2023 Common Interest Community Board Duties, Indemnification, Liabilities
Directors and officers; conflict; powers;
DUTIES; INDEMNIFICATION; LIABILITY, limitations;
removal; annual audit; applicability
A. Except as provided in the declaration, the bylaws, subsection B
of this section or other provisions of this chapter, the board of directors
may act in all instances on behalf of the association.
B. The board of directors shall not act on behalf of the association
to amend the declaration, terminate the condominium, elect members of the
board of directors or determine the qualifications, powers and duties or
terms of office of board of directors’ members. Except as provided in
subsection H of this section, the board of directors may fill vacancies in
its membership for the unexpired portion of any term.
C. If any contract, decision or other action for compensation taken
by or on behalf of the board of directors would benefit any member of the
board of directors or any person who is a parent, grandparent, spouse, child
or sibling of a member of the board of directors or a parent or spouse of
any of those persons, that member of the board of directors shall declare a
conflict of interest for that issue. The member shall declare the conflict
in an open meeting of the board before the board discusses or takes action
on that issue and that member may NOT PARTICIPATE IN THE DELIBERATION OR then
vote on that issue. THE DECLARATION OF CONFLICT SHALL BE RECORDED IN THE
MINUTES OF THIS MEETING. Any contract entered into in violation of this section is void and
unenforceable. ADDITIONALLY, ANY DIRECTOR THAT KNOWINGLY VIOLATES THIS SECTION
COMMITS A BREACH OF DUTY PURSUANT TO SUBSECTION E, AND SUBJECT TO THE
PROVISIONS OF SUBSECTIONS F AND G OF THIS SECTION.
D IN ADDITION TO DUTIES IMPOSED BY OTHER SECTIONS OF THIS CHAPTER AND
THE CONDOMINIUM DOCUMENTS, THE ASSOCIATION THRU ITS BOARD OF DIRECTORS,
HAS THE FOLLOWING DUTIES TO THE UNIT OWNERS OF THE CONDOMINIUM AS A WHOLE:
1. TO ACT WITH THE CARE AN ORDINARILY PRUDENT PERSON IN A LIKE POSITION
WOULD EXERCISE UNDER SIMILAR CIRCUMSTANCES IN MANAGING AND MAINTAINING THE
COMMON PROPERTY AND IN PROTECTING AND MANAGING THE FINANCIAL ASSETS AND
AFFAIRS OF THE ASSOCIATION.
2. TO TREAT UNIT OWNERS FAIRLY, AND TO ENSURE THAT THIS DUTY IS
REQUIRED OF ANY AGENT ACTING ON ITS BEHALF.
3. TO ACT REASONABLY IN THE EXCERCIZE OF ITS DISCRETIONARY POWERS
INCLUDING RULEMAKING, ENFORCEMENT, AND DESIGN-CONTROL POWERS.
4. TO PROVIDE UNIT OWNERS REASONABLE ACCESS TO INFORMATION ABOUT
THE ASSOCIATION, THE COMMON PROPERTY, AND THE FINANCIAL AFFAIRS OF THE
ASSOCIATION PURSUENT TO SECTION 1258 OF THIS CHAPTER, AND TO ENSURE THAT THIS
DUTY IS REQUIRED OF ANY MANAGING AGENT ACTING ON ITS BEHALF.
E. THE DIRECTORS AND OFFICERS OF A CONDOMINIUM ASSOCIATION HAVE A
DUTY TO THE ASSOCIATION TO ACT IN GOOD FAITH, TO ACT IN COMPLIANCE WITH AND
WITHIN THE AUTHORITY OF THE LAW AND THE CONDOMINIUM DOCUMENTS, TO DEAL
FAIRLY WITH THE ASSOCIATION AND ITS UNIT OWNERS, AND TO USE ORDINARY CARE
AND PRUDENCE IN PERFORMING THEIR FUNCTIONS.
F. THE ASSOCIATION OR ITS DIRECTORS AND OFFICERS ARE INDEMNIFIED FROM
ANY LIABLITY FOR ANY ACTION TAKEN OR ANY FAILURE TO TAKE ANY ACTION IF THE
DUTIES WERE PERFORMED IN COMPLIANCE WITH SUBSECTION D AND E. IN ANY
PROCEEDING COMMENCED UNDER THIS SECTION, A DIRECTOR HAS ALL OF THE
DEFENSES AND PRESUMPTIONS ORDINARILY AVAILABLE TO A DIRECTOR. A DIRECTOR IS
PRESUMED IN ALL CASES TO HAVE ACTED, FAILED TO ACT, OR OTHERWISE DISCHARGED
SUCH DUTIES IN ACCORDANCE WITH SUBSECTION D AND E. THE BURDEN IS ON THE
PARTY CHALLENGING THE ASSOCIATION’S OR DIRECTOR’S ACTION, FAILURE TO ACT OR
OTHER DISCHARGE OF DUTIES TO ESTABLISH A BREACH OF DUTY BY CLEAR AND
CONVINCING EVIDENCE OF FACTS REBUTTING THE PRESUMPTION. UNLESS THE BREACH
OF DUTY IS BASED ON ANY ACTION OUTSIDE THE AUTHORITY OF THE BOARD OFDIRECTORS, OR INDIVIDUAL DIRECTOR TO TAKE, THE CHALLENGER HAS AN ADDITIONAL
BURDEN OF PROVING THAT THE ACTION BY THE ASSOCIATION OR DIRECTOR CAUSED OR
THREATENS TO CAUSE HARM TO THE UNIT OWNER INDIVIDUALLY OR TO THE INTEREST
OF THE CONDOMINIUM COMMUNITY.
G. ANY DIRECTOR FOUND IN BREECH OF DUTY BY A COURT OF APPROPRIATE
JURISDICTION, UNDER SUBSECTION F MAY BE HELD PERSONALLY LIABLE FOR ANY
RESTITUTION, DAMAGES, FINES AND LEGAL FEES INCURRED BY THE ASSOCIATION OR
AWARDED BY THE COURT AS A RESULT OF THIS CIVIL ACTION. LIABILITY SHALL BE
BASED ON DIRECT ACTIONS BY DIRECTORS THAT CAUSED THE BREACH OF DUTY, OR
FAILURE TO ACT TO PREVENT THE BREACH OF DUTY AS DETERMINED BASED ON THE
FACTS OF THE CASE. ANY DIRECTOR THAT ABSTAINED FROM VOTING, OR ACTED IN GOOD
FAITH ON THE DIRECT ADVICE OF LEGAL COUNSEL, OR VOTED IN THE MINORITY IN
OPPOSITION TO AN ACTON OR FAILURE TO ACT THAT RESULTED IN THIS BREACH OF DUTY
IS INDEMNIFIED FROM ANY FINANCIAL LIABILITY FOR THAT ACTION. THE ASSOCIATION
SHALL ASSIGN ANY INCURRED COST BASED ON THIS CIVIL ACTION AS EITHER A
MONETARY JUDGEMENT AGAINST THE DIRECTOR OR A COMMON EXPENSE ASSESSMENT
PURSUENT TO SECTION 1256 OF THIS CHAPTER, TO ANY DIRECTOR FOUND LIABLE FOR
BREACH OF DUTY.
HD. Except as provided in the declaration, within thirty days after
adoption of any proposed budget for the condominium, the board of directors
shall provide a summary of the budget to all the unit owners. Unless the
board of directors is expressly authorized in the declaration to adopt and
amend budgets from time to time, any budget or amendment shall be ratified
by the unit owners in accordance with the procedures set forth in this
subsection. If ratification is required, the board of directors shall set
a date for a meeting of the unit owners to consider ratification of the
budget not fewer than fourteen nor more than thirty days after mailing of
the summary. Unless at that meeting a majority of all the unit owners or
any larger vote specified in the declaration rejects the budget, the budget
is ratified, whether or not a quorum is present. If the proposed budget is
rejected, the periodic budget last ratified by the unit owners shall be
continued until such time as the unit owners ratify a subsequent budget
proposed by the board of directors.
IE. The declaration may provide for a period of declarant control of
the association, during which period a declarant or persons designated by
the declarant may appoint and remove the officers and members of the board
of directors. Regardless of the period provided in the declaration, a
period of declarant control terminates no later than the earlier of:
1. Ninety days after conveyance of seventy-five percent of the units
that may be created to unit owners other than a declarant.
2. Four years after all declarants have ceased to offer units for
sale in the ordinary course of business.
JF. A declarant may voluntarily surrender the right to appoint and
remove officers and members of the board of directors before termination of
the period prescribed in subsection E of this section, but in that event
the declarant may require, for the duration of the period of declarant
control, that specified actions of the association or board of directors,
as described in a recorded instrument executed by the declarant, be approved
by the declarant before they become effective.
KG. Not later than the termination of any period of declarant control
the unit owners shall elect a board of directors of at least three members,
at least a majority of whom must be unit owners. The board of directors
shall elect the officers. The board members and officers shall take office
on election.
LH. Notwithstanding any provision of the declaration or bylaws to
the contrary, all of the following apply to a meeting at which a member ofthe board of directors, other than a member appointed by the declarant, is
proposed to be removed from the board of directors:
1. The unit owners who are eligible to vote at the time of the meeting
may remove any member of the board of directors, other than a member
appointed by the declarant, by a majority vote of those voting on the matter
at a meeting of the unit owners.
2. The meeting of the unit owners shall be called pursuant to this
section and action may be taken only if a quorum is present.
3. The unit owners may remove any member of the board of directors
with or without cause, other than a member appointed by the declarant.
4. For purposes of calling for removal of a member of the board of
directors, other than a member appointed by the declarant, the following
apply:
(a) In an association with one thousand or fewer members, on receipt
of a petition that calls for removal of a member of the board of directors
and that is signed by the number of persons who are eligible to vote in the
association at the time the person signs the petition equal to at least
twenty-five percent of the votes in the association or by the number of
persons who are eligible to vote in the association at the time the person
signs the petition equal to at least one hundred votes in the association,
whichever is less, the board shall call and provide written notice of a
special meeting of the association as prescribed by section 33-1248,
subsection B.
(b) Notwithstanding section 33-1248, subsection B, in an association
with more than one thousand members, on receipt of a petition that calls
for removal of a member of the board of directors and that is signed by the
number of persons who are eligible to vote in the association at the time
the person signs the petition equal to at least ten percent of the votes in
the association or by the number of persons who are eligible to vote in the
association at the time the person signs the petition equal to at least one
thousand votes in the association, whichever is less, the board shall call
and provide written notice of a special meeting of the association. The
board shall provide written notice of a special meeting as prescribed by
section 33-1248, subsection B.
(c) The special meeting shall be called, noticed and held within
thirty days after receipt of the petition.
(d) For purposes of a special meeting called pursuant to this
subsection, a quorum is present if the number of owners who are eligible to
vote in the association at the time the person attends the meeting equal to
at least twenty percent of the votes of the association or the number of
persons who are eligible to vote in the association at the time the person
attends the meeting equal to at least one thousand votes, whichever is less,
is present at the meeting in person or as otherwise permitted by law.
(e) If a civil action is filed regarding the removal of a board
member, the prevailing party in the civil action shall be awarded its
reasonable attorney fees and costs.
(f) The board of directors shall retain all documents and other
records relating to the proposed removal of the member of the board of
directors and any election or other action taken for that director’s
replacement for at least one year after the date of the special meeting and
shall permit members to inspect those documents and records pursuant to
section 33-1258.
(g) A petition that calls for the removal of the same member of the
board of directors shall not be submitted more than once during each term
of office for that member.
