The importance of adhering to the homeowner association’s governing documents and state statutes regarding notification requirements cannot be stressed enough. Not following the proper procedures and legal requirements, at worst, can have severe legal consequences and at a minimum, cost the homeowner association additional expense in correcting the matter.
All homeowner association notices in a broad legal sense are used to communicate rights and responsibilities to an interested party. There are different forms of legal notices, with written notices being what is generally required by most associations. The definition of the term “written notice” can vary from state to state and even within different statutes of law within a state. And what can make written notice requirements more ambiguous are the association’s governing documents written by thousands of different attorneys in every state.
Official or required membership notifications are specified in your homeowner association’s governing documents or in the state statutes. For association operational issues such as membership meetings, this information is generally found in the association’s bylaws. Notification issues dealing with individual membership architectural violations, if specified, would generally be found in the declaration of covenants. If architectural violation notification requirements are not specific in the declarations, state statutes or legal precedent would be relied on for notification requirements.
Generally, the association bylaws are going to specifically outline membership notification requirements for annual meetings and special meetings. Language similar to below is typically what would be found in an association’s bylaws:
Section 5.1 – Notices of Meetings: Written or printed notice stating the time and place of a membership meeting, including Annual Meetings, and the items on the agenda, including the general nature of any proposed amendment to the Declaration or these Bylaws, any budget changes, and any proposal to remove a director or officer, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of any such membership meeting, either personally or by mail, by or at the discretion of the President or the Secretary, to the address of each Unit. Notice shall be deemed given upon deposit of a First Class postage paid envelope in a United States Postal Service mail depository.
Notice given to any one resident in common, resident by entirety or other joint Owner of a Unit shall be deemed notice to all joint Owners of the subject Unit.
The notice of meeting shall specifically state the purpose or purposes for which the meeting is called.
Effective Notice or Effective Delivery is the legal term used to define that another party has legally been notified. As specifically noted above in the sample bylaw language, Notice shall be deemed given upon deposit of a First Class postage paid envelope in a United States Postal Service mail depository. Even if the effective notice language in your association’s governing documents is not this specific, this is generally the accepted standard that is to be applied and is generally accepted in a court of law. The rare exception to this accepted standard is if your governing documents have another specific procedure for notification. Be forewarned in court, anything less than effective notice per First Class postage paid envelope mailed US Mail may not be sufficient, in a judge’s opinion, for effective notice.
An important point to note here is we are often asked why annual meeting notices, hearing letters, and other association membership communications must be delivered First Class US Mail. Especially considering all the communication technology such as email, texting, twitter, blogs, and association websites that essentially have no expense related to their use. Unfortunately, utilizing these avenues of communication generally does not meet the legal requirements of effective notice.
For example, effective notice is so imperative because if this accepted legal standard is not met, an annual meeting and the subsequent elections of the board of directors can be invalidated just the same as if there was not a quorum present at the meeting.
We are often asked about sending notices by certified mail; unless there is a specific requirement in the association’s governing documents for utilizing certified mail, we strongly recommend against this practice. What happens more often than not, is the party that the association is trying to notify does not pick-up the certified mail or the party outright refuses delivery and, as a result, we now have definite proof the association member did not receive notification and this non-delivery of notification is discoverable in court or in other words we are forced to tell the court we have proof the party was not notified. This proof of non-effective delivery can be especially damaging to collection cases where effective notice is required by law and has severe legal consequences for non-compliance.
We always recommend for all matters of notification to members that it be done First Class postage paid US Mail. This again is simply placing the notification in a postage paid First Class envelope in a US Mail box. This is generally the accepted standard of Effective Notice or Effective Delivery and is accepted in a court of law.
As an additional method of verification we always have the ability to complete an Affidavit of Mailing. An Affidavit of Mailing is simply a sworn and notarized statement completed by the person who placed the notification in the US Mail. We generally complete an affidavit of mailing for mass membership meeting mailings and an affidavit can be utilized on an individual member notification as well.
All governing documents are different and there may be exceptions for utilizing First Class mail for effective notice. These alternative notice delivery options such as posting a sign at the main entrance or physically posting every member’s front door with a meeting notice, even with these two possible options, concerns can arise with regard to effective notification of absentee owners or with associations with multiple entrances.
In conclusion, all boards of directors wants to properly communicate and notify members of important homeowner association matters. It takes less time and effort to do it properly and is less expensive in the long run. WDPM
Copyright – William Douglas Management, Inc. 2016