Conducting Electronic Board Meetings

Manning & Meyers

The Global Pandemic has caused us to take a number of precautions for our health and safety. These precautions commonly include prohibitions on meetings and gatherings. This can understandably make it difficult for Texas Homeowners Associations and Condominiums to continue operations for the benefit of their members.

Thankfully, Texas Law includes a number of provisions allowing for Homeowners Association and Condominiums to continue operations without physically meeting. This memo discusses and outlines how Directors of Texas Homeowners Associations and Condominiums may take action
without the necessity for physically meeting in person.

If you have any questions or need assistance with conducting electronic meetings, please do not hesitate to contact our office or give us a call.

Residential Subdivisions & Townhome Communities

Voting by Telephone or Email Without Notice to Members

Prior to holding a formal board meeting, the Association Board of Directors should first see if they may act by unanimous written consent. Not all actions of the Board require noticing and holding a board meeting.

Per Section 209.0051 of the Texas Property Code, the Board of Directors may take action without notice to the members to consider three types of issues:

1) Routine and administrative matters;
2) Unforeseen emergencies; or
3) Urgent necessities.

If the matter falls under one of the above three categories, then the board may vote by electronic means or by telephone. This is most commonly accomplished via email, teleconference, or conference call.

If the board is to vote electronically, all board members must be given a reasonable opportunity to express their opinion to all other board members and to vote. Per the requirements of Section 6.201(b) of the Texas Business Organizations Code we recommend that any such action taken be unanimous amongst the board. Should the result not be unanimous, we recommend that matter be voted upon at the next regularly scheduled board meeting.

Should any action be taken without notice to the members of the community, it must be documented in the minutes of the next regular or special board meeting.

Certain Board Actions Require Notice to Members

Should the matter not be a routine and administrative matter, unforeseen emergency, or urgent necessity, or the matter not be unanimous, then the Directors of the Association must first notice the members of the Association prior to conducting the board meeting and holding a vote. Section 209.0051 of the Texas Property Code also includes a list of items which Directors of the Association may not vote upon without prior notice to the members of the Association. That means that the issues below cannot be considered routine and administrative, an unforeseen
emergency, or an urgent necessity. Should the matter the board wishes to vote upon fall on this list below, then it will need to be addressed at the next member noticed board meeting.

Please note that simply because an issue is on the list below, does not mean that it must be addressed during the general session. These matters frequently may be addressed via executive session.

1) Fines;
2) Damage assessments;
3) Initiation of enforcement actions, excluding a TRO or violations involving a threat to health or safety;
4) Increase in Assessments;
5) Levying of Special Assessments
6) Appeal from Denial of ACC;
7) Suspension of a right of an owner before the owner has an opportunity to attend a board meeting to present the owner’s position;
8) Lending or borrowing money;
9) Adoption of an amendment to Dedicatory Instrument;
10) Approval or an annual budget or amendment to annual budget;
11) Initiation of foreclosure actions;
12) Sale or purchase of real property;
13) Filling of a vacancy on the board;
14) Construction of capital improvements other than repair/replacement/enhancement of existing improvements;
15) Election of an officer.

Voting by Telephone or Other Electronic Means

If the Board of Directors may not take action by unanimous written consent, they may still meet electronically. Section 209.0051 of the Texas Property Code allows for the Board of Directors of a Residential Subdivision or Townhome community to meet by telephone or other electronic means.

Texas Law places a few requirements upon these types of meetings. They may be held so long as the following requirements are met:

1) Each board member may hear and be heard by other board members;
2) All owners in attendance may hear all board members;
3) Owners may listen by using the same electronic method that is used by board members to participate in the meeting;
4) The Meeting Notice includes instructions for owners to access any communication method required to participate in the meeting.

Sections 6.002 and 22.002 of the Texas Business Organizations Code includes a few additional requirements that the Board must meet prior to meeting electronically. Those requirements are:

1) Each board member must consent to the meeting being held electronically;
2) The system allows each person participating to communicate concurrently with each other participant;
3) The Board must implement reasonable measures to verify that every person voting at the meeting is sufficient identified; and
4) A record is kept of all votes and actions taken.

The requirement for “concurrent communication” among board members is most easily met by scheduling board meetings via conference call or teleconference (e.g. Zoom).

If the board can meet the above requirements, the next step is to consider whether notice of the meeting must be given to members of the Association or if the board may meet without notice.

These Matters May be Taken into Executive Session

Should a board hold an electronic or in person meeting, they may adjourn and reconvene in executive session to consider actions involving the following issues:

1) Personnel
2) Pending or threatened litigation;
3) Contract negotiations;
4) Enforcement actions;
5) Confidential communications with the Association’s attorney;
6) Matters involving the invasion of privacy of individual owners;
7) Matters that are to remain confidential by request of the affected parties and agreement of board.

When reconvening from the executive session, the issues must be summarized orally and placed in the meeting minutes. This must be done without breaching the privacy of the parties involved if a private matter.