5. On removal of at least one but fewer than a majority of the members
of the board of directors at a special meeting of the membership calledpursuant to this subsection, the vacancies shall be filled as provided in
the condominium documents.
6. On removal of a majority of the members of the board of directors
at a special meeting of the membership called pursuant to this subsection,
or if the condominium documents do not provide a method for filling board
vacancies, the association shall hold an election for the replacement of
the removed directors at a separate meeting of the members of the association
that is held not later than thirty days after the meeting at which the
members of the board of directors were removed.
7. A member of the board of directors who is removed pursuant to this
subsection is not eligible to serve on the board of directors again until
after the expiration of the removed board member’s term of office, unless
the condominium documents specifically provide for a longer period of
ineligibility.
MI. For an association in which board members are elected from
separately designated voting districts, a member of the board of directors,
other than a member appointed by the declarant, may be removed only by a
vote of the members from that voting district, and only the members from
that voting district are eligible to vote on the matter or be counted for
purposes of determining a quorum.
NJ. Unless any provision in the condominium documents requires an
annual audit by a certified public accountant, the board of directors shall
provide for an annual financial audit, review or compilation of the
association. The audit, review or compilation shall be completed no later
than one hundred eighty days after the end of the association’s fiscal year
and shall be made available on request to the unit owners within thirty days
after its completion.
OK. This section does not apply to timeshare plans or associations,
or the period of declarant control under timeshare instruments, that are
subject to chapter 20 of this title.
33-1811. Board of directors; POWERS: DUTIES; INDEMNIFICATIONS;
LIABILITIES; contracts; conflict
A. EXCEPT AS PROVIDED IN THE DECLARATION, THE BYLAWS, SUBSECTION B OF
THIS SECTION OR OTHER PROVISIONS OF THIS CHAPTER, THE BOARD OF DIRECTORS MAY
ACT IN ALL INSTANCES ON BEHALF OF THE ASSOCIATION.
B. THE BOARD OF DIRECTORS SHALL NOT ACT ON BEHALF OF THE ASSOCIATION
TO AMEND THE DECLARATION, TERMINATE THE PLANNED COMMUNITY, ELECT MEMBERS
OF THE BOARD OF DIRECTORS OR DETERMINE THE QUALIFICATIONS, POWERS AND
DUTIES OR TERMS OF OFFICE OF BOARD OF DIRECTORS’ MEMBERS.
C. If any contract, decision or other action for compensation taken
by or on behalf of the board of directors would benefit any member of the
board of directors or any person who is a parent, grandparent, spouse, child
or sibling of a member of the board of directors or a parent or spouse of
any of those persons, that member of the board of directors shall declare a
conflict of interest for that issue. The member shall declare the conflict
in an open meeting of the board before the board discusses or takes action
on that issue and that member may NOT PARTICIPATE IN THE DELIBERATIONS OR
then vote on that issue. THE DECLARATION OF CONFLICT SHALL BE RECORDED IN
THE MINUTES OF THIS MEETING. Any contract entered into in violation of this section is void
and unenforceable. ADDITIONALLY, ANY DIRECTOR THAT KNOWINGLY VIOLATES THIS
SECTION COMMITS A BREACH OF DUTY PURSUANT TO SUBSECTION E, AND SUBJECT TO
THE PROVISIONS OF SUBSECTIONS F AND G OF THIS SECTION
D. IN ADDITION TO DUTIES IMPOSED BY OTHER SECTIONS OF THIS CHAPTER AND
THE COMMUNITY DOCUMENTS, THE ASSOCIATION THRU ITS BOARD OF DIRECTORS, HAS
THE FOLLOWING DUTIES TO THE MEMBERS OF THE PLANNED COMMUNITY AS A WHOLE:1. TO ACT WITH THE CARE AN ORDINARILY PRUDENT PERSON IN A LIKE POSITION
WOULD EXERCISE UNDER SIMILAR CIRCUMSTANCES IN MANAGING AND MAINTAINING THE
COMMON PROPERTY AND IN PROTECTING AND MANAGING THE FINANCIAL ASSETS AND
AFFAIRS OF THE ASSOCIATION.
2. TO TREAT MEMBERS FAIRLY, AND TO ENSURE THAT THIS DUTY IS REQUIRED OF
ANY AGENT ACTING ON ITS BEHALF.
3. TO ACT REASONABLY IN THE EXCERCIZE OF ITS DISCRETIONARY POWERS
INCLUDING RULEMAKING, ENFORCEMENT, AND DESIGN-CONTROL POWERS.
4. TO PROVIDE MEMBERS REASONABLE ACCESS TO INFORMATION ABOUT THE
ASSOCIATION, THE COMMON PROPERTY, AND THE FINANCIAL AFFAIRS OF THE
ASSOCIATION PURSUENT TO SECTION 1805 OF THIS CHAPTER, AND TO ENSURE THAT THIS
DUTY IS REQUIRED OF ANY MANAGING AGENT ACTING ON ITS BEHALF.
E. THE DIRECTORS AND OFFICERS OF A PLANNED COMMUNITY ASSOCIATION
HAVE A DUTY TO THE ASSOCIATION TO ACT IN GOOD FAITH, TO ACT IN COMPLIANCE WITH
AND WITHIN THE AUTHORITY OF THE LAW AND THE COMMUNITY DOCUMENTS, TO DEAL
FAIRLY WITH THE ASSOCIATION AND ITS MEMBERS, AND TO USE ORDINARY CARE AND
PRUDENCE IN PERFORMING THEIR FUNCTIONS.
F. THE ASSOCIATION OR ITS DIRECTORS AND OFFICERS ARE INDEMNIFIED FROM
ALL LIABLE FOR ANY ACTION TAKEN OR ANY FAILURE TO TAKE ANY ACTION IF THE
DIRECTOR’S DUTIES WERE PERFORMED IN COMPLIANCE WITH SUBSECTION D AND E. IN
ANY PROCEEDING COMMENCED UNDER THIS SECTION, A DIRECTOR HAS ALL OF THE
DEFENSES AND PRESUMPTIONS ORDINARILY AVAILABLE TO A DIRECTOR. A DIRECTOR IS
PRESUMED IN ALL CASES TO HAVE ACTED, FAILED TO ACT OR OTHERWISE DISCHARGED
SUCH DUTIES IN ACCORDANCE WITH SUBSECTION D AND E. THE BURDEN IS ON THE
PARTY CHALLENGING THE ASSOCIATION’S OR DIRECTOR’S ACTION, FAILURE TO ACT OR
OTHER DISCHARGE OF DUTIES TO ESTABLISH A BREACH OF DUTY BY CLEAR AND
CONVINCING EVIDENCE OF FACTS REBUTTING THE PRESUMPTION. UNLESS THE BREACH
OF DUTY IS BASED ON ANY ACTION OUTSIDE THE AUTHORITY OF THE ASSOCIATION OR
INDIVIDUAL DIRECTOR TO TAKE, THE CHALLENGER HAS AN ADDITIONAL BURDEN OF
PROVING THAT THE ACTION BY THE ASSOCIATION OR DIRECTOR CAUSED OR THREATENS
TO CAUSE HARM TO THE MEMBER INDIVIDUALLY OR TO THE INTEREST OF THE PLANNED
COMMUNITY.
G. ANY DIRECTOR FOUND IN BREECH OF DUTY BY A COURT OF APPROPRIATE
JURISDICTION, UNDER SUBSECTION F MAY BE HELD PERSONALLY LIABLE FOR ANY
RESTITUTION, DAMAGES, FINES AND LEGAL FEES INCURRED BY THE ASSOCIATION OR
AWARDED BY THE COURT AS A RESULT OF THIS CIVIL ACTION. LIABILITY SHALL BE
BASED ON DIRECT ACTIONS THAT CAUSED THE BREACH OF DUTY, OR FAILURE TO ACT
TO PREVENT THE BREACH OF DUTY AS DETERMINED BASED ON THE FACTS OF THE CASE.
ANY DIRECTOR THAT ABSTAINED FROM VOTING, OR ACTED IN GOOD FAITH ON THE
DIRECT ADVICE OF LEGAL COUNSEL, OR VOTED IN THE MINORITY IN OPPOSITION TO AN
ACTON OR FAILURE TO ACT THAT RESULTED IN THIS BREACH OF DUTY IS INDEMNIFIED
FROM ANY FINANCIAL LIABILITY FOR THAT ACTION. THE ASSOCIATION SHALL ASSIGN
ANY INCURRED COST BASED ON THIS CIVIL ACTION AS EITHER A MONETARY JUDGEMENT
AGAINST THE DIRECTOR OR A COMMON EXPENSE ASSESSMENT PURSUENT TO SECTION
1807 OF THIS CHAPTER, TO ANY DIRECTOR FOUND LIABLE FOR BREACH OF DUTY.
2023 Common Interest Community Common Expense; Liens
33-1255. Assessments for common expenses; applicability
A. Until the association makes a common expense assessment, the
declarant shall pay all common expenses. After any assessment has been made
by the association, assessments shall be made at least annually, based on a
budget adopted at least annually by the association.
B. Except for assessments under subsections C, D, AND E and F of this
section, all common expenses shall be assessed against all the units in
accordance with the allocations set forth in the declaration pursuant to
section 33-1217, subsection A. Any past due common expense assessment or
installment bears interest at the rate established by the board subject to
the condominium documents.
C. Unless otherwise provided for in the declaration all of the
following apply:
1. Any common expense associated with the maintenance, repair or
replacement of a limited common element shall be equally assessed against
the units to which the limited common element is assigned.
2. Any common expense or portion of a common expense benefitting
fewer than all of the units shall be assessed exclusively against the units
benefitted.
CD. Assessments to pay a judgment against the association may be made
only against the units in the condominium at the time the judgment was
entered, in proportion to their common expense liabilities.
DE. If any common expense is caused by the misconduct of any unit
owner, the association may assess that expense exclusively against that
unit.
EF. If the declaration so provides, the common expense assessment
for any unit on which construction has not been substantially completed may
be an amount which is not less than twenty-five per cent of the common
expense assessment for units which have been substantially completed.
However, this reduced common expense assessment shall not be permitted,
unless the declarant is obligated under the declaration to pay to the
association any deficiency in monies due to the declarant having paid a
reduced common assessment and necessary for the association to be able to
timely pay all common expenses.
FG. If common expense liabilities are reallocated, common expense
assessments and any installment on the assessments not yet due shall be
recalculated in accordance with the reallocated common expense liabilities.
GH. This section does not apply to timeshare plans or associations
that are subject to chapter 20 of this title.
