A large, upscale HOA in Arizona, with a CAI member attorney, is using a voting procedure to approve amendments that employs Consent Forms.
The distributed Consent Form is, in reality, a vote by ballot: a rose by any other name is a rose. As such, it does not conform to the law, ARS section 33-1812. The relevant subsection is (A), paragraphs (1), (2) and (4), require that the ballot itself set forth each proposal, that the member be able to vote for each proposed amendment instead of a blanket “all or nothing,” and a date for submission of the ballot must be provided in order to be counted, respectively.
Furthermore, contrary to established democratic election procedure, the Consent Form has no set “cutoff date” for tabulating the ballots; it’s an open-ended procedure that hopes to obtain a quorum of votes and an approval, no matter how long it takes — maybe in 2 months, a year, or in 5 years.
In addition, there is no option for a NO vote on the Consent form, the members being told that not submitting the Consent is a NO vote. Not so! In effect, it could be an actual NO vote, or an I don’t care vote. It doesn’t make sense to promote non-voting by suggesting not to send in the form. Unheard of!
With the open-ended procedure the HOA will continue to influence and pressure the members to do what’s good for the HOA, in the Board’s mind, and submit their Consent. It’s electioneering without an opportunity for a voice by the opposition. That’s outrageous!
“In mid-February, watch for mailing to those homeowners whose consents have not “yet been recorded by Membership. The mailing is being sent to make certain everyone knows of the Consent Process and serves as a reminder to those who might have misplaced the Consent Form or have delayed signing in their busyness of life in xxxx.”
Being allowed to submit a NO vote easily settles the matter for the member to exercise his voting rights. It also allows the NO member to avoid undue influence. But the procedure doesn’t allow the member to submit his NO decision.
In short, the HOA election procedure disenfranchises the membership and makes a mockery of the governing document’s right to a meaningful vote. Is it a valid voting procedure?
HOA Constitutional Government 
George,
I thank you for this article. I live in a HOA that is currently doing amending CC&Rs that are 21 years old — and doing it by “signed consent”. I listened to the Associations attorney state emphatically that “signed consent” is NOT a vote and therefore the Association is allowed to deal with this in in a manner NOT covered by 33-1812 — the “signed consent” is open ended and the Association is allowed to continue to contact the people that have NOT returned it. Basically, the Association is given the ability to continue to influence the process BUT homeowners that may be opposed to the amended CC&Rs can only sit back and wait while the Association continues to take more bites out of the apple. In 2012, I took this association to court over a flawed election process. I won but it took over three years and a trip to the Arizona Appeals Court! I honestly do not have the stomach to do that again. ANY SUGGESTIONS?
The Annual Membership meeting has gone by with only some 5,000 Consent Forms received and would constitute a failure to approve thee amendments if generally accepted election procedures were followed. Undeterred, 2 weeks after, the BOD has issued another of its lobbying for approval newsletters:
“WHO DO YOU KNOW SHOULD SIGN THE CONSENT FORM?
Our community is in the home stretch. Therefore, the Consent Committee is asking all residents to reach out to their friends and neighbors to round up the rest of the signatures needed to update and improve our CC&Rs and Bylaws. Before the winter residents leave our amazing community, encourage them to visit xxxx and click on the “How to Consent” circle, download and sign a Consent Form and drop it off in any of the Consent ballot boxes located throughout the community.”
Seems like shady elections are the norm in HOAville