Notifying Members of Electronic Meetings

Should the board be required to notice the members of a meeting, then Section 209.0051 of the Texas Property Code gives us the method that the Association must follow. Members must be notified of regular or special board meetings in the following manner:

1) Contents of Notice– Any notice provided must state the Date, Hour, Place, General subject of meeting, and General subject of any matter to be discussed in executive session
2) Email Notice: The Association must send notice to the members by email if the owner’s email address is on file. It is the owner’s duty to keep updated email on file. If you do not have the owner’s email address, you do not have to give them notice via mail.
3) Option of Notifying by Mail or Posting– You may choose to notify the members of the Board meeting in one of three ways: mail, physically posting, or electronically posting.

Any of these three methods meet the requirements for notice under the Texas Property Code.

a. Mail– Mail notice to the members by United States Postal Service between 10 and 60 days prior to the meeting;
b. Physically Posting– Physically post on common property or on private property reasonably designed to provide notice. This is most commonly done by putting up a sign. This must be done at least 72 hours prior to the meeting.
c. Electronically Posting– Electronically post “on any internet website maintained by the Association or other Internet Media.” This is most commonly accomplished by putting notice on the Association’s website. This must be done at least 72 hours prior to the meeting.

 

Condominium Associations

 

Acting by Unanimous Written Consent

Prior to holding a formal board meeting, the Association Board of Directors should first see if they may act by unanimous written consent. Not all actions of the Board require noticing and holding a board meeting.

Per Section 82.108 of the Texas Property Code, the Board of Directors of a Condominium Association may act by written consent if three conditions are met:

1) The board is unanimous in their decision;
2) Record of the meeting is filed with the minutes of the board meetings; and
3) The board action does not involve one of the following:

a. Fines;
b. Damage Assessment;
c. Appeal from Denial of Architectural Control Approval; or
d. Suspension of a right of a member before the member has had an opportunity to attend a board meeting to present the member’s position.

Please note that the above actions are required to be unanimous. If the Board is not unanimous in its decision, the matter should be considered at the next meeting of the directors.

If the Board of Directors of the Association meets all of the above conditions, they should endeavor to act by unanimous written consent.

Voting by Telephone or Other Electronic Means (e.g. Email, Video Conference, etc.)

If the Board of Directors of a Condominium Association cannot act by unanimous written consent, then they may hold a meeting via telephone or other Electronic Means.

Per Section 82.108 of the Texas Property Code, the Board of Directors may meet by telephone or other electronic means, so long as the following conditions are met:

1) The Declaration, Bylaws, or Articles of Incorporation of the Association do not allow for electronic or telephonic meetings;
2) Notice of the meeting must be given to the directors in accordance with the Bylaws of the Association. If the Bylaws are silent, notice must be given to the board members in accordance with the Texas Nonprofit Corporation Act. This notice should include instructions about how to access the electronic meeting.
3) Each director must be able to both hear and be heard by every other director;
4) The Board of Directors may not vote on the following at a telephone or electronic meeting before the member has an opportunity to attend a board meeting to present the members position, including any defense:

a. Fines;
b. Damage Assessment;
c. Appeal from Denial of Architectural Control Approval; or
d. Suspension of a right of a member before the member has had an opportunity to attend a board meeting to present the member’s position.

Sections 6.002 and 22.002 of the Texas Business Organizations Code includes a few additional requirements that the Board must meet prior to meeting electronically. Those requirements are:

1) Each board member must consent to the meeting being held electronically;
2) The system allows each person participating to communicate concurrently with each other participant;
3) The Board must implement reasonable measures to verify that every person voting at the meeting is sufficient identified; and
4) A record is kept of all votes and actions taken.

The requirement for “concurrent communication” among board members is most easily met by scheduling board meetings via conference call or teleconference (e.g. Zoom).

If the board can meet the above requirements, the next step is to consider whether notice of the meeting must be given to members of the Association or if the board may meet without notice to the members.

Per Section 82.108 of the Texas Property Code, Condominium Association Board meetings must be open to unit owners, subject to the right of the board to adjourn and reconvene in executive session.

Notifying Members of Electronic Meetings

There is no independent statutory requirement under Texas law to notify all members of the Association of a meeting of the Board of Directors.

The Association is only required to provide notice to the members of the Association of a Board Meeting under a few separate circumstances:

1) The Declaration, Bylaws, or Articles of Incorporation of the Association require for notice to be provided to the members; or
2) A member has made a written request to the board for notification of board meetings.

Should the board be required to notify the members of a meeting, then the Association should notice the Members in accordance with the requirements of their dedicatory instruments or applicable Texas Law. Generally, any notice provided must state the Date, Hour, Place, General subject of the meeting, and General subject of any matter to be discussed in the executive session.

Should the meeting be held electronically, and the board be required to notify one or more members of the Association of the meeting, then the meeting notice should include instructions on how the member may electronically access the meeting.

Executive Session

Should a board hold an electronic or in person meeting, they may adjourn and reconvene in executive session to consider actions involving the following issues:

1) Personnel
2) Pending or threatened litigation;
3) Contract negotiations;
4) Enforcement actions;
5) Confidential communications with the Association’s attorney;
6) Matters involving the invasion of privacy of individual owners;
7) Matters that are to remain confidential by request of the affected parties and
agreement of board.

When reconvening from the executive session, the issues must be summarized orally and placed in the meeting minutes. This must be done without breaching the privacy of the parties involved if a private matter.