33-1256. Lien for COMMON EXPENSE assessments; priority;
mechanics’ and materialmen’s liens; JUDGEMENT
LIENS; notice; applicability
A. The association has a lien on a unit for any COMMON EXPENSE
assessment levied against that unit from the time the COMMON EXPENSE
assessment becomes due. The association’s lien for COMMON EXPENSE
assessments INCLUDES ,for ALL OUTSTANDING COMMON EXPENSE ASSESSMENTS,
REASONABLE charges for late payment of those assessments, for reasonable
collection COSTS OR fees INCURRED OR APPLIED BY THE ASSOCIATION ON DELINQUENT
COMMON EXPENSE ASSESSMENTS, REASONABLE INTEREST CHARGES IF AUTHORIZED IN
THE DECLARATION and for reasonable attorney fees and costs incurred AND
AWARDED BY THE COURT IN ANY ACTION with respect to those assessments. IF A
COMMON EXPENSE ASSESSMENT IS PAYABLE IN INSTALLMENTS, THE FULL AMOUNT OF
THE ASSESSMENT IS A LIEN FROM THE TIME THE FIRST INSTALLMENT OF THE
ASSESSMENT BECOMES DUE.B. THE COMMON EXPENSE ASSESSMENT LIEN may be foreclosed in the same
manner as a mortgage on real estate SUBJECT TO THE PROVISIONS OF CHAPTER 8
OF THIS TITLE but may be foreclosed only IF:
1. THE ASSOCIATION BOARD OF DIRECTORS IN A FORMAL OPEN MEETING, DULY
NOTICED THAT THIS ACTION WILL BE CONSIDERED, AFTER THE APPLICATION OF
REASONABLE ACCOMMODATIONS FOR VALID MEDICAL OR FINANCIAL HARDSHIPS, OR
ACCOUNTING ERRORS, VOTES TO INITIATE FORECLOSURE ACTION ON A UNIT, AND IF
APPROVED INFORMS THE UNIT OWNER OF THAT DECISION BY CERTIFIED MAIL RETURN
RECEIPT REQUIRED. THE UNIT OWNER HAS TEN BUSINESS DAYS FROM THE RECEIPT OF
OR REFUSAL TO ACCEPT THE CERTIFIED LETTER, TO PAY OFF ANY OUTSTANDING COMMON
EXPENSE ASSESSMENTS BEFORE THE FORECLOSURE ACTION CAN BE FILED.
2. if Tthe owner has been AND REMAINS delinquent in the payment of
COMMON EXPENSE ASSESSMENTS ALONE monies secured by the lien, excluding
reasonable collection fees, reasonable attorney fees and charges for late
payment of and costs incurred with respect to those assessments, for a
period of one year or in the amount of $1,200 or more, whichever occurs
first, as determined on the date the action is filed.
C. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS TO THE
CONTRARY, Fees, charges, late charges, monetary penalties and interest
charged pursuant to section 33-1242, subsection A, paragraphs 10, 11 and
12, other than charges for late payment of assessments, are not enforceable
as COMMON EXPENSE assessments under this section. If an assessment is
payable in installments, the full amount of the assessment is a lien from
the time the first installment of the assessment becomes due. The
association has a lien for fees, charges, late charges, other than charges
for late payment of assessments, monetary penalties or interest charged
pursuant to section 33-1242, subsection A, paragraphs 10, 11 and 12 after
the entry of a judgment in a civil suit for those fees, charges, late
charges, monetary penalties or interest from a court of competent
jurisdiction and the recording of that judgment in the office of the county
recorder as otherwise provided by law. The association’s JUDGEMENT lien
for monies PRESCRIBED IN THIS SUBSECTION other than for assessments, for
charges for late payment of those assessments, for reasonable collection
fees and for reasonable attorney fees and costs incurred with respect to
those assessments may not be foreclosed and is effective only on conveyance
of any interest in the real property.
DB. A lien for COMMON EXPENSE assessments, for charges for late
payment of those assessments, for reasonable collection fees and for
reasonable attorney fees and costs incurred with respect to those
assessments under this section is prior to all other liens, interests and
encumbrances on a unit except:
1. Liens and encumbrances recorded before the recordation of the
declaration.
2. A recorded first mortgage on the unit, a seller’s interest in a
first contract for sale pursuant to chapter 6, article 3 of this title on
the unit recorded prior to the lien arising pursuant to subsection A of this
section or a recorded first deed of trust on the unit.
3. Liens for real estate taxes and other governmental assessments or
charges against the unit.
EC. Subsection DB of this section does not affect the priority of
mechanics’ or materialmen’s liens or the priority of JUDGEMENT liens for
other assessments made by the association. The lien under this section is
not subject to chapter 8 of this title.
FD. Unless the declaration otherwise provides, if two or more
associations have liens for COMMON EXPENSE assessments created at any time
on the same real estate, those liens have equal priority.GE. Recording of the declaration constitutes record notice and
perfection of the lien for COMMON EXPENSE assessments., for charges for late
payment of those assessments, for reasonable collection fees and for
reasonable attorney fees and costs incurred with respect to those
assessments. Further recordation of any claim of lien for COMMON EXPENSE
assessments under this section is not required.
HF. A lien for unpaid COMMON EXPENSE assessments is extinguished
unless proceedings to enforce the lien are instituted within six years after
the full amount of the assessments becomes due.
IG. This section does not prohibit:
1. Actions to recover sums for which subsection A OR C of this section
creates a lien.
2. An association from taking a deed in lieu of foreclosure.
JH. A judgment or decree in any action brought under this section
shall include costs and reasonable attorney fees for the prevailing party.
KI. The association on written request shall furnish to a lienholder,
escrow agent, unit owner or person designated by a unit owner a statement
setting forth the amount of ANY unpaid assessments LIENS PURSUENT TO
SUBSECTIONS A AND C OF THIS SECTION against the unit. The statement shall
be furnished within ten days after receipt of the request. and tThe statement
is binding on the association, the board of directors and every unit owner
if the statement is requested by an escrow agency that is licensed pursuant
to title 6, chapter 7. Failure to provide the statement to the escrow agent
within the time provided for in this subsection extinguishes any lien for
any unpaid assessment then due.
LJ. Notwithstanding any provision in the condominium documents or in
any contract between the association and a management company, OR ANY OTHER
AGENT OF THE ASSOCIATION, unless the unit owner directs otherwise, all
payments received on a unit owner’s account shall be applied first to any
unpaid CURRENT THEN DELINQUENT COMMON EXPENSE assessments, unpaid charges
for late payment of those assessments, unpaid reasonable collection COST OR
fees, UNPAID INTEREST CHARGES and unpaid AWARDED attorney fees and costs
incurred with respect to those assessments, in that order, with any remaining
amounts applied next to other unpaid fees, charges and monetary penalties
or interest and late charges on any of those amounts.
K. For a delinquent account for unpaid assessments or for charges
related to unpaid assessments, the association shall provide the following
written notice to the unit owner at the unit owner’s address as provided to
the association at least thirty days before authorizing an attorney, or a
collection agency that is not acting as the association’s managing agent,
to begin collection activity on behalf of the association:
Your account is delinquent. If you do not bring your account
current or make arrangements that are approved by the
association to bring your account current within thirty days
after the date of this notice, your account will be turned over
for further collection proceedings. Such collection
proceedings could include bringing a foreclosure action against
your property.
The notice shall be in boldfaced type or all capital letters and shall
include the contact information for the person that the unit owner may
contact to discuss payment. The notice shall be sent by certified mail,
return receipt requested, and may be included within other correspondence
sent to the unit owner regarding the unit owner’s delinquent account.
L. Beginning January 1, 2020, except for condominiums that have fewer
than fifty units and that do not contract with a third party to perform
management services on behalf of the association, the association shall
provide a statement of account in lieu of a periodic payment book to theunit owner with the same frequency that assessments are provided for in the
declaration. The statement of account shall include the current account
balance due and the immediately preceding ledger history. If the association
offers the statement of account by electronic means, a unit owner may opt
to receive the statement electronically. The association may stop providing
any further statements of account to a unit owner if collection activity
begins by an attorney, or a collection agency that is not acting as the
association’s managing agent, regarding that unit owner’s unpaid account.
After collection activity begins, a unit owner may request statements of
account by written request to the attorney or collection agency. Any request
by a unit owner for a statement of account after collection activity begins
by an attorney or a collection agency that is not acting as the association’s
managing agent must be fulfilled by the attorney or the collection agency
responsible for the collection. The statement of account provided by the
attorney or collection agency responsible for the collection shall include
all amounts claimed to be owing to resolve the delinquency through the date
set forth in the statement, including attorney fees and costs, regardless
of whether such amounts have been reduced to judgment.
M. An agent for the association may collect on behalf of the
association directly from a unit owner the assessments and other amounts
owed by cash or check, by mailed or hand-delivered bank drafts, checks,
cashier’s checks or money orders, by credit, charge or debit card or by
other electronic means. For any form of payment other than for cash or for
mailed or hand-delivered bank drafts, checks, cashier’s checks or money
orders, the agent may charge a convenience fee to the unit owner that is
approximately the amount charged to the agent by a third-party service
provider.
N. FOR THE PURPOSE OF THIS SECTION COMMON EXPENSE ASSESSMENTS ARE
DEFINED AS THE ANNUAL, SPECIAL OR SUPPLEMENTAL ASSESSMENTS PAYABLE BY ALL
UNIT OWNERS OF THE CONDOMINIUM TO MAINTAIN ALL COMMON PROPERTY AND TO ACCOUNT
FOR THE EXPENSES OF THE ASSOCIATION AND THE APPLICATION OF RESERVES, OR TO
FUND COMMON PROPERTY UPGRADES OR LONG-TERM MAINTENANCE OF COMMON PROPERTY,
AS SPECIFIED IN THE DECLARATION. IT ALSO INCLUDES ANY ASSESSMENT MADE TO AN
INDIVIDUAL UNIT OWNER TO PAY FOR THE REPAIR OF DAMAGES TO COMMON PROPERTY
CAUSED BY THAT UNIT OWNER OR ANY OTHER OCCUPANT OF THE OWNER’S UNIT, OR AS
OTHERWISE DIRECTLY AUTHORIZED IN THIS CHAPTER.
MN. This section does not apply to timeshare plans or associations
that are subject to chapter 20 of this title.
33-1807. Lien for COMMON EXPENSE assessments; priority;
mechanics’ and materialmen’s liens; JUDGEMENT
LIENS; notice
A. The association has a lien on a PROPERTY unit for any COMMON
EXPENSE assessment levied against that PROPERTY unit from the time the
assessment becomes due. The association’s lien for COMMON EXPENSE
assessments, INCLUDES for ALL OUTSTANDING COMMON EXPENSE ASSESSMENTS,
REASONABLE charges for late payment of those assessments, for reasonable
collection COSTS OR fees INCURRED OR APPLIED BY THE ASSOCIATION ON DELINQUENT
COMMON EXPENSE ASSESSMENTS, REASONABLE INTEREST CHARGES IF AUTHORIZED IN
THE DECLARATION and for reasonable attorney fees and costs incurred AND
AWARDED BY THE COURT IN ANY ACTION with respect to those assessments. IF A
COMMON EXPENSE ASSESSMENT IS PAYABLE IN INSTALLMENTS, THE FULL AMOUNT OF
THE ASSESSMENT IS A LIEN FROM THE TIME THE FIRST INSTALLMENT OF THE
ASSESSMENT BECOMES DUE.B. THE COMMON EXPENSE ASSESSMENT LIEN may be foreclosed in the same
manner as a mortgage on real estate SUBJECT TO THE PROVISIONS OF CHAPTER 8
OF THIS TITLE but may be foreclosed only if:
1. THE ASSOCIATION BOARD OF DIRECTORS IN A FORMAL OPEN MEETING, DULY
NOTICED THAT THIS ACTION WILL BE CONSIDERED, AFTER THE APPLICATION OF
REASONABLE ACCOMMODATIONS FOR VALID MEDICAL OR FINANCIAL HARDSHIPS, OR
ACCOUNTING ERRORS, VOTES TO INITIATE FORECLOSURE ACTION ON A MEMBER’S
PROPERTY, AND IF APPROVED INFORMS THE MEMBER OF THAT DECISION BY CERTIFIED
MAIL RETURN RECEIPT REQUIRED. THE MEMBER HAS 10 BUSINESS DAYS FROM THE
RECEIPT OF OR REFUSAL TO ACCEPT THE CERTIFIED LETTER, TO PAY OFF ANY
OUTSTANDING COMMON EXPENSE ASSESSMENTS BEFORE THE FORCLOSURE ACTION CAN BE
FILED
2. Tthe MEMBER owner has been AND REMAINS delinquent in the payment
of COMMON EXPENSE ASSESSMENTS ALONE, monies secured by the lien, excluding
reasonable collection fees, reasonable attorney fees and charges for late
payment of and costs incurred with respect to those assessments, for a
period of one year or in the amount of $1,200 or more, whichever occurs
first, as determined on the date the action is filed.
