If your homeowners association has been unable, year after year, to obtain a quorum at its annual meeting so that no election can take place, your homeowners association should consider permitting electronic voting.
Although New York has not enacted a statute which specifically permits online voting (New Jersey, Florida and several other states have recently enacted such a statute), electronic voting is not prohibited under the New York’s Condominium Act, Not-for-Profit Corporation Law (“NFPCL”) or Business Corporation Law (“BCL”). The Condominium Act permits for the adoption of by-law provisions which are not inconsistent with the Act. The NFPCL was recently amended to permit notices to members to be given by electronic mail. The BCL permits Board members to participate via teleconference or “similar communications equipment allowing all persons participating in the meeting to hear each other at the same time.” As such, Board meetings can be held via web conferencing or internet phone services such as skype.
Based upon this, it appears that New York state law reflects an eagerness to adapt to electronic methods of communication and seeks to facilitate the day-to-day operations of boards for the benefit of owners. Courts are becoming increasingly supportive of these goals. As such, I would be supportive of a board’s interest in allowing online voting. However, in order to avoid a challenge to the outcome of a vote taken electronically, I suggest that the By-laws of the homeowners association be amended (rather than the adoption of a rule by the Board) to specifically permit electronic voting. Most By-laws require that an amendment would require the vote of at least 66 2/3rds in number of all units cast at a meeting.
The Amendment should provide that a ballot cast electronically should be counted for the purposes of determining a quorum. By doing so, due to the convenience of being able to vote from your lap top or phone, homeowners associations which have been unable to obtain a quorum for many years may be able to do so.