Condo Ballots

Many decisions in an HOA are made by the management committee, but certain decisions require a homeowner vote. If a vote is required, how should homeowners vote? Are paper ballots always required? What about virtual votes? While the Condominium Ownership Act governs many aspects of condo life, ballots and voting are governed by the Utah Revised Nonprofit Corporation Act and your HOA’s bylaws. By learning the rules, you can feel confident taking part in your community’s future.

The Rules of the Road: Statutory Guidelines

When it comes to condominium associations in Utah, the rules are like a two-lane highway. The primary lane is the Utah Condominium Ownership Act. This law sets the specific rules for condominiums. The second lane is the Utah Revised Nonprofit Corporation Act. Because most HOAs are set up as nonprofit corporations, this law fills in the gaps, especially when it comes to the nuts and bolts of voting and meetings.

Understanding how these two laws work together is the key to a smooth ride. If your HOA’s bylaws do not cover a specific voting detail, these two statutes step in to provide the directions.

Who Gets to Drive? Understanding Voting Rights

In a condo association, a vote is more than just raising your hand at a meeting. According to Section 16-6a-102(55) of the Utah Revised Nonprofit Corporation Act, a vote has a very broad definition:

"’Vote’ includes authorization by: (a) written ballot; and (b) written consent."

This means your HOA can use different ways to let you speak up. This legal flexibility is vital for a busy community and gives the board discretion when using tools like ballots. 

Before anyone can cast a ballot, we need to know who is allowed behind the wheel:

A Unit Owner is the person who owns the deed to the condo. The Condominium Ownership Act calls this fee simple ownership (Section 57-8-3(44)). In a condominium association, your voting power is usually tied to your unit. The Condominium Ownership Act requires the HOA to state the percentage of undivided interest each unit has in the common areas (Section 57-8-10(2)(d)(i)). This percentage often determines your voting weight (Section 57-8-24(2)(c)) and is usually listed in the CC&Rs.

A Voting Member, by contrast, is someone allowed to vote on matters given to the members of the HOA as a corporate entity under the Revised Nonprofit Corporation Act (Section 16-6a-102(57)). In most Utah condo associations, these two roles are the same, but not always. Always be sure to check your own governing documents for verification of voting rights.

If you own a unit, you are a member of the HOA. But what if you own a unit with someone else? The bylaws will often include a provision for how to handle a unit owned by more than one person, so start there. If the bylaws don’t provide any guidance, the Revised Nonprofit Corporation Act says that if a unit is owned by more than one person, and only one person votes, that vote counts for the whole unit (Section 16-6a-711(3)(a)). If more than one owner tries to vote, the vote is usually split based on their ownership share (Section 16-6a-711(3)(b)). This means it is important for co-owners to agree on how they want to vote before casting their ballot.

So How Do Ballots Work?

The bylaws are the governing document that controls how voting may be conducted within the community. Each HOA will have its own requirements and guidelines, so it is important to follow the bylaws closely when voting. Generally, however, voting in an HOA is done by written ballot or written consent. If a written ballot is used, here is what the Revised Nonprofit Corporation Act requires to be on the ballot, regardless of what else the bylaws may say:

• Each proposed action, along with the choice to vote for or against it (Section 16-6a-709(2));
• How many votes are needed for a quorum (Section 16-6a-709(4)(a));
• The percentage of votes needed to pass the measure (Section 16-6a-709(4)(b));
• The deadline for returning the ballot (Section 16-6a-709(4)(c)); and
• Additional written information that accompanies the ballot that allows each person to cast an informed vote (Section 16-6a-709(4)(d)).

One important rule to remember: once you submit a written ballot, you usually cannot take it back (Section 16-6a-709(5)). It is like dropping a letter in the mailbox; once it is in, it is done.

What About Electronic Ballots?

In the past, HOAs had to rely on paper mail to send out notices and ballots. Today, the law allows HOAs to use modern technology. The Revised Nonprofit Corporation Act defines "electronic transmission" broadly, meaning HOAs can often use email, text messages, or even a website to communicate with members (Section 16-6a-102(23)).

Under the Revised Nonprofit Corporation Act, any action that can be taken at a meeting can also be taken without a meeting if the HOA delivers a written ballot to every member entitled to vote (Section 16-6a-709(1)), but the law will defer to your bylaws if they have any differing requirements, so always be sure to start there.

Said another way, your bylaws may allow for the use of email, electronic or other forms of virtual or digital voting, each of which is allowed by state law, if the bylaws authorize their use. Are we sounding like a broken record yet? When in doubt, check your bylaws!

The Co-Pilot: Voting by Proxy

What if a unit owner cannot attend a meeting, but still wants their vote to count? The unit owner can hand the keys to a co-pilot by using a proxy. A proxy is simply a written authorization that allows someone else to vote on another’s behalf (Section 16-6a-712(1) of the Revised Nonprofit Corporation Act).

A unit owner can appoint a proxy by signing a form or even by sending an electronic transmission, like an email, as long as it is clear that the message came from that owner (Section 16-6a-712(2)). A proxy is generally valid for 11 months unless the form says otherwise (Section 16-6a-712(3)(b)).

Unlike a written ballot, the unit owner can revoke a proxy (Section 16-6a-712(5)). If the unit owner changes their mind, they can show up to the meeting and vote in person, or send a written notice to the HOA saying they are taking their proxy back (Section 16-6a-712(6)). 

The Final Destination: A Smooth Running HOA

Understanding the rules for ballots and voting is essential for a healthy condominium association. For management committee members, following these rules ensures that decisions are legally sound and transparent. For homeowners, knowing your rights empowers you to participate in the community you call home.

By treating the state laws as your roadmap and your bylaws as your vehicle, you can navigate the complexities of HOA voting with confidence. The next time a ballot arrives in your mailbox—or your inbox—you will be ready to take the wheel.