple Board meeting. It is the same in Condo World. No one has the right to attend a Board meeting; but all have the right to attend Association meetings.

Thus, to protect the unit owners, there are several provisions that must be followed for a meeting to be valid.

• There must be at least one meeting held each year.

• The officer designated in the Bylaws (usually the Clerk or the Clerk's designee) has to send the Notice out at least twenty-one (21) days in advance of the annual meeting [at least seven (7) days in advance of any specially called meeting].

• The Notice has to be sent, postage prepaid, by first United States mail.

• The Notice goes to the unit owners of record at the address of their respective unit(s) and to any other address they have given to the officer designated to send out the notices.

• One of the officers (or his/her designee) must prepare and sign an affidavit in which s/he indicates s/he sent the notice of the association meeting by mail to all owners.

• Attached to the Affidavit must be a list of the addresses to which the Notice was sent.

• The Affidavit and the mailing list must be available for inspection by the owners at the meeting.

• Thereafter the Affidavit and mailing list must be kept with the minutes of the meeting and be made available for inspection for at least three years after the date of the meeting.

I didn't make this list up; the Legislature did. Why? Likely to ensure all Unit owners have proper notice of what is going to happen at the only meeting which owners are entitled to attend.

Unfortunately, I have found that most associations don't follow these provisions. For instance, many, many condominium documents still state the Notices have to go out by certified mail. This provision was originally in the statute, and was deleted in 1999, but many associations have not deleted it from their documents. As such, if your Bylaws still state the Notices must go out certified, then you cannot rely on the language of the statute, but must, to be safe, send them out certified until you amend the Bylaws to strike the certified language.

Interestingly, more and more associations allow for a waiver of the Notice provisions. This is, plain and simple, a mistake. There is nothing in the Condominium Act that allows for Notice to be waived. Arguably, if an owner shows up and participates in a meeting, they would have a hard, but not impossible, time convincing a judge the Notice was improper, and waivers will lessen the possibility of losing a court challenge, but the real possibility remains. Why take the chance?

Why is all of this so important? Because, generally speaking, New Hampshire has a three year statute of limitations. In English, that means a person has three years to sue for improper actions taken by a condominium association. So, imagine. Here's a scenario.

At an improperly noticed meeting two new members of a three member Board are elected. A few months later the newly configured Board votes to specially assess each unit several thousand dollars to repair roofs and/or re-pave. The Board sign contracts. The Association is on the hook for tens of thousands (perhaps hundreds of thousands) of dollars. The workers start. But several owners do not like the Board's choice of contractors and/or the project itself; or the amount assessed. They refuse to pay. The Association sues. They discover the meeting was not properly noticed, e.g. notices were to be sent certified, but were not and there was less than 100% attendance, or there is no affidavit on file proving that notice was sent, or there is no mailing list to prove that the absent owners received the notice. The disgruntled owners can rightly call into question any action taken by the Board (even whether the fraudulently elected Board had the right to file suit). One can imagine the chaos.

Best to be a little annoyed at the requirements than a lot angry if not followed and challenged down the road.

Be safe. Be diligent. Follow the law.