Legislative Changes - 2024

Sorry for the gap in between columns, for anyone who reads them, and the very rare person who looks forward to them, it's been a busy stretch. After all of the fuss and hullabaloo with the many pieces of legislation introduced this past year regarding condominiums, only two pieces were passed, both of some interest, and one of which will require you to amend your Bylaws.

The good news is the annual attempt to start a condominium appeals board which wold drag association board member to Concord for a hearing repeatedly was once again killed.

The Legislature helped refine the use of proxies. (A proxy is a simple, usually one page, document that grants the power to speak and vote on behalf of an owner to another. Because the owner cannot or chooses not to be at an Association meeting.) It added language to close a hole in an amendment to the Condo Act from 2016 which allowed for the use of both directed and undirected proxies. Back then, the Legislature noted no one person or entity, such as a board of directors, could hold more proxies than ten percent of the voting interests in the Association. This was to prevent undue influence from one person or entity from gathering too much power, sometimes bullying people to get their proxies (I had such case),and could result in the holder of the multiple proxies voting not as the owners of those proxies wished, but what the bully wanted.

It created a directed proxy and noted that if a directed proxy is used, then there was no limit to how many proxies any person or entity could hold.

But there was no definition provided of what a directed proxy meant.

For those associations without counsel, which is many, if not most, it created a problem.

For those associatoios with counsel, it was relatively understood to mean the proxy would take away the discretion of the proxy holder and direct the holder how to vote, such as for or against the budget and for certain people running for election. (Lawyers being lawyers, many argued about this as well.)

Now there is a definition:

However, the Legislature, back in 2016, did not define what I

“Proxy” means a document created by the association to allow unit-owners to vote in absentia by providing a proxy to another person who is the proxy holder of the unit-owner's choice.

(a)  A directed proxy allows the unit-owner providing the proxy to the holder to direct the holder's votes on one or more of the issues to be put to the meeting which the proxy holder will attend.

(b)  An undirected proxy provides its holder with full power to decide how to vote on each issue before the meeting of unit owners.

Hopefully that's clear than mud now. If not, reach out to your association counsel. There's time as this goes into effect January 15, 2025.

Then the Legislature added another section which makes it a bit, but not a lot, tricker.

Not to

The option of a directed or undirected proxy shall be the choice of the unit owner. In a condominium association of more than 20 units, proxies cast by any person shall not exceed 10 percent of the votes cast,  provided that condominium bylaws that specify less than 10 percent of proxies cast shall apply.  In a condominium association of  less than 20 units, proxies cast by any person shall not represent a majority of the votes.  The board of directors or the association secretary shall implement a process to ensure the integrity of all votes cast in person or by directed or undirected proxy in order to properly register the votes cast.

(b)  The complete text of all voting articles must be included in the properly noticed meeting agenda.  Voting on articles amended during a meeting must be deferred until the next properly noticed meeting.  Proper notice must be delivered to all condominium owners in accordance with the provisions in RSA 356-B:37.

(c)  The proxy or proxies shall list the name of the person who is to vote.  No such proxy shall be revocable except by actual notice to the person presiding over the meeting, by the unit owner or by any of such persons, that it be revoked.  Any proxy shall be void if it is not dated or if it purports to be revocable without the required notice.  The proxy of any person shall be void if not signed by a person having authority, at the time of the execution thereof, to execute deeds on behalf of that person.  Any proxy shall terminate automatically upon the adjournment of the first meeting held on or after the date of that proxy.  The board of directors shall deliver to the unit owners, together with their notice of meeting and agenda, both directed and undirected proxy forms bearing a control number which the board of directors shall correlate to the list of all unit owners then entitled to vote.  At the noticed meeting, the board of directors shall recover all proxies and compare them to the control list maintained for that purpose.  Any proxies which are on a form other than that provided by the board of directors or which do not correlate with the control list maintained by the board of directors shall be disregarded for purposes of determining whether a quorum was present at the meeting and for purposes of casting any vote at that meeting.

(d)  The board of directors shall retain all proxies delivered to the board of directors and all independent written confirmation of any such proxies for inspection by the unit owners for a period of not less than 3 years from the date of the unit owners' association meeting.

(e)  This section shall not apply if the condominium is comprised of time sharing interests.

Ef. 1.15.2025

1  Meetings of the Board of Directors and Committees of the Association.  Amend RSA 356-B:37-c to read as follows:

356-B:37-c Meetings of the Board of Directors and Committees of the Association. The following requirements apply to meetings of the board of directors and committees of the association authorized to act for the association:

I. For purposes of this section, a gathering of board members at which the board members do not conduct association business is not a meeting of the board of directors. A meeting of the board of directors also shall not include informational sessions held by board members to obtain and compare vendor proposals, including but not limited to, landscaping, lawn care, snow removal, septic services, well services, insurance, window cleaning, and common area maintenance; provided that the review and vote on any motions resulting from the informational session shall be conducted at the next scheduled board meeting.  The board of directors and its members may not use incidental or social gatherings of board members or any other method to evade the open meeting requirements of this section.

II. Not less than once each quarter, and at such additional times as may be specified in the condominium bylaws, the board of directors shall, subject to the provisions of RSA 356-B:37-d, hold an open regular meeting during which unit owners shall be afforded a reasonable opportunity to comment on any matter affecting the association. At its discretion, the board of directors may meet in a meeting not open to unit owners provided the meeting is recorded and the recording is made available to unit owners for up to 30 days upon request.

III. Unless the meeting is included in a schedule given to the unit owners or the meeting is called to deal with an emergency, the secretary or other officer specified in the bylaws shall give notice of each meeting of the board of directors to each board member and to the unit owners. The notice shall be given at least 10 days before the meeting, or 5 days before the meeting if at least 70 percent of the unit owners are full-time residents, and shall state the time, date, place, and agenda of the meeting.

IV. If any materials are distributed to the board of directors before the meeting, the board of directors at the same time shall make copies of those materials reasonably available to unit owners, except that the board of directors need not make available copies of unapproved minutes or matters that are to be considered in executive session.

V. In the case of self-managed community associations, meetings of the board of directors or committees expressly for purposes of implementation of decisions made in open meetings shall be exempt from the requirements of RSA 356-B:37, 356-B:37-a, and this section.

VI.  This section shall not apply to small condominiums governed by RSA 356-B:37, VII.

VII.  This section shall not apply to a committee if the association's bylaws do not permit the committee to expend association funds or to sign contracts on behalf of the association.

2  Effective Date.  This act shall take effect January 1, 2025.