Our goal for this article is to answer many of the common questions surrounding the election of board members for a condominium association. This is by no means a complete list of questions, but it should provide anyone with a good understanding of how this process should work. As always, if you have questions that were not answered please feel free to email us at email@example.com.
Here is a list of the questions that we’ll answer in this post:
- At what meeting does the election of board members occur?
- When should this meeting occur?
- What notices, if any, must be sent to the unit owners related to this meeting?
- When must these notices be sent?
- Must notices be sent via certified mail with tracking?
- Can emails be sent as a replacement for mailed notices?
- Can we post a notice in a common area instead of mailing notices?
- What if we do not have reliable mailing addresses for all owners?
- What happens if the board does not follow one or more of these rules?
- How do we determine the number of board members that we should have?
- How do you determine how many board positions are “open” and need to be filled?
- What are the methods available for the list of candidates to be gathered?
- If there are more than one owner of a unit can both of them be on the board at the same time?
- What information about the candidates can be provided to the unit owners, if any, to assist them in evaluating the options?
- What is a proxy?
- Is the use of a proxy always allowed?
- If there are two open board positions how many votes does each unit owner have?
- How is each unit owner’s vote weighted?
- If there are multiple owners of a unit, how do they vote?
- If a resident is purchasing a unit through an installment contract (contract purchaser) can he or she vote? Can this person be on the board?
- What is cumulative voting? How can you determine if cumulative voting is allowed?
- What is a ballot?
- What information should be collected from the unit owner on the ballot?
- Can an association use secret ballots?
- Can a unit owner demand to be a witness of the ballots being counted?
- How are the winners determined?
- How are the positions assigned to each board member assigned? (President, Secretary, etc)
- What should happen to the ballots that are collected?
- What notices, if any, should be sent to the unit owners after elections occur?
- If a candidate requests a list of all owners so that he or she can lobby for their votes, must the Board provide this information?
Here we go!
Q1. At what meeting does the election of board members occur?
A1. Elections happen at a special type of meeting called an “annual meeting” or “members meeting”. This is in contrast to a traditional board meeting where the members of the board meet to conduct their normal business. (Unit owners are also allowed to attend normal board meetings)
From a practical perspective there is little difference between the types of meetings outside of the notices that must be provided to unit owners in advance of the meeting. This is discussed in the following questions.
Q1-A. When should this meeting occur?
A1-A. The annual meeting should occur once per year on the date specified in your association’s governing documents. (Meaning, look in your Bylaws)
Q1-B. What notices, if any, must be sent to the unit owners related to this meeting?
A1-B. A notice must be mailed or delivered to all unit owners that details the time, place and purpose of the meeting.
Q1-C. When must these notices be sent?
A1-C. Notices making unit owners aware of the meeting must be sent 10 to 30 days before the meeting. Here is the language from the IL Condominium Property Act:
..written notice of any membership meeting shall be mailed or delivered giving members no less than 10 and no more than 30 days notice of the time, place and purpose of such meeting;
Q1-D. Must notices be sent via certified mail with tracking?
A1-D. No. Thankfully there is no requirement to track the notices being mailed. Traditional US Postal mail will meet the requirement.
Q1-E. Can emails be sent as a replacement for mailed notices?
A1-E. No. The IL Condominium Property Act is still antiquated with regards to technology and makes no mention of email or other electronic communications. Mailed letters are still required.
Q1-F. Can we post a notice in a common area instead of mailing notices?
A1-F. No. It may be a good idea to post a notice in a common area of the property in addition to the mailed notices, but the posting itself only meets the requirement of proper notification for normal board meetings. For meetings of the members (The annual meeting included) specific mailed notices are required.
Q1-G. What if we do not have reliable mailing addresses for all owners?
A1-G. The burden lies with the unit owners to keep the Board updated with any off-site mailing addresses. You should mail notices to the most current address that you have on file for the owner.
If your board is struggling to maintain current contact information you may want to send a contact information form to all owners via email and postal mail and ask them to complete and return the form. (A template is available on this site) Remind the owners that having their current contact information will ensure that the board is able to get critical information to them when required.