C. NOTWITHSTANDING ANY PROVISION OF THE COMMUNITY DOCUMENTS TO THE
CONTRARY, Fees, charges, late charges, monetary penalties and interest
charged pursuant to section 33-1803, other than charges for late payment of
assessments are not enforceable as COMMON EXPENSE assessments under this
section. If an assessment is payable in installments, the full amount of
the assessment is a lien from the time the first installment of the
assessment becomes due. The association has a lien for fees, charges, late
charges, other than charges for late payment of assessments, monetary
penalties or interest charged pursuant to section 33-1803 after the entry
of a judgment in a civil suit for those fees, charges, late charges, monetary
penalties or interest from a court of competent jurisdiction and the
recording of that judgment in the office of the county recorder as otherwise
provided by law. The association’s JUDGEMENT lien for monies AS PRESCRIBED
IN THIS SUBSECTION other than for assessments, for charges for late payment
of those assessments, for reasonable collection fees and for reasonable
attorney fees and costs incurred with respect to those assessments may not
be foreclosed and is effective only on conveyance of any interest in the
real property.
DB. A lien for COMMON EXPENSE assessments, for charges for late
payment of those assessments, for reasonable collection fees and for
reasonable attorney fees and costs incurred with respect to those
assessments under this section is prior to all other liens, interests and
encumbrances on a PROPERTYunit except:
1. Liens and encumbrances recorded before the recordation of the
declaration.
2. A recorded first mortgage on the PROPERTYunit, a seller’s interest
in a first contract for sale pursuant to chapter 6, article 3 of this title
on the unit recorded prior to the lien arising pursuant to subsection A of
this section or a recorded first deed of trust on the PROPERTYunit.
3. Liens for real estate taxes and other governmental assessments or
charges against the PROPERTYunit.
EC. Subsection D B of this section does not affect the priority of
mechanics’ or materialmen’s liens or the priority of JUDGEMENT liens for
other assessments made by the association. The lien under this section is
not subject to chapter 8 of this title.
FD. Unless the declaration otherwise provides, if two or more
associations have liens for COMMON EXPENSE assessments created at any time
on the same real estate those liens have equal priority.GE. Recording of the declaration constitutes record notice and
perfection of the lien for COMMON EXPENSE assessments. , for charges for
late payment of assessments, for reasonable collection fees and for
reasonable attorney fees and costs incurred with respect to those
assessments. Further recordation of any claim of lien for COMMON EXPENSE
assessments under this section is not required.
HF. A lien for an unpaid COMMON EXPENSE assessment is extinguished
unless proceedings to enforce the lien are instituted within six years after
the full amount of the assessment becomes due.
IG. This section does not prohibit:
1. Actions to recover amounts for which subsection A OR C of this
section creates a lien.
2. An association from taking a deed in lieu of foreclosure.
JH. A judgment or decree in any action brought under this section
shall include costs and reasonable attorney fees for the prevailing party.
KI. On written request, the association shall furnish to a
lienholder, escrow agent, MEMBER unit owner or person designated by a MEMBER
unit owner a statement setting forth the amount of any unpaid assessment
LIEN PURSUENT TO SUBSECTION A OR C OF THIS SECTION against the
PROPERTYunit. The association shall furnish the statement within ten days
after receipt of the request,, and t The statement is binding on the
association, the board of directors and every MEMBER unit owner if the
statement is requested by an escrow agency that is licensed pursuant to
title 6, chapter 7. Failure to provide the statement to the escrow agent
within the time provided for in this subsection extinguishes any lien for
any unpaid assessment then due.
LJ. Notwithstanding any provision in the community documents or in
any contract between the association and a management company, OR ANY OTHER
AGENT OF THE ASSOCIATION, unless the member directs otherwise, all payments
received on a member’s account shall be applied first to any unpaid CURRENT
THEN DELINQUENT COMMON EXPENSE assessments, unpaid charges for late payment
of those assessments, unpaid reasonable collection COSTS OR fees, UNPAID
INTEREST CHARGES and unpaid AWARDED attorney fees and costs incurred with
respect to those assessments, in that order, with any remaining amounts
applied next to other unpaid fees, charges and monetary penalties or interest
and late charges on any of those amounts.
K. For a delinquent account for unpaid assessments or for charges
related to unpaid assessments, the association shall provide the following
written notice to the member at the member’s address as provided to the
association at least thirty days before authorizing an attorney, or a
collection agency that is not acting as the association’s managing agent,
to begin collection activity on behalf of the association:
Your account is delinquent. If you do not bring your account
current or make arrangements that are approved by the
association to bring your account current within thirty days
after the date of this notice, your account will be turned over
for further collection proceedings. Such collection
proceedings could include bringing a foreclosure action against
your property.
The notice shall be in boldfaced type or all capital letters and shall
include the contact information for the person that the member may contact
to discuss payment. The notice shall be sent by certified mail, return
receipt requested, and may be included within other correspondence sent to
the member regarding the member’s delinquent account.
L. Beginning January 1, 2020, except for planned communities that
have fewer than fifty lots and that do not contract with a third party to
perform management services on behalf of the association, the associationshall provide a statement of account in lieu of a periodic payment book to
the member with the same frequency that assessments are provided for in the
declaration. The statement of account shall include the current account
balance due and the immediately preceding ledger history. If the association
offers the statement of account by electronic means, a member may opt to
receive the statement electronically. The association may stop providing
any further statements of account to a member if collection activity begins
by an attorney, or a collection agency that is not acting as the
association’s managing agent, regarding that member’s unpaid account. After
collection activity begins, a member may request statements of account by
written request to the attorney or collection agency. Any request by a
member for a statement of account after collection activity begins by an
attorney or a collection agency that is not acting as the association’s
managing agent must be fulfilled by the attorney or the collection agency
responsible for the collection. The statement of account provided by the
attorney or collection agency responsible for the collection shall include
all amounts claimed to be owing to resolve the delinquency through the date
set forth in the statement, including attorney fees and costs, regardless
of whether such amounts have been reduced to judgment.
M. An agent for the association may collect on behalf of the
association directly from a member the assessments and other amounts owed
by cash or check, by mailed or hand-delivered bank drafts, checks, cashier’s
checks or money orders, by credit, charge or debit card or by other
electronic means. For any form of payment other than for cash or for mailed
or hand-delivered bank drafts, checks, cashier’s checks or money orders,
the agent may charge a convenience fee to the member that is approximately
the amount charged to the agent by a third-party service provider.
N. FOR THE PURPOSE OF THIS SECTION COMMON EXPENSE ASSESSMENTS ARE
DEFINED AS THE ANNUAL, SPECIAL OR SUPPLEMENTAL ASSESSMENTS PAYABLE BY ALL
MEMBERS OF THE PLANNED COMMUNITY ASSOCIATION TO MAINTAIN ALL COMMON PROPERTY
AND TO ACCOUNT FOR THE EXPENSES OF THE ASSOCIATION AND THE APPLICATION OF
RESERVES, OR TO FUND COMMON PROPERTY UPGRADES OR LONG-TERM MAINTENANCE OF
COMMON PROPERTY, AS SPECIFIED IN THE DECLARATION. IT ALSO INCLUDES ANY
ASSESSMENT MADE TO AN INDIVIDUAL MEMBER TO PAY FOR THE REPAIR OF DAMAGES TO
COMMON PROPERTY CAUSED BY THAT MEMBER OR ANY OTHER OCCUPANT OF THE MEMBER’S
HOME, OR AS OTHERWISE DIRECTLY AUTHORIZED IN THIS CHAPTER.
2023 Common Interest Community Meetings; Voting
33-1248. Open meetings; exceptions
A. Notwithstanding any provision in the declaration, bylaws or other
documents to the contrary, all FORMAL meetings of the unit owners’
association and the board of directors, and any DESIGN REVIEW, RULE MAKING,
ENFORCEMENT OR FINANCIAL ADVISORY regularly scheduled committee meetings
HOWEVER DENOMINATED, are open to all members of the association or any
person designated by a member in writing as the member’s representative and
all members or designated representatives so desiring shall be permitted to
attend and speak at an appropriate time during the deliberations and
proceedings. The board OR COMMITTEE may place reasonable time restrictions
on those persons speaking during the meeting but shall permit a member or a
member’s designated representative to speak once after the board OR
COMMITTEE has discussed a specific agenda item but before the board OR
COMMITTEE takes formal action on that item in addition to any other
opportunities to speak. The board OR COMMITTEE shall provide for a
reasonable number of persons to speak on each side of an issue. Persons
attending may audiotape or videotape those portions of the meetings of the
board of directors OR COMMITTEES and meetings of the members that are
open. The board of directors OR COMMITTEE of the association shall not
require advance notice of the audiotaping or videotaping and may adopt
reasonable rules governing the audiotaping or videotaping of open portions
of the meetings of the board, COMMITTEE and the membership, but such rules
shall not preclude such audiotaping or videotaping by those attending,
unless the board OR COMMITTEE audiotapes or videotapes the meeting and makes
the unedited audiotapes or videotapes available to UNIT OWNERS members on
request without restrictions on its use as evidence in any dispute resolution
process. Any portion of a meeting may be closed only if that portion of the
meeting is limited to DISCUSSION OR consideration WITHOUT ACTION OR
DECISION, of one or more of the following:
1. Legal advice from an attorney for the board or the association.
On final resolution of any matter for which the board received legal advice
or that concerned pending or contemplated litigation, the board may disclose
information about that matter in an open meeting except for matters that
are required to remain confidential by the terms of a settlement agreement
or judgment.
2. Pending or contemplated litigation.
3. THE REVIEW OF ANY REPORT OR RECORD OF THE ASSOCIATION CONTAINING
OR DIRECTLY RELATED TO Personal, health or financial information about an
individual member of the association, an individual employee of the
association or an individual employee of a contractor for the association.
ALLEGED VIOLATIONS OF CONDOMINIUM DOCUMENTS ARE NOT PERSONAL INFORMATION
UNDER THIS EXCEPTION. , including records of the association directly
related to the personal, health or financial information about an individual
member of the association, an individual employee of the association or an
individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of,
health records of or specific complaints against an individual employee of
the association or an individual employee of a contractor of the association
who works under the direction of the association.
5. Discussion of a unit owner’s appeal of any violation cited or
penalty imposed by the association except on request of the affected unit
owner that the meeting be held in an open session. THE ASSOCIATION MUST
INFORM THE UNIT OWNER OF THIS OPTION AND PROVIDE THE UNIT OWNER AN
OPPORTUNITY TO CHOSE A HEARING IN EITHER OPEN OR CLOSED SESSION.B. Notwithstanding any provision in the condominium documents, all
FORMAL meetings of the unit owners’ association and the board OR DESIGNATED
COMMITTEE shall be held in this state. A meeting of the unit owners’
association shall be held at least once each year TO ELECT BOARD MEMBERS TO
FILL NEW OR EXPIRED TERMS, AND TO CONDUCT ANY OTHER BUSINESS OF THE UNIT
OWNERS. IF AN ANNUAL OR SPECIAL MEETING OF THE UNIT OWNERS IS CALLED BUT
FAILS TO SATISFY QUORUM, THAT MEETING MUST BE RE-CONVENED WITHIN FIFTEEN
DAYS, UNTIL THE MEETING OR ELECTION IS HELD. FOR ANY CONDOMINIUM WITH A
QUORUM REQUIREMENT SPECIFIED IN THE CONDOMINIUM DOCUMENTS EQUAL TO OR
GREATER THAN TWENTY-FIVE PERCENT, THE QUORUM REQUIREMENT FOR ANY RE-CONVENED
MEETINGS WILL BE HALF OF THE PREVIOUS QUORUM REQUIREMENT BUT NOT LESS THAN
TWENTY PERCENT UNTIL THE QUORUM IS SATISFIED AND THE MEETING IS HELD. ANY
ABSENTEE BALLOTS SUBMITTED FOR THE ORIGINAL MEETING REMAIN VALID FOR THE
RE-CONVENED MEETINGS.
