-           If a motion was made to approve a contract or agreement that has already been prepared, the minutes could have read, “It was resolved that the Association accept the loan commitment from ABC Bank, a copy of which is attached to these minutes.@

• If the motion has been written out in advance, no matter how short it is, a copy of it should be given to the secretary, who can then copy it into the minutes.

• If the motion is made orally, the person chairing the meeting, or the secretary, should stop the discussion until the secretary has copied the motion into the minutes and read back to the assembly.  Only after the person who made the motion agrees that the motion has been taken down correctly, should the chair ask for a second and allow discussion to continue.  If, as sometimes happens, the motion does not get copied down when it is first made, the secretary should stop the meeting and verify the exact language of a motion before a vote is taken.

                                                                     Example 2

The Minutes:

“The proposed amendment to the declaration, a copy of which is attached to these minutes, was adopted by a two-thirds vote.”

The Problem:

Two-thirds of what?  Two-thirds of the unit owners present at the meeting, two-thirds of all of the unit owners in number, or two-thirds of the voting power of the units in an association in which the units have differing percentage votes?  In most associations, recorded documents can be amended only by a specified percentage or fraction of all of the voting power in the association, not just of the unit owners who show up.  If the minutes aren’t clear, there is no way of telling whether the association properly approved the proposed amendment.

The Solution:

• Before taking a vote, first check the declaration and bylaws to determine the level of approval that is required.  If possible, announce it before the vote.

• Record the vote in the minutes in sufficient detail to make it clear whether or not the resolution carried.  In this example, the minutes could have read, “Unit owners holding 69.23% of the votes in the association voted in favor of the amendment and unit owners holding 12.79% of the votes in the association voted against the amendment.  Under Section 9.1 of the declaration, the declaration can be amended by the vote of at least 67% of the votes in the association.  Therefore the amendment was adopted.”

                                                                      Example 3

The Minutes:

“It was resolved that the Association accept the proposal from A to Z Landscaping, Inc., a copy of which is attached to these minutes, for landscaping services for the coming year.”

The Problem:

Mary Z., one of the directors, is the sister of Joe Z., one of the two shareholders in A to Z. Under the provisions relating to directors’ conflicting interest transactions in the Connecticut Revised Nonstock Corporation Act, Mary should have disclosed the conflict and withdrawn from the discussion and the vote on the landscaping contract.  Mary may, in fact, have done so, but it is not reflected in the minutes.  If a unit owner sued to set aside the contract because of the conflict, there might be no way of proving that Mary, and the rest of the board, followed the proper statutory procedures.

The Solution:

• The minutes should specifically reflect occasions when a director announces that he or she has a conflicting interest and withdraws from the deliberations.  The minutes should have read, “At the beginning of the discussion, Mary Z. announced that her brother, Joe Z., was one of the two shareholders in A to Z Landscaping, Inc.  She did not participate in the discussion or the vote on the landscaping contract.”

• As a general rule, the minutes of board meetings should record how each director voted.  The unit owners are entitled to know the positions taken by the directors they elected.  In some situations, a particular director may need to prove how he or she voted on a particular issue.  Even if the vote was unanimous, it is sometimes hard to tell who actually participated in the vote.  The minutes may reflect, as they should, which directors were present at the start of the meeting.  However, it is always possible that someone came late, or left early, or left the room for a few minutes, so that the directors who voted “unanimously” may not have been the same directors listed at the beginning of the minutes.

                                                                      Example 4

The Minutes:

“It was moved and seconded that the Association accept the recommendation of the Recreation Committee and purchase new lounge chairs for the pool deck.  After discussion, the motion was adopted with Mr. Martin, Mr. Barton, and Ms. Fish voting in favor, Ms. Dewey and Mr. Cheatham voting against, and Ms. Howe not voting.”

The Problem:

Based on this resolution, Ms. Dewey, the president of the association, instructed the manager to purchase ten PVC lounge chairs from a local discount store at a cost of $29.95 per chair.  Mr. Barton, who chaired the recreation committee, had talked about purchasing twenty chairs when he gave his verbal committee report.  The chairs he had in mind, but did not specifically mention, were made of teak, and cost $299.50 each.  When Mr. Martin saw the chairs that the manager purchased, he told the pool attendant to pack them back up and, although the pool season has almost ended, the issue has still not been resolved.

The Solution:

• There are several ways of avoiding this type of problem:

-           Put the specifics into the resolution and the minutes.  For example, “It was moved and seconded that the association purchase ten ‘Summer Fun Model 2128C’ lounge chairs for the pool deck.”