Q1-H. What happens if the board does not follow one or more of these rules?
A1-H. We get asked this question all the time. The honest answer is that nothing bad will likely happen if the Board fails to follow the rules related to elections and many of the other requirements detailed in the IL Condominium Property Act. That stated, we highly recommend that you take the time to follow these steps to avoid any potential headaches.
If these rules aren’t followed then the actions and decisions made at the meeting may be deemed invalid. For example, if owners weren’t properly notified then the election itself was invalid and it may be argued that the new board members are not official. If this new board makes any decisions it could then be argued that the decisions are also invalid since the Board was not properly elected.
It only takes a single owner to raise the issue and the Board will be faced with a serious problem. In all likelihood the association would need to re-perform the entire process and hold new elections. If nothing else the situation will be a huge hassle that could have been easily avoided by following the proper steps.
Q2. How do we determine the number of board members that we should have?
A2. This will be defined in your association’s governing documents. You must have at least 3 board members; a President, Secretary and Treasurer. Any further positions, such as a Vice President or “At Large” members will be defined in your governing documents.
Q3. How do you determine the number of board positions that are “open” and need to be filled?
A3. This depends on how elections have been handled in the past. The IL Condominium Property Act requires that at least 1/3 of the board members expire annually. This means that if you have a 3-member board, at least one spot must be open each year. Many boards have all positions open for re-election each year. Others use 2-year terms with staggered start dates.
Q4. What are the two methods available for the list of candidates to be gathered?
A4. Determining which unit owners wish to (or are willing to) be on the board can either take place during the meeting or beforehand. This decision will affect the options available related to proxies, which will be reviewed later in this document.
If “nominations are taken from the floor” then eligible candidates will be discovered at the beginning of the meeting. (Essentially any owner that is eligible and willing to be on the board can raise their hand and becoming a candidate) These candidates are then written on the ballots so that owners can cast their votes. The downside to this approach is that since the candidates are not known until the time of the meeting, it is impossible for an owner who is unable to attend the meeting to cast their vote in advance. (via a proxy) The upside of this approach is that it takes a minimum amount of coordination.
The alternative is determining which owners are willing to be on the board well in advance of the meeting. This is usually accomplished by notifying owners that all candidates need to notify the board by a certain deadline if they wish to be listed on the official candidates list. The list of final candidates can then be sent to unit owners along with the meeting notice and proxy form. The proxy form will allow an owner that is unable to attend the annual meeting to document his or her selections and have another person attend the meeting in their place. Basically, this is having someone else show up and vote on your behalf.
If candidates are known in advance then owners utilizing a proxy may elect to define how their votes are to be cast by the person showing up in their place. Otherwise the owner must trust the proxy to make decisions on their behalf.
Q5. If there are more than one owner of a unit can both of them be on the board at the same time?
A5. No. If there are multiple owners of unit only one shall be eligible to serve as a board member at any time. If a husband and wife own two units within the same association, however, they could both be elected to the board since they represent more than one unit.
Q6. What information about the candidates can be provided to the unit owners, if any, to assist them in evaluating the options?
A6. The board may provide unit owners with biographical and background information about the eligible candidates, but they must follow three rules:
- They must provide information about all candidates.
- All candidates must be given the opportunity to include their own biographical and background information to be included with the board-generated information.
- The board must not express a preference in favor of any candidate.
Q7. What is a proxy?
A7. In the realm of condo association elections, a proxy is a form that allows unit owners that are unable to attend the annual election meeting to send another trusted person to vote in their place. The proxy form, provided by the Board, is completed by the unit owner and defines the person authorized to attend the meeting in their stead.
The owner can optionally express a preference for any of the known candidates for the board or to write in a specific name(s). This assumes that the candidates are known in advance.
The IL Condominium Property Act states that for a proxy form to be valid, it must be signed and dated. Lastly, unless specifically stated otherwise on the proxy form, no proxy is valid for longer than 11 months.
Q8. Is the use of a proxy always allowed?