C. THE ASSOCIATION MAY UTILIZE REMOTE MEETING TECHNOLOGY FOR MEETINGS
OF UNIT OWNERS AS LONG AS ALL UNIT OWNERS WISHING TO PARTICIPATE ARE PROVIDED
ACCESS TO THE MEETING AND ALLOWED TO SPEAK ON ANY ISSUE BEFORE THE UNIT
OWNERS, INCLUDING ANY OPEN FORUM. THE REMOTE MEETING HOST MAY NOT MUTE ANY
SPEAKER WITHIN THE TIME CONSTAINTS ESTABLISHED FOR EACH SPEAKER BY THE UNIT
OWNERS IN ADVANCE, AND WITHOUT PRIOR NOTICE TO THE SPEAKING UNIT OWNER.
PARTICIPATION IN THE REMOTE MEETING ALONG WITH ANY ABSENTEE BALLOT SUBMITTED
TOLLS TOWARD SATISFYING QUORUM.
D. Special meetings of the unit owners’ association may be called by
the president, by a majority of the board of directors or by unit owners
having at least twenty-five percent, or any lower percentage specified in
the bylaws, of the votes in the association. Not fewer than ten nor more
than fifty days in advance of any meeting of the unit owners, the secretary
shall cause notice to be hand delivered or sent prepaid by United States
mail to the mailing address of each unit or to any other mailing address
designated in writing by the unit owner. THE ASSOCIATION MAY UTILIZE E-MAIL
NOTIFICATIONS FOR THOSE MEMBERS THAT HAVE PROVIDED VALIDATED E-MAIL
ADDRESSES. The notice of any meeting of the unit owners shall state the
date, time and place of the meeting. The notice of any annual, regular or
special meeting of the unit owners SHALL PROVIDE THE ABSENTEE BALLOT TO BE
USED BY THE UNIT OWNERS AND shall also state the purpose for which the
meeting is called, including the general nature of any proposed amendment
to the declaration or bylaws, any changes in assessments that require
approval of the unit owners and any proposal to remove a director or
officer. The failure of any unit owner to receive actual notice of a meeting
of the unit owners does not affect the validity of any action taken at that
meeting.
EC. Before entering into any closed portion of a meeting of the board
of directors, or on notice of a meeting under subsection FD of this section
that will be closed, the board shall identify the paragraph under subsection
A of this section that authorizes the board to close the meeting.
FD. Notwithstanding any provision in the declaration, bylaws or other
condominium documents, for meetings of the board of directors OR DESIGNATED
COMMITTEES, that are held after the termination of declarant control of the
association, notice to unit owners of meetings of the board of directors OR
COMMITTEE shall be given at least forty-eight hours in advance of the meeting
by newsletter, conspicuous posting or any other reasonable means as
determined by the board of directors. An affidavit of notice by an officer
of the association is prima facie evidence that notice was given as
prescribed by this section. Notice to unit owners of meetings of the board
of directors is not required if emergency circumstances require action by
the board before notice can be given. Any notice of a board OR COMMITTEE
meeting shall state the date, time and place of the meeting. The failureof any unit owner to receive actual notice of a meeting of the board of
directors OR COMMITTEE does not affect the validity of any action taken at
that meeting.
G. ALL FORMAL OPEN OR CLOSED MEETINGS OF THE BOARD OF DIRECTORS MUST
PROVIDE FOR THE NOTICE OF ALL DIRECTORS, AND MAY NOT EXCLUDE ANY DULY ELECTED
OR APPOINTED BOARD MEMBERS FROM PARTICIPATING IN THAT MEETING.
HE. Notwithstanding any provision in the declaration, bylaws or other
condominium documents, for FORMAL OPEN meetings of the board of directors
OR DESIGNATED COMMITTEES, that are held after the termination of declarant
control of the association, all of the following apply:
1. The DRAFT agenda shall be POSTED OR OTHERWISE MADE available to
all unit owners ALONG WITH THE NOTICE OF THE MEETING, AT LEAST FORTY-EIGHT
HOURS PRIOR TO THE MEETING AND MAY BE REVISE AS REQUIRED BY THE BOARD
PRESIDENT OR COMMITTEE CHAIR TO ADD OR REMOVE AGENDA ITEMS BASED ON
DEVELOPMENTS SINCE THE DRAFT WAS ISSUED. attending.
2. An emergency meeting of the board of directors may be called to
discuss business or take action that cannot be delayed for the forty-eight
hours required for notice. At any emergency meeting called by the board of
directors, the board of directors may act only on emergency matters. The
minutes of the emergency meeting shall state the reason necessitating the
emergency meeting. The minutes of the emergency meeting shall be read and
approved at the next regularly scheduled meeting of the board of directors.
3. A quorum of the board of directors OR DESIGNATED COMMITTEE may
meet by VOICE, VIDEO OR REMOTE MEETING TECHNOLOGY means of A telephone
conference if a speakerphone is available in the meeting room that allows
board members and unit owners to hear all parties who are speaking during
the meeting. BOARD MEETINGS MAY BE HELD USING REMOTE MEETING TECHNOLOGY, AS
LONG AS ALL UNIT OWNERS WISHING TO PARTICIPATE ARE PROVIDED ACCESS TO THE
MEETING AND ALLOWED TO SPEAK ON ANY ISSUE BEFORE THE BOARD OR COMMITTEE
PURSUANT TO SUBSECTION A OF THIS SECTION. THE REMOTE MEETING HOST MAY NOT
MUTE ANY UNIT OWNER SPEAKING, WITIN THE TIME CONSTRAINTS ESTABLISHED BY THE
BOARD OR COMMITTEE IN ADVANCE AND WITHOUT PRIOR NOTICE TO THE SPEAKING UNIT
OWNER.
4. ANY MOTION BROUGHT FORWARD FOR ACTION OR DECISION RELATED TO
CLOSED SESSION DISCUSSIONS OR CONSIDERATIONS BY THE BOARD OF DIRECTORS
AUTHORIZED IN SUBSECTION A OF THIS SECTION MAY BE DONE IN A MANNER SO AS TO
NOT DISCLOSE ANY PRIVALEGED OR CONFIDENTIAL INFORMATION. UNIT OWNERS PRESENT
MUST BE PROVIDED AN OPPORTUNITY TO SPEAK TO THE ISSUE, PURSUANT TO SUBSECTION
A OF THIS SECTION, BUT MAY NOT QUESTION THE BOARD FOR ANY DETAILS ON THE
ISSUE OTHER THAN THE PROJECTED FINANCIAL IMPACT TO THE CONDOMINIUM BASED ON
THE PROPOSED ACTION.
54. Any quorum of the board of directors that meets informally to
discuss association business, including workshops, shall comply with the
open meeting and notice provisions of this section without regard to whether
the board votes or takes any action on any matter at that informal meeting.
BOARD MEMBERS MAY ASSEMBLE OR COMMUNICATE INFORMALLY, ATTEND CASUAL AND
SOCIAL ACTIVITIES, ATTEND WORKSHOPS, PROPOSE MEETING AGENDAS AND RECEIVE
BACKGROUND INFORMATION FOR THOSE AGENDA ITEMS, OR ATTEND INFORMAL MEETINGS
OF THE UNIT OWNERS, AND DISCUSS ASSOCIATION BUSINESS OR ISSUE EVEN IF A
QUORUM OR MORE OF THE BOARD PARTICIPATES, WITHOUT BEING SUBJECT TO THE OPEN
MEETING OR NOTICE PROVISIONS OF THIS SECTION, PROVIDED THAT:
(a) THE MEMBERS OF THE BOARD OF DIRECTORS DO NOT ATTEMPT TO CIRCUMVENT
THE TRANSPARENT AND OPEN DISCUSSION OF ASSOCIATION BUSINESS IN FORMAL OPEN
MEETINGS PRIOR TO A VOTE ON THAT ISSUE, BY ANY COMMUNICATION VERBAL OR
WRITTEN BETWEEN INDIVIDUAL OR MULTIPLE BOARD MEMBERS THAT ATTEMPTS TO
ESTABLISH CONSENSUS ON A PROPOSED COURSE OF ACTION, PRIOR TO AND OUTSIDE OF
A FORMAL BOARD MEETING.(b) NO ACTION OR DECISION IS TAKEN BY THE BOARD OF DIRECTORS IN THESE
INFORMAL SETTINGS.
6. DRAFT MINUTES OF ALL FORMAL OPEN MEETINGS OF THE BOARD, DESIGNATED
COMMITTEES OR UNIT OWNERS SHALL BE MADE AVAILABLE TO ANY UNIT OWNER UPON
REQUEST, TEN BUSINESS DAYS AFTER THE MEETING. THE ASSOCIATION MAY CHOOSE TO
POST THE DRAFT MINUTES ON ASSOCIATION BULLETIN BOARDS OR WEBSITES IF
AVAILABLE.
IF. It is the policy of this state as reflected in this section that
all FORMAL meetings of a condominium, whether meetings of the unit owners’
association or meetings of the board of directors, OR DESIGNATED COMMITTEES
of the association, be conducted openly and that notices and agendas be
provided for those meetings that contain the information that is reasonably
necessary to inform the unit owners of the matters to be discussed or decided
and to ensure that unit owners have the ability to speak after discussion
of agenda items, but before a vote of the board of directors, COMMITTEE, or
members is taken. Toward this end, any person or entity that is charged
with the interpretation of these provisions, including members of the board
or directors and any community manager, shall take into account this
declaration of policy and shall construe any provision of this section in
favor of open meetings. ANY ACTION TAKEN BY THE BOARD OF DIRECTORS OR
DESIGNATED COMMITTEE IN VIOLATION OF THE OPEN MEETING REQUIREMENTS AND
PUBLIC POLICY STATEMENT OF THIS SECTION IS INVALID AND VOID.
JG. This section does not apply to timeshare plans or associations
that are subject to chapter 20 of this title.
33-1249. Quorums; applicability
A. Unless the bylaws provide otherwise, a quorum is present
throughout any meeting of the association if persons entitled to cast at
least twenty-five per cent PERCENT of the votes in the association are
present in person or AS OTHERWISE PROVIDED BY LAW by proxy at the beginning
of the meeting.
B. Unless the bylaws specify a larger percentage, a quorum is deemed
present throughout any meeting of the board of directors if persons entitled
to cast at least fifty per cent of the votes on that board are present at
the beginning of the meeting.
C. This section does not apply to timeshare plans or associations
that are subject to chapter 20 of this title.
33-1250. Voting; proxies; absentee ballots; applicability;
definition
A. If only one of the multiple owners of a unit is present at a
meeting of the association, the owner is entitled to cast all the votes
allocated to that unit. If more than one of the multiple owners are present,
the votes allocated to that unit may be cast only in accordance with the
agreement of a majority in interest of the multiple owners unless the
declaration expressly provides otherwise. There is majority agreement if
any one of the multiple owners casts the votes allocated to that unit without
protest being made promptly to the person presiding over the meeting by any
of the other owners of the unit.