                        -           Give someone the authority to make the final decision.  For example, “It was moved and seconded that the president be authorized to determine the number and type of lounge chairs needed for the pool deck and that the manager purchase the chairs in time for the start of the pool season.”

                        -           Set some parameters for the decision at the same time the decision is delegated.  For example, “It was moved and seconded that the association spend not more than $1,000 to purchase at least ten lounge chairs for the pool deck and that the manager be authorized to select the particular chairs and make the purchase in time for the start of the pool season.”

                                                                      Example 5

The Motion:

“Mary motioned that we hire a lawyer to look into suing the developer over the water problems in Buildings 6 and 7.  Everybody thought that it was a good idea.”

The Problem:

The first problem is whether anything was resolved at all.  It is not clear whether all of the people present at the meeting expressed the belief that it was a good idea to hire a lawyer but never took a vote, or whether the directors present actually voted to hire a lawyer.

The second problem is that the resolution and the minutes aren’t clear as to what the lawyer is being hired to do.  Is the lawyer being hired to review the available information and make a recommendation for the board to consider at a future meeting, or is he or she being hired conduct the review and, if the review indicates that a suit would be in the best interests of the association and the unit owners, to begin the suit without anybody’s approval or with only the approval of the president or the litigation committee.

The Solution:

• The minutes should be clear about whether or not a vote was taken.  If the directors did vote, record what the vote was.  If the directors never got around to taking a vote, the minutes should reflect that no vote was taken.  (Under Robert=s Rules of Order (10th Edition), the meeting could not have gone on to another topic unless a vote was taken on the resolution or something else was done with it, such as referring it to a committee.  However, most associations don=t always follow Robert=s Rules, and if the matter was just dropped without a vote, the minutes should, at least, reflect what was done.)

• This is another situation, like the one described in Example 4, where some combination of establishing parameters and delegating the authority to make a decision may be in order.  For example, “It was moved and seconded that the Association hire a lawyer to evaluate the engineering report and other information in the association’s possession concerning the water problems in Buildings 6 and 7 and make a recommendation to the board concerning whether it is in the association’s interest to sue the declarant.  The president is authorized to interview and hire a lawyer and to authorize not more than $5,000 in legal services to prepare the recommendation.”

                                                                      Example 6

The Minutes:

“The board voted unanimously to adopt a rule prohibiting children from the condominium.”

The Problem:

We did not make this up.  We have actually seen associations attempt to take actions such as this.  They raise a whole list of problems.  Here are a few of the problems in ascending order of seriousness:

• The rule isn’t clear about what is being prohibited.  Are children prohibited from living in the condominium, from staying overnight, or from setting foot in the condominium at all?  For that matter, what is meant by “children?”  Everyone, regardless of age, is somebody=s child.  If the rule was intended to indicate age, is it under 21, under 18, or something else?

• The documents of many associations, including almost all associations created since 1984, require the board to give notice to all unit owners, and an opportunity for the unit owners to comment, before the board adopts changes to the rules.  Here the minutes do not indicate whether the board gave the required notice or received any comments.

• With certain very limited exceptions, associations cannot regulate who may occupy a unit by rule.  This kind of regulation requires an amendment to a recorded document, usually the declaration.  Such an amendment almost always requires a vote of the unit owners.

• If you read the last issue of our newsletter, you may remember that the Federal Fair Housing Amendments Act contains protections for families with children under the age of 18.  Even if the association followed proper procedure in adopting the prohibition, it is likely that it has violated the Fair Housing Act, and may be exposed to enforcement proceedings by state and federal civil rights agencies.

The Solution:

• Whenever your association is considering changes to how it operates or what people may do within the community, make certain that you know which document must be amended to make the change as well as the procedure for amending that particular document.  In many cases, the documents themselves will contain provisions that tell you where the change should be made.  If not, seek the help of a knowledgeable lawyer.

• In many cases, a change in one section of one document will create the need for changes in other sections or other documents as well.  This is because different sections of the documents, and of the statutes on which they are based, have been drafted to work together with one another.  If you aren’t aware of how your proposed changes plays out with the rest of the documents and the statutes, Your amendment may create three new problems without fixing the original problem you were attempting to address.  The best way to avoid these sorts of problems is to involve your association’s lawyers in drafting or reviewing all proposed amendments to your rules and documents before calling a meeting to vote on them.

• There are many local, state and federal laws and regulations that limit or regulate what an association can do.  If you aren’t sure whether your association can take a particular action, seek advice before you act.  (One good rule of thumb is that the more strongly the board and the unit owners feel about an issue, the more likely it is that there may be a law about it and the more important it is to check before taking action.)

                                                                      Conclusion