HOAs dealing with electronic voting, email requests, and the like (Oregon Law)

July 20, 2010 | By: Mike J. Vial

Boards and managers frequently ask me whether [and to what extent] they can use email other electronic methods to communicate with owners. My typical response to any question involving process or procedure is, “look at your governing documents first.” However, the bylaws in place for many of the communities I represent have notice requirements that are more appropriate for the 1950’s than today. Fortunately, the Oregon Legislature has provided Associations with some relief on this issue.

In a 2007 statutory update, the Planned Community Act (ORS Chapter 94) and Condominium Act (ORS Chapter 100) were amended to allow associations to use electronic methods such as email or websites in order to provide certain notices to owners and conduct elections. However, the statutes do contain a number of conditions and limitations that boards and managers must be aware of before plowing ahead. The language of both statutes relating to electronic notice and voting is nearly identical, so you can assume that the rules are the same for condominium associations and homeowners associations unless otherwise noted.

Notices. As a general matter, any notice that an association is required to provided to an owner or director may be sent by email or fax. The law authorizes associations to use electronic methods such as email or fax despite requirements in the documents or other parts of the statute that notices be mailed or posted. For this reason, there is no need to amend an association’s governing documents in order to use electronic methods, unless the declaration or bylaws explicitly forbid notice by email or fax.

There are three main exceptions to this rule for all communities. Email or fax may not be used to notify an owner or director of: (a) Failure to pay an assessment; (b) Foreclosure of an association lien; (c) An action the association may take against an owner (such as a hearing notice). In addition, condominium associations may not use email or fax to provide notice of an offer to use a dispute resolution program.

Any owner may decline to receive notices by electronic means. Associations are required to mail or post notices for any owner who has declined to receive electronic notices. Likewise, associations must mail or post notices for any owner who has not provided a valid email address or fax number.

If you’d like to review the statutes governing electronic notice, you should review ORS 94.625 for planned communities and ORS 100.423 for condominiums.

Electronic Voting. ORS 94.661 and ORS 100.428 authorize planned community homeowners associations and condominium associations to provide and receive ballots through electronic means unless the association’s governing documents specifically prohibit it. However, there are a number of exceptions, conditions, and limitations. Again, the laws governing electronic voting in planned community homeowners associations and condominium owners associations are virtually identical.

Methods. Associations may send and receive ballots by email, fax, website, or any “other means of electronic communication acceptable to the board of directors.” Any ballots sent by electronic means must still comply with the statutory requirements for form and content set forth in the statute or the governing documents.

Notice. All notice requirements under the statute or governing documents still apply in the case of electronic voting. For example, the notice of written ballot requirements of ORS 94.647 (2)(b) for a vote to amended governing documents still applies when the vote is to be conducted via electronic means. However, the notice and the ballot may be distributed electronically.

Website Voting. If an electronic ballot is posted on a website, a notice of the posting with instructions on obtaining access to the website must be sent to each owner. Such notices may be sent by email or fax.

Secrecy. The statutory and governing document requirements for voting by secret written ballot also apply to electronic voting. If, after receiving notice of a vote by written ballot, at least 10% of owners request that the vote be conducted by secrecy ballot, then the association may not use electronic voting unless it has established procedures for voting by secret electronic ballot.