B. During the period of declarant control, votes allocated to a unit
may be cast pursuant to a proxy duly executed by a unit owner. If a unit
is owned by more than one person, each owner of the unit may vote or register
protest to the casting of votes by the other owners of the unit through aduly executed proxy. A unit owner may not revoke a proxy given pursuant to
this section except by actual notice of revocation to the person presiding
over a meeting of the association. A proxy is void if it is not dated or
purports to be revocable without notice. The proxy is revoked on
presentation of a later dated proxy executed by the same unit owner. A
proxy terminates one year after its date, unless it specifies a shorter term
or unless it states that it is coupled with an interest and is irrevocable.
C. Notwithstanding any provision in the condominium documents, after
termination of the period of declarant control, votes allocated to a unit
may not be cast pursuant to a proxy. The association shall provide for
votes to be cast in person AT A MEETING and by absentee ballot, OR BY
ABSENTEE BALLOT ALONE FOR ANY MEETING HELD UTILIZING REMOTE MEETING
TECNOLOGY. ABSENTEE BALLOTS MAY BE TRANSMITTED AND RETURNED IN PAPER FORMAT
BY HAND OR BY U.S. MAIL OR ELECTRONICALLY BY FAX OR E-MAIL. and, in
addition, the association may provide for voting by some other form of
delivery, including the use of e-mail and fax delivery.
D. Notwithstanding section 10-3708 or the ANY provisions of the
condominium documents TO THE CONTRARY, any action taken at an annual, regular
or special meeting of the members OR AS OTHERWISE SPECIFIED shall comply
with all of the following: if absentee ballots or ballots provided by some
other form of delivery are used:
1. ALL VOTES CAST BY UNIT OWNERS FOR BOARD ELECTION, RECALL OR
BALLOT MEASURES MUST BE BY SECRET BALLOT EXCEPT AS SPECIFIED OTHERWISE IN
THIS SECTION.
2. AT LEAST THIRTY DAY PRIOR TO THE ELECTION, THE ASSOCIATION MUST
NOTIFY ALL UNIT OWNERS THAT ITS RECORDS INDICATE ARE INELIGIBLE TO VOTE, OF
THAT INELIBILITY AND PROVIDE THOSE UNIT OWNERS AN OPPORTUNITY TO CURE ANY
ISSUE CAUSING THAT INELIGIBILITY.
31. The ballot shall set forth each proposed action.
42. The ballot shall provide an opportunity to vote for or against
each proposed action.
5. THE BALLOT TO ELECT BOARD POSITIONS, MUST IDENTIFY IF CUMULATIVE
VOTING IS TO BE USED AS AUTHORIZED BY THE CONDOMINIUM DOCUMENTS, AND THE
NUMBER OF BOARD POSITIONS TO BE FILLED, ALONG WITH A LISTING OF ALL ELIGIBLE
CANDIDATES FOR THOSE POSITIONS. TO BE INCLUDED ON THE BALLOT AN ELIGIBLE
CANDIDATE MUST HAVE RESPONDED WITHIN THE TIME SPECIFIED BY THE ASSOCIATION,
TO THE CALL FOR CANDIDATE NOMINATIONS THAT WAS CONSPICIOUSLY POSTED OR
OTHERWISE MADE AVAILABLE TO ALL UNIT OWNERS. IF CUMULATIVE VOTING IS USED
PRELIMINARY VOTING RESULTS MAY NOT BE REVEALED TO ANY UNIT OWNER WHO HAS
NOT YET VOTED.
63. The ballot is valid for only one specified election or meeting
of the members and expires automatically after the completion of the election
or meeting.
74. The ballot specifies the time and date by which the ballot must
be delivered to the board of directors in order to be counted, which shall
be at least seven days after the date that the board delivers the unvoted
ballot to the member.
85. The ballot does not authorize another person to cast votes on
behalf of the member.
96. The completed ballot shall BE ACOMPANIED BY A SEPERATE DOCUMENT
OR FORM THAT PROVIDES AN AFIDAVIT OF IDENTIFICATION THAT INCLUDES THE PRINTED
NAME, UNIT NUMBER AND EITHER THE ACTUAL OR ELECTRONIC SIGNATURE OF THE
PERSON VOTING. contain the name, the address and either the actual or
electronic signature of the person voting, except that if the condominium
documents permit secret ballots, only the envelope shall contain the name,
the address and either the actual or electronic signature of the voter.107. Ballots, VOTER IDENTIFICATION AFIDAVIT envelopes and related
materials, including sign-in sheets if used, shall be retained SEPERATELY
in electronic or paper format and made available for unit owner inspection
for at least one year after completion of the election.
ED. Votes cast by absentee ballot or other form of delivery,
including the use of e-mail and fax delivery, are valid for the purpose of
establishing a quorum.
F. FOR ANY BALLOT MEASURE AUTHORIZED BY THE CONDOMINUM DOCUMENTS OR
THIS CHAPTER, TO BE DECIDED BY A SPECIFIED PERCENTAGE OF ALL ELIGIBLE UNIT
OWNERS ONLY, THE ASSOCIATION OR THE UNIT OWNERS ARE FREE TO HOLD THAT VOTE
AT A MEETING OF THE UNIT OWNERS OR BY UTILIZING THE PROCESS OF NON-SECRET
WRITTEN CONSENT WITHOUT A MEETING PURSUANT TO TITLE 10 SECTION 3704 OR
SECRET WRITTEN BALLOT WITHOUT A MEETING PURSUANT TO TITLE 10 SECTION 3708
EXCEPT THE USE OF AN ON-LINE VOTING SYSTEM IS PROHIBITED, SUBJECT TO THE
PROVISIONS OF THIS SECTION,
G. IT IS THE DUTY OF THE BOARD OF DIRECTORS TO PROVIDE FOR AND HOLD
FAIR AND ACCURATE ANNUAL ELECTIONS AND VOTES OF THE UNIT OWNERS. TO THIS
END, IRRESPECTIVE OF THE PROCESS USED TO GATHER VOTES, IT IS THE
RESPONSIBILITY OF THE BOARD TO IMPLEMENT WHATEVER MEASURES IT DEEMS
NECESSARY TO ENSURE THAT ALL UNIT OWNERS ELIGIBLE TO VOTE GET THE OPPORTUNITY
TO VOTE, THAT ALL AND ONLY VOTES CAST BY AUTHORIZED UNIT OWNERS ARE RETAINED
AND ACCURATELY COUNTED, THAT THE HANDLING OF ANY SECRET BALLOT PREVENTS ANY
ASSOCIATION UNIT OWNER INCLUDING BOARD MEMBERS FROM KNOWING HOW ANY UNIT
OWNER VOTED AND THAT THE FINAL TALLY RESULT ARE RECORDED AS A RECORD OF THE
VOTE AND IS REPORTED TO ALL UNIT OWNERS.
HE. Notwithstanding subsection C of this section, an association for
a timeshare plan as defined in section 32-2197 may permit votes by a proxy
that is duly executed by a unit owner.
IF. If the declaration requires that votes on specified matters
affecting the condominium be cast by lessees rather than unit owners of
leased units all of the following apply:
1. The provisions of subsections A and B of this section apply to
lessees as if they were unit owners.
2. Unit owners who have leased their units to other persons shall
not cast votes on those specified matters.
3. Lessees are entitled to notice of meetings, access to records and
other rights respecting those matters as if they were unit owners. Unit
owners shall also be given notice, in the manner prescribed in section
33-1248, of all meetings at which lessees may be entitled to vote.
JG. Unless the declaration provides otherwise, votes allocated to a
unit owned by the association shall not be cast.
KH. This section does not apply to timeshare plans or associations
that are subject to chapter 20 of this title.
LI. For the purposes of this section, “period of declarant control”
means the time during which the declarant or persons designated by the
declarant may elect or appoint the members of the board of directors pursuant
to the condominium documents OR THIS CHAPTER. or by virtue of superior
voting power.
33-1804. Open meetings; exceptions
A. Notwithstanding any provision in the declaration, bylaws or other
documents to the contrary, all FORMAL meetings of the members’ association
and the board of directors, and any DESIGN REVIEW, RULE MAKING, ENFORCEMENT
OR FINANCIAL ADVISORY regularly scheduled committee meetings HOWEVER
DENOMINATED, are open to all members of the association or any person
designated by a member in writing as the member’s representative and all
members or designated representatives so desiring shall be permitted toattend and speak at an appropriate time during the deliberations and
proceedings. The board OR COMMITTEE may place reasonable time restrictions
on those persons speaking during the meeting but shall permit a member or
member’s designated representative to speak once after the board OR
COMMITTEE has discussed a specific agenda item but before the board OR
COMMITTEE takes formal action on that item in addition to any other
opportunities to speak. The board OR COMMITTEE shall provide for a
reasonable number of persons to speak on each side of an issue. Persons
attending may audiotape or videotape those portions of the meetings of the
board of directors, COMMITTEES and meetings of the members that are
open. The board of directors OR COMMITTEES of the association shall not
require advance notice of the audiotaping or videotaping and may adopt
reasonable rules governing the audiotaping and videotaping of open portions
of the meetings of the board, COMMITTEE and the membership, but such rules
shall not preclude such audiotaping or videotaping by those attending,
unless the board OR COMMITTEE audiotapes or videotapes the meeting and makes
the unedited audiotapes or videotapes available to members on request
without restrictions on its use as evidence in any dispute resolution
process. Any portion of a meeting may be closed only if that closed portion
of the meeting is limited to DISCUSSION OR consideration WITHOUT ACTION OR
DECISION of one or more of the following:
1. Legal advice from an attorney for the board or the association.
On final resolution of any matter for which the board received legal advice
or that concerned pending or contemplated litigation, the board may disclose
information about that matter in an open meeting except for matters that
are required to remain confidential by the terms of a settlement agreement
or judgment.
2. Pending or contemplated litigation.
3. THE REVIEW OF ANY REPORT OR RECORDS OF THE ASSOCIATION CONTAINING
OR DIRECTLY RELATED TO Personal, health or financial information about an
individual member of the association, an individual employee of the
association or an individual employee of a contractor for the association.
ALLEGED VIOLATIONS OF COMMUNITY DOCUMENTS ARE NOT PERSONAL INFORMATION UNDER
THIS EXCEPTION. , including records of the association directly related to
the personal, health or financial information about an individual member of
the association, an individual employee of the association or an individual
employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of,
health records of or specific complaints against an individual employee of
the association or an individual employee of a contractor of the association
who works under the direction of the association.
5. Discussion of a member’s appeal of any violation cited or penalty
imposed by the association except on request of the affected member that
the meeting be held in open session. THE ASSOCIATION MUST INFORM THE MEMBER
OF THIS OPTION AND ALLOW THE MEMBER AN OPPORTUNITY TO CHOSE A HEARING IN
EITHER OPEN OR CLOSED SESSION.