A8. No. That stated, in our experience most associations in Chicago do allow voting via proxy. The use of a proxy is allowed unless it is prohibited in the association’s Articles of Incorporation or bylaws. The use of a proxy can also be disallowed by a rule, but the rule must provide specific alternatives as detailed next. (This rule would be in the association’s Rules & Regulations)
An interesting section of the IL Condominium Property Act allows the board to pass a rule whereby unit owners may not vote by proxy in board elections, but instead have two options for submitting their ballot. Under this rule owners may submit their ballot, 1) in person at the meeting, or 2) by delivering the ballot in advance of the meeting by mail or other means of delivery defined in the rule itself. In short, this rule would outlaw the use of a proxy, but allow owners to submit a completed ballot via mail.
In order to make this rule work the Board needs to jump through a few hoops from a process perspective. First, ballots must be mailed or distributed to unit owners 10 to 30 days before the election meeting. This is the same requirement as the meeting notices so they can simply be sent together.
The ballots must include the names of all candidates. To achieve this the board must notify all unit owners and give them no less than 21 days’ written notice of the deadline for submitting their name if they wish to be included on the ballot as a candidate. This deadline can be no more than 7 days before the ballots are mailed to the unit owners. This means that after the candidates are known, the ballots must be mailed out quickly so that too much time does not pass.
In short, you need to make the owners aware of the deadline for submitting candidates to the board about a month ahead of time. The board must then mail out the ballots, presumably with the meeting notices, to all owners within a week of passing that deadline. The ballots and a meeting notices must be mailed out 10 – 30 days before the date of the election. The language from the IL Condominium Property Act is below for your reference:
… if a rule adopted at least 120 days before a board election or the declaration or bylaws provide for balloting as set forth in this subsection, unit owners may not vote by proxy in board elections, but may vote only (i) by submitting an association issued ballot in person at the election meeting or (ii) by submitting an association issued ballot to the association or its designated agent by mail or other means of delivery specified in the declaration, bylaws, or rule; that the ballots shall be mailed or otherwise distributed to unit owners not less than 10 and not more than 30 days before the election meeting, and the board shall give unit owners not less than 21 days’ prior written notice of the deadline for inclusion of a candidate’s name on the ballots; that the deadline shall be no more than 7 days before the ballots are mailed or otherwise distributed to unit owners; that every such ballot must include the names of all candidates who have given the board or its authorized agent timely written notice of their candidacy and must give the person casting the ballot the opportunity to cast votes for candidates whose names do not appear on the ballot; that a ballot received by the association or its designated agent after the close of voting shall not be counted; that a unit owner who submits a ballot by mail or other means of delivery specified in the declaration, bylaws, or rule may request and cast a ballot in person at the election meeting, and thereby void any ballot previously submitted by that unit owner;..
Q9. If there are two open board positions how many votes does each unit owner have?
A9. The owner of each unit has a single vote for each open board position. If there are two open board positions, each unit owner has two total votes. If there are three open positions, each owner has three votes. (Remember, however, that all votes are not weighted equal)
Q10. How is each unit owner’s vote weighted?
A10. Unless otherwise stated in your association’s bylaws each owner’s vote is weighted based upon the unit that they own. Specifically, the vote is based on the percentage of ownership within the association that the unit represents. The percentage of ownership associated with each unit can usually be found in the association’s declaration document.
Q11. If there are multiple owners of a unit, how do they vote?
A11. Regardless of the number of owners, each unit provides its owners with a single vote for each open board position. Related to the casting of votes the IL Condominium Property Act states that when there is more than one owner of a unit, if only one of the owners is present at a meeting, he or she is entitled to cast all the votes allocated to that unit.
If more than one of the owners are at the meeting, the votes allocated to that unit may be cast based upon the “majority agreement” of the owners, unless the association’s declaration expressly provides otherwise.
The Act then defines majority agreement as being achieved if “any one of the owners cast 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.” In short, as long as none of the co-owners complain, the vote is assumed to represent the majority consent of the owners.
Q12. If a resident is purchasing a unit through an installment contract (contract purchaser) can he or she vote? Can this person be on the board?
A12. Let’s first define what an installment contract is. An installment contract is an agreement between a seller and buyer, under which the buyer agrees to pay to the seller the purchase price plus interest in installments over a set period of time. When the contract is signed the buyer immediately takes possession of the condo and can move in, but the seller retains legal title to the property until the buyer pays the full purchase price.
