Many community associations struggle to obtain sufficient membership participation when seeking a vote or an action by the membership (e.g., amending the CC&Rs, special assessments, etc.). In those scenarios, associations should evaluate whether their governing documents permit the membership action to be taken without holding a formal meeting of the membership.
A.R.S. § 10-3704 provides a “written consent” procedure for taking membership action by collecting documents that (1) describe the action being taken and (2) are signed by those members representing the requisite amount of the voting power as established by Arizona law (or the governing documents where applicable). The written consents have the same effect as a meeting vote. However, it is generally easier to reach a high voting threshold through the written consent process as Arizona law allows the period of time to collect the consents to be extended further than the deadline to notice and hold a membership meeting. When using a written consent, the proposed action continues until the date that the consent is signed by the last members whose signature results in the requisite amount of the voting power, unless another date has been adopted by the Board of Directors.
Given the potentially open ended nature of the written consent process, the association could be collecting consents for several months before a result is achieved. During that time, there will be ownership changes and questions will arise as to whether the prior owner or the new owner is authorized to submit a consent. As a result, the association should consider setting an appropriate “record date” for determining who is eligible to return a consent. KEEP IN MIND: A record date may already be set forth in the association’s governing documents or established at the time the written consent is issued. The following outline the general steps for determining the record date:
- Confirm whether the record date is established in the governing documents. If so, you’ll need to use that record date.
- The record date is most commonly established through the Bylaws.
- If a record date is not otherwise established, the Board may set a record date through an adopted resolution
- It is common to establish the record date as the date the final consent is received to achieve the result. In doing so, the Association determines the membership on the date that the final consent it received to achieve a result and confirms that the requisite consents are signed by the then current owners rather than owners that may have transferred title in the property while the proposal was pending.
- If no record date is established, the record date for determining members entitled to take action without a meeting is the date the first member signs a consent.
If you or your community association is proposing an action for membership consideration, please reach out to the firm for assistance and to evaluate whether proposing a written consent will assist in the process. Call us toll free at (800) 743-9324 or email moc.w1757120671albdh1757120671c@ofn1757120671i1757120671.
The information contained in this article is not intended to be legal advice and is provided for educational purposes only.