B. Notwithstanding any provision in the community documents, all
FORMAL meetings of the members’ association and the board AND DESIGNATED
COMMITTES shall be held in this state. A meeting of the members’ association
shall be held at least once each year TO ELECT BOARD MEMBERS TO FILL NEW OR
EXPIRED TERMS, AND TO CONDUCT ANY OTHER BUSINESS OF THE MEMBERS. IF AN
ANNUAL OR SPECIAL MEETING OF THE MEMBERS IS CALLED BUT FAILS TO SATISFY
QUORUM, THAT MEETING MUST BE RE-CONVENED WITHIN FIFTEEN DAYS UNTIL THE
MEETING OR ELECTION IS HELD. FOR ANY ASSOCIATION WITH AN INITIAL QUORUM
REQUIREMENT SPECIFIED IN THE GOVERNING DOCUMENTS TO BE EQUAL TO OR GREATER
THAN TWENTY-FIVE PERCENT, THE QUORUM REQUIREMENT FOR ANY RE-CONVENED
MEETINGS WILL BE HALF OF THE PREVIOUS QUORUM REQUIREMENT BUT NOT LESS THANTWENTY PERCENT UNTIL THE QUORUM IS SATISFIED AND THE MEETING IS HELD. ANY
ABSENTEE BALLOTS SUBMITTED FOR THE ORIGINAL MEETING REMAIN VALID FOR THE
RE-CONVENED MEETING.
C. THE ASSOCIATION MAY UTILIZE REMOTE MEETING TECHNOLOGY FOR MEETINGS
OF THE MEMBERS AS LONG AS ALL MEMBERS WISHING TO PARTICIPATE ARE PROVIDED
ACCESS TO THE REMOTE MEETING AND ALLOWED TO SPEAK ON ANY ISSUE BEFORE THE
MEMBERS, INCLUDING ANY OPEN FORUM. THE REMOTE MEETING HOST MAY NOT MUTE ANY
SPEAKER WITHIN THE TIME CONSTAINTS ESTABLISHED FOR EACH SPEAKER BY THE
MEMBERS IN ADVANCE, AND WITHOUT PRIOR NOTICE TO THE SPEAKING MEMBER.
PARTICIPATION IN THE REMOTE MEETING ALONG WITH ANY ABSENTEE BALLOTS
SUBMITTED TOLLS TOWARD SATISFYING QUORUM.
D. Special meetings of the members’ association may be called by the
president, by a majority of the board of directors or by members having at
least twenty-five percent, or any lower percentage specified in the bylaws,
of the votes in the association. Not fewer than ten nor more than fifty
days in advance of any meeting of the members the secretary shall cause
notice to be hand-delivered or sent prepaid by United States mail to the
mailing address for each lot, parcel or unit owner or to any other mailing
address designated in writing by a member. THE ASSOCIATION MAY UTILIZE E-
MAIL NOTIFICATIONS FOR THOSE MEMBERS THAT HAVE PROVIDED VALIDATED E-MAIL
ADDRESSES. The notice shall state the date, time and place of the meeting. A
notice of any annual, regular or special meeting of the members SHALL PROVIDE
THE ABSENTEE BALLOT TO BE USED BY THE MEMBER AND shall also state the purpose
for which the meeting is called, including the general nature of any proposed
amendment to the declaration or bylaws, changes in assessments that require
approval of the members and any proposal to remove a director or an officer.
The failure of any member to receive actual notice of a meeting of the
members does not affect the validity of any action taken at that meeting.
EC. Before entering into any closed portion of a meeting of the board
of directors, or on notice of a meeting under subsection FD of this section
that will be closed, the board shall identify the paragraph under subsection
A of this section that authorizes the board to close the meeting.
FD. Notwithstanding any provision in the declaration, bylaws or other
community documents TO THE CONTRARY, for meetings of the board of directors
that are held after the termination of declarant control of the association,
notice to members of ALL FORMAL meetings of the board of directors OR
DESIGNATED COMMITTEE shall be given at least forty-eight hours in advance
of the meeting by newsletter, conspicuous posting or any other reasonable
means as determined by the board of directors. An affidavit of notice by
an officer of the corporation is prima facie evidence that notice was given
as prescribed by this section. Notice to members of meetings of the board
of directors is not required if emergency circumstances require action by
the board before notice can be given. Any notice of a board meeting shall
state the date, time and place of the meeting. The failure of any member
to receive actual notice of a meeting of the board of directors does not
affect the validity of any action taken at that meeting.
G. ALL FORMAL OPEN OR CLOSED MEETINGS OF THE BOARD OF DIRECTORS MUST
PROVIDE FOR THE NOTICE OF ALL DIRECTORS, AND MAY NOT EXCLUDE ANY DULY ELECTED
OR APPOINTED BOARD MEMBERS FROM PARTICIPATION IN THAT MEETING.
HE. Notwithstanding any provision in the declaration, bylaws or other
community documents, for FORMAL OPEN meetings of the board of directors OR
DESIGNATED COMMMITTEES, that are held after the termination of declarant
control of the association, all of the following apply:
1. The DRAFT agenda shall be POSTED OR OTHERWISE MADE available to
all members ALONG WITH THE NOTICE OF THE MEETING, AT LEAST FORTY-EIGHT HOURS
PRIOR TO THE MEETING AND MAY BE REVISE AS REQUIRED BY THE BOARD PRESIDENTOR COMMITTEE CHAIR TO ADD OR REMOVE AGENDA ITEMS BASED ON DEVELOPMENTS SINCE
THE DRAFT WAS ISSUED. attending.
2. An emergency meeting of the board of directors may be called to
discuss business or take action that cannot be delayed for the forty-eight
hours required for notice. At any emergency meeting called by the board of
directors, the board of directors may act only on emergency matters. The
minutes of the emergency meeting shall state the reason necessitating the
emergency meeting. The minutes of the emergency meeting shall be read and
approved at the next regularly scheduled meeting of the board of directors.
3. A quorum Opf the board of directors OR DESIGNATED COMMITTEE may
meet by means of VOICE, VIDEO OR REMOTE MEETING TECHNOLOGY a telephone
conference if a speakerphone is available in the meeting room that allows
board members and association members to hear all parties who are speaking
during the meeting. BOARD MEETINGS MAY BE HELD USING REMOTE MEETING
TECHNOLOGY, AS LONG AS ALL MEMBERS WISHING TO PARTICIPATE ARE PROVIDED
ACCESS TO THE MEETING AND ALLOWED TO SPEAK ON ANY ISSUE BEFORE THE BOARD OR
COMMITTEE, PURSUANT TO SUBSECTION A OF THIS SECTION. THE VIRTUAL MEETING
HOST MAY NOT MUTE ANY MEMBER SPEAKING, WITIN THE TIME CONSTRAINTS ESTABLISHED
BY THE BOARD OR COMMITTEE IN ADVANCE AND WITHOUT PRIOR NOTICE TO THE SPEAKING
MEMBER.
4. ANY MOTION BROUGHT FORWARD FOR ACTION OR DECISION RELATED TO
CLOSED SESSIONS DISCUSSIONS OR CONSIDERATIONS BY THE BOARD OF DIRECTORS
AUTHORIZED IN SUBSECTION A OF THIS SECTION, MAY BE DONE IN A MANNER SO AS
TO NOT DISCLOSE ANY PRIVALEGED OR CONFIDENTIAL INFORMATION. THE MEMBERS
PRESENT MUST BE PROVIDED AN OPPORTUNITY TO SPEAK TO THE ISSUE PURSUANT TO
SUBSECTION A OF THIS SECTION, BUT MAY NOT QUESTION THE BOARD FOR ANY DETAILS
ON THE ISSUE OTHER THAN THE PROJECTED FINANCIAL IMPACT TO THE PLANNED
COMMUNITY BASED ON THE PROPOSED ACTION.
54. Any quorum of the board of directors that meets informally to
discuss association business, including workshops, shall comply with the
open meeting and notice provisions of this section without regard to whether
the board votes or takes any action on any matter at that informal meeting.
BOARD MEMBERS MAY ASSEMBLE OR COMMUNICATE INFORMALLY, ATTEND CASUAL AND
SOCIAL ACTIVITIES, ATTEND WORKSHOPS, PROPOSE MEETING AGENDAS AND RECEIVE
BACKGROUND INFORMATION FOR THOSE AGENDA ITEMS, OR ATTEND INFORMAL MEETINGS
OF THE MEMBERS, AND DISCUSS ASSOCIATION BUSINESS OR ISSUES EVEN IF A QUORUM
OR MORE OF THE BOARD PARTICIPATES, WITHOUT BEING SUBJECT TO THE OPEN MEETING
OR NOTICE PROVISIONS OF THIS SECTION, PROVIDED THAT:
(a) THE MEMBERS OF THE BOARD OF DIRECTORS DO NOT ATTEMPT TO CIRCUMVENT
THE TRANSPARENT AND OPEN DISCUSSION OF ASSOCIATION BUSINESS IN FORMAL OPEN
MEETINGS PRIOR TO A VOTE ON THAT ISSUE, THRU ANY COMMUNICATION VERBAL OR
WRITTEN BETWEEN INDIVIDUAL OR MULTIPLE BOARD MEMBERS THAT ATTEMPTS TO
ESTABLISH CONSENSUS ON A PROPOSED COURSE OF ACTION, PRIOR TO AND OUTSIDE OF
A FORMAL BOARD MEETING.
(b) NO ACTION OR DECISION IS TAKEN BY THE BOARD OF DIRECTORS IN THESE
INFORMAL SETTINGS.
6. DRAFT MINUTES OF ALL FORMAL OPEN MEETINGS OF THE BOARD, DESIGNATED
COMMITTEES OR THE MEMBERS SHALL BE MADE AVAILABLE TO ANY MEMBER UPON REQUEST,
TEN BUSINESS DAYS AFTER THE MEETING. THE ASSOCIATION MAY CHOOSE TO POST THE
DRAFT MINUTES ON ASSOCIATION BULLETIN BOARDS OR WEBSITES IF AVAILABLE.
IF. It is the policy of this state as reflected in this section that
all FORMAL meetings of a planned community, whether meetings of the members’
association or meetings of the board of directors OR DESIGNATED COMMITTEES
of the association, be conducted openly and that notices and agendas be
provided for those meetings that contain the information that is reasonably
necessary to inform the members of the matters to be discussed or decided
and to ensure that members have the ability to speak after discussion ofagenda items, but before a vote of the board of directors, COMMITTEE, or
members is taken. Toward this end, any person or entity that is charged
with the interpretation of these provisions, including members of the board
of directors and any community manager, shall take into account this
declaration of policy and shall construe any provision of this section in
favor of open meetings. ANY ACTION TAKEN BY THE BOARD OF DIRECTORS OR
DESIGNATED COMMITTEE IN VIOLATION OF THE OPEN MEETING REQUIREMENTS AND
PUBLIC POLICY STATEMENT OF THIS SECTION IS INVALID AND VOID.
33-1812. Proxies; absentee ballots; definition
A. Notwithstanding any provision in the community documents, after
termination of the period of declarant control, votes allocated to a unit
may not be cast pursuant to a proxy. The association shall provide for
votes to be cast in person AT A MEETING and by absentee ballot, OR BY
ABSENTEE BALLOT ALONE FOR MEETINGS HELD USING REMOTE MEETING TECHNOLOGY.
THE ABSENTEE BALLOTS MAY BE TRANSMITTED AND RETURNED IN PAPER FORMAT BY HAND
OR U.S. MAIL, OR ELECTRONICALLY BY E-MAIL OR FAX. and, in addition, the
association may provide for voting by some other form of delivery, including
the use of e-mail and fax delivery. Notwithstanding section 10-3708 or the
ANY provisions of the community documents TO THE CONTRARY, any action taken
at an annual, regular or special meeting of the members OR AS OTHERWISE
SPECIFIED shall comply with all of the following: if absentee ballots or
ballots provided by some other form of delivery are used:
1. ALL VOTES CAST BY MEMBERS FOR BOARD ELECTION, RECALL OR BALLOT
MEASURES MUST BE BY SECRET BALLOT EXCEPT AS SPECIFIED OTHERWISE IN THIS
SECTION.