The seller delivers the deed and legal ownership is transferred to the buyer once the final payment is made. Installment contracts are an alternative to traditional mortgage financing and is most typically offered to buyers that cannot obtain a traditional home loan.
Since the buyer is not the legal owner of the unit the question becomes which of the parties (seller or buyer) retains the rights of an owner to vote, participate on the board, etc. According to the IL Condominium Property Act the buyer can vote and participate on the board as long as 1) he or she resides in the unit, and 2) the sales contract does not prohibit this. This means that the sales contract between the buyer and seller may specify that the seller will retain all condo rights (voting, etc) until the title has been transferred.
The Act is specific that only one of the parties can participate at any time. It is either the buyer or the seller, but cannot be both. The Board may require evidence of the contract showing that these powers have been transferred to the buyer.
Q13. What is cumulative voting? How can you determine if cumulative voting is allowed?
A13. Cumulative voting refers to the ability of a unit owner to “pool” his or her votes together when casting their votes. This only applies if more than one board position is open. In such cases each unit owner has one vote per open seat as detailed earlier in this document.
For instance, if the board has three open positions, each unit owner has three votes. If cumulative voting is not allowed, each owner must cast a single vote for three different candidates. If cumulative voting is allowed, an owner may elect to pool his or her votes and apply some or all of them to a single candidate.
For example, an owner may decide to cast two votes for Jimmy and one vote for Molly. Another owner may elect to cast all three of his votes for Jimmy. Yet another owner may decide to cast one vote for Jimmy, one vote for Molly and one vote for Susan. That is the flexibility provided through cumulative voting.
You must refer to your association’s bylaws to determine if cumulative voting is allowed at your association, but it is most often permissible in our experience.
Q14. What is a ballot?
A14. A ballot is simply a tool given to a unit owner to document his or her vote(s). Normally this is nothing more than a piece of paper which contains a list of the eligible candidates.
Each owner is given a ballot where he or she will write their name, percentage of ownership and how they would like to cast their votes. Completed ballots are returned to the election leader where they can be counted and the winner(s) can be determined.
Q15. What information should be collected from the unit owner on the ballot?
A15. Unless the association is using secret ballots (reviewed in the next question) a typical ballot will require the owner to provide their name, unit information (to determine percentage of ownership) and their vote(s).
Q16. Can an association use secret ballots?
A16. Yes. The IL Condominium Property Act does allow for an association to pass a rule allowing the use of secret ballots whereby the voting ballot is marked only with the percentage of ownership for the unit and the vote itself. (This would be a rule in the association’s Rules & Regulations)
The Act requires that the rule also have a documented method used to verify the status of the unit owner issuing a proxy or casting a ballot. Lastly, the rule must allow any candidates with the right to be present at the counting of ballots.
Q17. Can a unit owner demand to be a witness of the ballots being counted?
A17. It depends. The law requires that any candidate, or the candidate’s representative, be allowed to be present at the counting of the ballots. This means that if the owner was a candidate then he or she must be allowed to be present when the ballots are counted. The person must either be an official candidate or one of the candidates must deem the person to be their representative.
Q18. How are the winners determined?
A18. The candidate(s) receiving the highest number of weighted votes is the winner. The number of winners is determined by the number of open board positions.
For example, if there are two open board positions, the two candidates receiving the highest number of weighted votes are declared the winners. Both are elected to the board; first place or second place makes no difference.
Calculating the number of weighted votes that each candidate received may be a bit confusing at first. As detailed earlier in this document, all votes are not weighted the same. Meaning, some owner’s votes are worth more, or are more impactful, than others.
Recall that the weight, or power, of each owner’s vote is based upon their unit’s percentage of ownership within the association. In the association’s declaration document you will find a list or table documenting the units within the association and the percentage of ownership allocated to each. (Totaling 100%) If a candidate receives a vote from an owner with a percentage of ownership equal to 15% then they will defeat a candidate receiving a vote from an owner with a percentage of ownership equal to 10%.
