Bill Text: AZ HB2483 | 2020 | Fifty-fourth Legislature 2nd Regular | Introduced
Bill Title: HOAs; meeting technology; voting rights
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced - Dead) 2020-01-30 - House read second time [HB2483 Detail]
Download: Arizona-2020-HB2483-Introduced.html
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REFERENCE TITLE: HOAs; meeting
technology; voting rights |
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State of
Arizona House of
Representatives Fifty-fourth
Legislature Second Regular
Session 2020 |
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HB 2483 |
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Introduced by Representatives Carroll: Biasiucci, Cobb |
AN ACT
amending
sections 33-1248, 33-1250, 33-1804 and 33-1812, Arizona Revised Statutes;
relating to condominiums and planned communities.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 33-1248, Arizona Revised Statutes, is amended to read:
33-1248. Open meetings; exceptions; applicability
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the unit owners' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted allowed to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit allow a member or a member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping or videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its their use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of unit owner in the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of unit owner in the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
5. Discussion of a unit owner's appeal of any violation cited or penalty imposed by the association except on request of the affected unit owner that the meeting be held in an open session.
B. Notwithstanding any provision in the condominium documents, all meetings of the unit owners' association and the board shall be held in this state. A meeting of the unit owners' association shall be held at least once each year to elect directors as necessary and to conduct any other business of the members. Special meetings of the unit owners' association may be called by the president, by a majority of the board of directors or by unit owners having at least twenty‑five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten nor or more than fifty days in advance of any meeting of the unit owners, the secretary shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of on record for each unit owner or to any other mailing address designated in writing by the unit owner. The notice of any meeting of the unit owners shall state the date, time and place of the meeting. The notice of any annual, regular or special meeting of the unit owners shall also state the purpose for which the meeting is called, including the number of board of directors' positions to be filled, the general nature of any proposed amendment to the declaration or bylaws, any changes in assessments that require approval of the unit owners and any proposal to remove a director or officer. The failure of any unit owner to receive actual notice of a meeting of the unit owners does not affect the validity of any action taken at that meeting.
C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the portion of the meeting for that specific subject matter.
D. Notwithstanding any provision in the declaration,
bylaws or other condominium documents, for meetings of the board of directors
that are held after the termination of declarant control of the association,
notice to all unit owners of meetings of the board of
directors and the agenda for the meeting shall be given
at least forty‑eight hours in advance of the meeting by newsletter, and by conspicuous posting or any
other reasonable means as determined by the board of directors. An
affidavit of notice by an officer of the association is prima facie evidence
that notice was given as prescribed by this section. Notice to unit owners of meetings of the
board of directors is not required if emergency circumstances require action by
the board before notice can be given.
Any notice of a board meeting shall state the date, time and place of
the meeting. The failure of any unit owner to receive actual notice
of a meeting of the board of directors does not affect the validity of any
action taken at that meeting. Any electronic or other communication between a quorum of the board of
directors for the sole purpose of establishing an agenda for the meeting does
not constitute a violation of this section if there is no discussion or
deliberation on those agenda items before the meeting.
E. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:
1. The agenda shall be available to all unit owners attending.
2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty‑eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
3. A quorum of the board of directors may meet by means of a telephone conference or other electronic or digital means if a speakerphone or other electronic or digital device is available in the meeting room that allows board members and unit owners to hear all parties who are speaking during the meeting.
4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
F. The draft minutes of any open
meeting or the open portion of any board of directors' meeting shall be made
available to any unit owner on request not later than fifteen business days
after the meeting occurs.
F. G. It is the policy of this state as reflected in this section that all meetings of a condominium, whether meetings of the unit owners' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the unit owners of the matters to be discussed or decided and to ensure that unit owners have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board or of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
G. H. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
Sec. 2. Section 33-1250, Arizona Revised Statutes, is amended to read:
33-1250. Voting; proxies; absentee ballots; applicability; definition
A. If only one of the multiple owners of a unit is present at a meeting of the association, the owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
B. During the period of declarant control, votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. The proxy is revoked on presentation of a later dated proxy executed by the same unit owner. A proxy terminates one year after its date, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.
C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Absentee ballots may be delivered and returned by electronic or digital means. Notwithstanding section 10‑3708 or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The ballot shall set forth each proposed action.
2. The ballot shall provide an opportunity to vote for or against each proposed action.
3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.
5. The ballot does not authorize another person to
cast votes on behalf of the member. A ballot may not be accepted at the meeting from anyone other than the
voting unit owner.