2. AT LEAST THIRTY DAY PRIOR TO THE ELECTION, THE ASSOCIATION MUST
NOTIFY ALL MEMBERS THAT ITS RECORDS INDICATE ARE INELIGIBLE TO VOTE, OF THAT
INELIBILITY AND PROVIDE THOSE MEMBERS AN OPPORTUNITY TO CURE ANY ISSUE
CAUSING THAT INELIGIBILITY.
13. The ballot shall set forth each proposed action.
24. The ballot shall provide an opportunity to vote for or against
each proposed action.
5. THE BALLOT TO ELECT BOARD POSITIONS, MUST IDENTIFY IF CUMULATIVE
VOTING IS TO BE USED IF AUTHORIZED BY THE COMMUNITY DOCUMENTS, AND THE
NUMBER OF BOARD POSITIONS TO BE FILLED, ALONG WITH A LISTING OF ALL ELIGIBLE
CANDIDATES FOR THOSE POSITIONS. TO BE INCLUDED ON THE BALLOT AN ELIGIBLE
CANDIDATE MUST HAVE RESPONDED WITHIN THE TIME SPECIFIED BY THE ASSOCIATION,
TO THE CALL FOR CANDIDATE NOMINATIONS THAT WAS CONSPICIOUSLY POSTED OR
OTHERWISE MADE AVAILABLE TO ALL MEMBERS. IF CUMULATIVE VOTING IS USED
PRELIMINARY VOTING RESULTS MAY NOT BE REVEALED TO ANY MEMBER WHO HAS NOT
YET VOTED.
63. The ballot is valid for only one specified election or meeting
of the members and expires automatically after the completion of the election
or meeting.
74. The ballot specifies the time and date by which the ballot must
be delivered to the board of directors in order to be counted, which shall
be at least seven days after the date that the board delivers the unvoted
ballot to the member.
85. The ballot does not authorize another person to cast votes on
behalf of the member.
96. The completed ballot shall BE ACOMPANIED BY A SEPERATE DOCUMENT
OR FORM THAT PROVIDES AN AFIDAVIT OF IDENTIFICATION THAT INCLUDES THE PRINTED
NAME, ADDRESS OR LOT NUMBER AND EITHER WRITTEN OR ELECTRONIC SIGNATURE OF
THE PERSON VOTING. contain the name, address and signature of the person
2023 Common Interest Community Termination
33-1228. Termination of condominium
A. Except as provided in subsection B of this section, Aa condominium DECLARATION
may be terminated only by THE agreement AND WRITTEN CONSENT of unit owners AS
SPECIFIED IN THE DECLARATION, IF NONE IS SPECIFIED, BYof units to which at least eighty
percent of the UNIT OWNERS, votes in the association are allocated, or any larger percentage
the declaration specifies, except:
1. In the case of a taking of all the units by eminent domain.
2. If the declaration specifies a smaller percentage, but only if all units in the
condominium are restricted exclusively to nonresidential uses.
B. A condominium DECLARATION created AND RECORDED on or after September 24,
2022 may be terminate only by the agreement of unit owners to which ninety-five
percent of the votes in the association are allocated, or any larger percentage the
declaration specifies, except as provided in subsection A. Paragraph 1 or 2 of this
section.
BC. ANY AGREEMENT TO TERMINATE THE CONDOMINUM DECLARATION MUST
CONTAIN THE REQUISITE NUMBER OF UNIT OWNER’S SIGNATURES, PRINTED NAMES AND
UNIT NUMBERS, SPECIFIED IN SUBSECTION A. THE TERMINATION AGREEMENT SHALL BE
SIGNED AND NOTORIZED BY THE PERSON OR ENTITY PRESENTING THE AGREEMENT TO
BE A TRUE COLLECTION OF SIGNATURES OF OWNERS WHO HAVE READ THE
TERMINATION AGREEMENT AND AGREED TO ITS CONTENT FREELY. THE TERMINATION
AGREEMENT MUST DESCRIBE THE PROPOSED ORGANIZATIONAL STRUCTURE FOR
MAKING DECISIONS AND MANAGING THE COMMON PROPERTY INCLUDING THE
CONTINUED OBLIGATION OF ANY UNIT OWNER TO PAY ASSESSMENTS SUBJECT TO
STATUTORY LIEN, TO MAINTAIN THE COMMON PROPERTY FOLLOWING TERMINATION OF
THE CURRENT DECLARATION. THE TERMINATION AGREEMENT ALONG WITH THE EXISTING
PLAT MUST SATISFY THE RELEVANT REQUIREMENTS OF SECTION 1215 OF THIS CHAPTER.
C. THE BOARD OF DIRECTORS UPON NOTIFICATION THAT AN INDIVIDUAL OR
ENTITY HAS OBTAINED THE NECESSARY APPROVALS TO TERMINATE THE DECLARATION,
AND RECEIVING A COPY OF THAT AGREEMENT, SHALL CALL AND NOTICE A SPECIAL OPEN
MEETING OF THE BOARD, PURSUANT TO SECTION 1248 OF THIS CHAPTER, TO BE HELD AT
LEAST FIFTEEN DAYS BUT NOT MORE THAN THIRTY CALENDAR DAYS AFTER THE
NOTIFICATION. AT THE MEETING CALLED FOR THAT PURPOSE, THE INDIVIDUAL OR ENTITY
MUST PROVIDE THE ORIGINAL SIGNED AND NOTORIZED TERMINATION AGREEMENT TO
THE BOARD OF DIRECTORS. ANY UNIT OWNER PRESENT AT THE MEETING MUST BE
PROVIDED THE OPPORTUNITY TO SPEAK PRIOR TO A VOTE OF THE BOARD TO RATIFY THE
TERMINATION AGREMENT. THE BOARD OF DIRECTORS SHALL VALIDATE THAT THE
TERMINATION AGREEMENT CONTAINS THE APPROVAL OF THE REQUISITE NUMBER OF
UNIT OWNERS AND IF NO LEGITIMATE REASON HAS BEEN PRESENTED TO DELAY THE
RATIFICATION, MUST RATIFY THE AGREEMENT. ONCE RATIFIED THE ASSOCIATION MUST
TAKE THE ACTIONS NECESSARY TO PREPARE FOR AND RECORD THE TERMINATION
AGREEMENT WITHIN FIFTY DAYS. At least thirty days before recording a termination
agreement, the board of directors of the association shall convene a regular or special meeting
of the board of directors at which a person or entity that purports to have the agreement of at
least the percentage of the votes in the association specified in subsection A or B of this
section, as applicable, or any larger percentage if required, shall produce and make available
to the unit owners copies of a signed notarized statement that the owner of a unit has executed
a termination agreement. The person or entity shall produce copies of a statement for each unit
owner who has agreed to the termination, or may produce the signed termination agreement
that includes a sufficient number of unit owners. Any meeting called pursuant to this
subsection shall be noticed as otherwise provided by law., except that the board may not take
action by written consent or any other method that does not provide for an actual meeting that
is open to all the unit owners. Any termination agreement that is recorded without full
compliance with this subsection is invalid.
D. An agreement to terminate shall be evidenced by the execution or ratifications of a
termination agreement, in the same manner as a deed., by the requisite number of unit
owners. The termination agreement shall specify a date after which the agreement will be voidunless it is recorded before that date. A termination agreement and all ratifications of a
termination agreement shall be recorded in each county in which a portion of the condominium
is situated and is effective only on recordation, AND SUBSEQUENTLY PROVIDING EVERY UNIT
OWNER A COPY OF THE RECORDED DOCUMENT.
E. A termination agreement may provide that all the common elements and units of the
condominium shall be sold following termination. If, pursuant to the agreement, any real estate
in the condominium is to be sold following termination, the termination agreement shall set
forth the minimum terms of the sale.
F. The association, on behalf of the unit owners, may contract for the sale of real estate
in the condominium, but the contract is not binding on the unit owners until approved pursuant
to subsections A, B, C and D of this section. If any real estate in the condominium is to be sold
following termination, title to that real estate on termination vests in the association as trustee
for the holders of all interest in the units. Thereafter, the association has all powers necessary
and appropriate to effect the sale. Until the sale has been concluded and the proceeds of the
sale distributed, the association continues in existence with all powers it had before
termination. Proceeds of the sale shall be distributed to unit owners and lienholders as their
interests may appear, in proportion to the respective interests of unit owners as provided in
subsection I of this section. Unless otherwise specified in the termination agreement, as long
as the association holds title to the real estate, each unit owner and the unit owner’s
successors in interest have an exclusive right to occupancy of the portion of the real estate
that formerly constituted the unit owner’s unit. During the period of that occupancy, each unit
owner and the successors in interest remain liable for all assessments and other obligations
imposed on unit owners by this chapter or the declaration.
EG. If the real estate constituting the condominium is not to be sold Ffollowing
termination, title to all the real estate in the condominium REMAINS WITH vest in the unit
owners on termination as OWNERS tenants in common in proportion to their respective
interests as provided in THE DECLARATION IN EFFECT PRIOR TO THE TERMINATION.
subsection G of this section, and liens on the units shift accordingly. While the tenancy in
common exists, each unit owner and the unit owner’s successors in interest have an exclusive
right to occupancy of the portion of the real estate that formerly constituted the unit owner’s
unit. EACH UNIT OWNER MAY SELL THE REAL ESTATE OF THEIR INDIVIDUAL UNITS AND
OWNERSHIP IN COMMON AS INDIVIDUAL REAL ESTATE SUBJECT TO THE RECORDED
TERMINATION AGREEMENT.
F. FOLLOWING TERMINATION ALL FINANCIAL ASSETS AND LOANS OR CONTINUING
OBLIGATIONS IF ANY, OF THE PREVIOUS CONDOMINIUM ASSOCIATION TRANSFER TO THE
OWNERS IN COMMON AS ORGANIZED UNDER THE TERMINATION AGREEMENT.
G. RECORDING OF THE TERMINATION AGREEMENT EXTINQUISHES ALL OF THE
FOLLOWING:
1. THE DECLARATION AND ALL AMENDMENTS, EXCEPT THE PLAT DEFINING
THE REAL ESTATE.
2. THE PREVIOUS CONDOMINIUM ASSOCIATION HOWEVER ORGANIZED AND
ANY POWER OR AUTHORITY OF ITS BOARD OF DIRECTORS. IF THE
CONDOMINIUM ASSOCIATION WAS INCORPORATED THE BOARD OF
DIRECTORS ARE RESPONSIBLE TO TAKE ANY REQUIRED ACTIONS TO
TERMINATE THE CORPORATION PURSUENT TO TITLE 10, PRIOR TO
RECORDING THE TERMINATION AGREEMENT.
3. ALL OTHER CONDOMINIUM DOCUMENTS INCLUDING ARTICLES OF
INCORPORATION, BYLAWS, RULES, AND DESIGN CONTROL STANDARDS.
4. ALL EXISTING CONTRACTS ENTERED INTO BY THE PREVIOUS
CONDOMINIUM ASSOCIATION, WITHIN THE TERMINATION CLAUSES OF
THOSE CONTRACTS.
5. ALL OUTSTANDING FINES, PENALTIES OR FEES OTHER THAN COMMON
EXPENSE ASSESSMENTS, APPLIED TO INDIVIDUAL UNITS BY THE PREVIOUS
CONDOMINIUM ASSOCIATION.
6. ALL NON-COMMON EXPENSE ASSESSMENT LIENS ESTABLISHED BY THE
PREVIOUS CONDOMINIUM ASSOCIATION ON INDIVIDUAL UNITS