When counting votes I find it easiest to turn each owner’s vote into “points” based upon their percentage of ownership. We know that the total of all units’ percentage of ownership is 100%. Therefore there are a total of 100 points available amongst the unit ownership for each open board position.
To help visualize this approach we will use a simple example. The table below shows a sample of a 6 unit condo association and the voting points available to each unit based upon its percentage of ownership. Let’s assume that there is one open board position for this association’s election with two candidates, Bob and Stan.
% of Ownership
If I am responsible for calculating the winner then I will have a stack of completed ballots in front of me. (Presumably 6) Using this method I will simply go through each ballot and keep a tally sheet of the number of “points” earned by each of our two candidates. (Bob and Stan)
Ballot 1: Unit 5, Vote = Stan
Ballot 2: Unit 6, Vote = Stan
Ballot 3: Unit 2, Vote = Bob
Ballot 4: Unit 3, Vote = Bob
Ballot 5: Unit 1, Vote = Bob
Ballot 6: Unit 4, Vote = Bob
For Ballot #1 I will refer to my percentage of ownership table and find that the owner of Unit 5 has a vote worth 31 points. On my tally sheet I mark down “+31” next to Stan’s name.
For Ballot #2, we find that Unit 6 carries a vote worth 23 points. I will now mark down “+23” next to Stan’s name.
For Ballot #3, we find that Unit 2 carries a vote worth 18 points. I will now mark down “+18” next to Bob’s name.
For Ballot #4, we find that Unit 3 carries a vote worth 8 points. I will now mark down “+8” next to Bob’s name.
For Ballot #5, we find that Unit 1 carries a vote worth 8 points. I will now mark down “+8” next to Bob’s name.
For Ballot #6, we find that Unit 4 carries a vote worth 12 points. I will now mark down “+12” next to Bob’s name.
Now that we have processed all of the ballots we simply add up the total number of points received by each owner. We find that even though Bob received votes from four owners he still did not win. Stan is the winner since he received the highest total number of points, albeit from only two unit owners.
We will use the same exact process for all elections even if there are multiple open board positions. The key with multiple open positions is to remember that each owner will have one vote for each open position. Everything still works the same including converting the owner’s vote into points and adding them up based upon the candidates that the owner votes for.
Also keep in mind that cumulative voting is typically allowed which means that owner’s ballots will likely have more than one vote applied towards a single candidate. No problem. If a ballot has all three votes applied towards Stan, for example, we will figure out how much each of the owner’s votes are worth by checking the percentage of ownership chart for the unit. Let’s imaging each vote is worth 12 points. Since the owner applied all three of their votes to Stan, we will give Stan 36 points. (12 +12 + 12) We then move on to the next ballot.
As you will quickly see, the process is the same even if there are multiple open board positions, cumulative voting, or hundreds of units that are voting. Just count your points and keep a tally next to each candidate!
Q19. How are the positions assigned to each board member assigned? (President, Secretary, etc)
A19. The election is only to determine which owners are elected to the Board. The unit ownership does not vote to decide on which position each person will occupy while on the Board. The members of the board will decide amongst themselves, via a board vote if required, the positions that each will fulfill.
Keep in mind that the “power” of each board member is identical since each board member’s vote is weighted the same. Whether you are the President or an At Large member of the board, your vote is counted the same.
Q20. What should happen to the ballots that are collected?
A20. The IL Condominium Property Act requires the board to maintain ballots for a minimum of one year. Normal meeting minutes from board meetings must be maintained for 7 years.
We would advise the board to scan the ballots into a digital format where they can be easier stored in an organized fashion for years.
Q21. What notices, if any, should be sent to the unit owners after elections occur?
A21. The IL Condominium Property Act does not make any requirements related to notifying unit owners about election results. That stated, we believe that this is an important step since there is typically a low turnout at most meetings.
Q22. If a candidate requests a list of all owners so that he or she can lobby for their votes, must the Board provide this information?
A22. This may be surprising, but the IL Condominium Property Act does require the Board to provide a unit owner, upon request, with the names, addresses and percentage of ownership of each unit owner that is eligible to vote at a meeting. This information must be provided within 30 days of the request.