6. The completed absentee ballot shall contain the name, the address and unit number, if applicable and either the actual or electronic signature of the person voting, except that if the condominium documents permit allow secret ballots, only the envelope shall contain the name, the address and either the actual or electronic signature of the voter.
7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for unit owner inspection for at least one year after completion of the election.
8. FOR BALLOTS that include THE
ELECTION OF BOARD MEMBERS, THE BALLOT must IDENTIFY THE NUMBER OF sEATS to be
filled, the names of ALL QUALIFIED candidates FOR THOSE seats AND WHETHER
CUMULATIVE VOTING WILL BE Used, IF ALLOWED IN THE CONDOMINIUM DOCUMENTS.
9. IF AN ONLINE VOTING SYSTEM IS
USED, IT MUST include ALL OF THE FOLLOWING:
(a) AUTHENTICATion
of THE unit owner's IDENTITY.
(b) AUTHENTICATion
of THE VALIDITY OF EACH ELECTRONIC VOTE TO ENSURE THAT THE VOTE IS NOT ALTERED
IN TRANSIT.
(c) TRANSMITtal
of A RECEIPT TO EACH unit owner WHO CASTS AN ELECTRONIC VOTE.
(d) STORAGE of
ELECTRONIC VOTES FOR RECOUNT, INSPECTION AND REVIEW PURPOSES.
10. THE ASSOCIATION shall ensure THE
INTEGRITY OF THE VOTING PROCESS, INCLUDING PREVENTING BALLOT TAMPERING,
ENSURING An ACCURATE BALLOT COUNT AND ENSURING THAT PRELIMINARY VOTING RESULTS
ARE NOT DISCLOSED directly or indirectly TO ANY unit owner, INCLUDING BOARD
MEMBERS who HAVE NOT YET VOTED.
D. Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.
E. Notwithstanding subsection C of this section, an association for a timeshare plan as defined in section 32‑2197 may permit allow votes by a proxy that is duly executed by a unit owner.
F. If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units all of the following apply:
1. The provisions of Subsections A and B of this section apply to lessees as if they were unit owners.
2. Unit owners who that have leased their units to other persons shall not cast votes on those specified matters.
3. Lessees are entitled to notice of meetings, access to records and other rights respecting those matters as if they were unit owners. Unit owners shall also be given notice, in the manner prescribed in section 33‑1248, of all meetings at which lessees may be entitled to vote.
G. Unless the declaration provides otherwise, votes
allocated to a unit owned by the association shall not be cast.
H. Notwithstanding any provision in
the condominium documents, an association or board of directors may suspend a
unit owner's voting rights or eligibility for membership on the board of
directors only for reason that the unit owner has failed to pay one or more
assessments. The right to run for office
and to be placed on the ballot is not subject to additional association
screening, approval or criteria other than the qualifications required in the
declaration and bylaws and assessment payment status.
H. I. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
J. If the association is found to
have violated this chapter in conducting elections or ballot measures, the
court may invalidate the election or ballot measure as deemed appropriate by
the court.
I. K. For the purposes of this section, "period of declarant control" means the time during which the declarant or persons designated by the declarant may elect or appoint the members of the board of directors pursuant to the condominium documents or by virtue of superior voting power.
Sec. 3. Section 33-1804, Arizona Revised Statutes, is amended to read:
33-1804. Open meetings; exceptions
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted allowed to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit allow a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping and videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its their use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
5. Discussion of a member's appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session.
B. Notwithstanding any provision in the community documents, all meetings of the members' association and the board shall be held in this state. A meeting of the members' association shall be held at least once each year to elect directors as necessary and to conduct any other business of the members. Special meetings of the members' association may be called by the president, by a majority of the board of directors or by members having at least twenty‑five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten nor or more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand‑delivered hand delivered or sent prepaid by United States mail to the mailing address on record for each lot, parcel or unit owner member or to any other mailing address designated in writing by a member. The notice shall state the date, time and place of the meeting. A notice of any annual, regular or special meeting of the members shall also state the purpose for which the meeting is called, including the number of board of directors' positions to be filled, the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting.
C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the portion of the meeting for that specific subject matter.
D. Notwithstanding any provision in the declaration,
bylaws or other community documents, for meetings of the board of directors
that are held after the termination of declarant control of the association,
notice to all members of meetings of the board of
directors and the agenda for the meeting shall be given
at least forty‑eight hours in advance of the meeting by newsletter, and by conspicuous posting or any
other reasonable means as determined by the board of directors. An
affidavit of notice by an officer of the corporation is prima facie evidence
that notice was given as prescribed by this section. Notice to members of meetings of the board of
directors is not required if emergency circumstances require action by the
board before notice can be given. Any
notice of a board meeting shall state the date, time and place of the
meeting. The failure of any member to receive actual notice of a
meeting of the board of directors does not affect the validity of any action
taken at that meeting. Any
electronic or other communication among a quorum of the board of directors for
the sole purpose of establishing an agenda for the meeting does not constitute
a violation of this section if there is no discussion or deliberation on those
agenda items before the meeting.
E. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:
1. The agenda shall be available to all members attending.
2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty‑eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
3. A quorum of the board of directors may meet by means of a telephone conference or other electronic or digital means if a speakerphone or other electronic or digital device is available in the meeting room that allows board members and association members to hear all parties who are speaking during the meeting.
4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
F. The draft minutes of any open
meeting or the open portion of any board of directors' meeting shall be made
available to any association member on request not later than fifteen business
days after the meeting occurs.
F. G. It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board of directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
Sec. 4. Section 33-1812, Arizona Revised Statutes, is amended to read:
33-1812. Voting; proxies; absentee ballots; definition
A. Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit lot may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Absentee ballots may be delivered and returned by electronic or digital means. Notwithstanding section 10‑3708 or the provisions of the community documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:
1. The ballot shall set forth each proposed action.
2. The ballot shall provide an opportunity to vote for or against each proposed action.
3. The ballot is valid for only one specified election or meeting of the members and expires automatically after the completion of the election or meeting.
4. The absentee ballot specifies the time and date by which the ballot must be delivered to the board of directors in order to be counted, which shall be at least seven days after the date that the board delivers the unvoted ballot to the member.
5. The ballot does not authorize another person to
cast votes on behalf of the member. A ballot may not be accepted at the meeting from anyone other than the
voting member.
6. The completed absentee ballot shall contain the name, address and unit or lot number, if applicable, and signature of the person voting, except that if the community documents permit allow secret ballots, only the envelope shall contain the name, address and signature of the voter.
7. Ballots, envelopes and related materials, including sign-in sheets if used, shall be retained in electronic or paper format and made available for member inspection for at least one year after completion of the election.
8. FOR BALLOTS that include THE
ELECTION OF BOARD MEMBERS, THE BALLOT must IDENTIFY THE NUMBER OF SEATS to be
filled, the names of ALL QUALIFIED candidates FOR THOSE seats AND WHETHER CUMULATIVE
VOTING WILL BE Used, IF ALLOWED IN THE COmmunity DOCUMENTS.
9. IF AN ONLINE VOTING SYSTEM IS
USED, IT MUST include ALL OF THE FOLLOWING:
(a) AUTHENTICATion
of THE member's IDENTITY.
(b) AUTHENTICATion
of THE VALIDITY OF EACH ELECTRONIC VOTE TO ENSURE THAT THE VOTE IS NOT ALTERED
IN TRANSIT.
(c) TRANSMITtal
of A RECEIPT TO EACH member WHO CASTS AN ELECTRONIC VOTE.
(d) STORAGE of
ELECTRONIC VOTES FOR RECOUNT, INSPECTION AND REVIEW PURPOSES.
10. THE ASSOCIATION shall ENSURe THE INTEGRITY
OF THE VOTING PROCESS, INCLUDING PREVENTING BALLOT TAMPERING, ENSURING An
ACCURATE BALLOT COUNT AND ENSURING THAT PRELIMINARY VOTING RESULTS ARE NOT
DISCLOSED directly or indirectly TO ANY MEMBER, INCLUDING BOARD MEMBERS who
HAVE NOT YET VOTED.
B. Votes cast by absentee ballot or other form of delivery, including the use of e‑mail and fax delivery, are valid for the purpose of establishing a quorum.
C. Notwithstanding any provision in
the community documents, an association or board of directors may suspend a member's
voting rights or eligibility for membership on the board of directors only for
reason that the member has failed to pay one or more assessments. The right to run for office and to be placed
on the ballot is not subject to additional association screening, approval or
criteria other than the qualifications required in the declaration and bylaws,
and assessment payment status.
C. D. Notwithstanding subsection A of this section, an association for a timeshare plan as defined in section 32‑2197 may permit votes by a proxy that is duly executed by a unit owner.
E. If the association is found to
have violated this chapter in conducting elections or ballot measures, the
court may invalidate the election or ballot measure as deemed appropriate by
the court.
D. F. For
the purposes of this section, "period of declarant control" means the
time during which the declarant or persons designated by the declarant may
elect or appoint the members of the board of directors pursuant to the
community documents or by virtue of superior voting power.
