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Navigating Electronic Notice and Voting

James R. Stevens

Chuhak & Tecson, P.C.

30 S. Wacker Drive

Suite 2600

Chicago, Illinois 60606

(312) 444-9300

Navigating Electronic Notice and Voting

Basics of Electronic Notice and Voting

Generally, associations have the right to adopt reasonable rules and regulations regarding

their procedures and the operations of the association. This comes from Section 18.4 of the

Illinois Condominium Property Act and general references in the Common Interest Community

Association Act suggest that homeowners associations may, too. Both Acts allow associations

specifically to adopt rules regarding electronic voting. Interestingly, a savvy opponent could

claim that there is no need to adopt specific rules regarding electronic notice only, but we

recommend that associations do for a number of reasons.

The Illinois Condominium Property Act and Illinois Common Interest Community

Association Act have been amended, as of 2015, to allow both kinds of associations to adopt

electronic notice and electronic voting. These provisions give associations the flexibility to catch

up with at least the electronic age, and beyond. Both Acts intend that associations may pass

reasonable rules and regulations to add electronic voting, and that these changes do not

(normally) need to be made in an association’s declaration or bylaws, unless those documents

specifically prohibit electronic notice or voting.

Do Electronic Notice and Voting Apply for All Actions

Currently, the law addresses electronic notice and voting primarily for owner

participation in Association affairs and owner voting. This does not mean that

Associations cannot attempt to allow Board members to participate in meetings using

telephonic or electronic means so long as the means used allow everyone to participate, hear

the discussion and deliberation, and be privy to the information presented. Other applicable

laws conceive of directors participating in Board meetings using a telephone so long as all

attendees (and owners entitled to be

present)

can hear.

This does not address a Board's attempt to hold a meeting by email, which is still

problematic given the open meeting requirements incumbent on Illinois Associations and

should, likely, be avoided if possible due to Palm II considerations. If you have the

technology to do it, as long as all owners wishing to attend can do so and hear the

discussion and all directors may participate, you could theoretically hold a Board meeting

using an online meeting program, with some caveats.

Why Enact Rules for Both Voting and Notice?

As noted, a savvy opponent could claim that Section 18.8 and Section 1-85 already

mandate electronic notice without the passage of additional rules. However, this interpretation

opens a Pandora’s box of potentially-viable electronic notice methods and systems that would

render the day to day business of an association a practical nightmare. Adopting specific rules

regarding electronic notice allows an association to limit the types of electronic notice that can

be used and to make specific findings regarding the sufficiency of that notice method, as well as

to set the guidelines for how their association will handle electronic notice. Simply put, it is

better, in our reading of these provisions, to adopt a reasonable method (such as email) rather

than allow owners to receive notice via Facebook, Snapchat, text messages, fax machines, etc.

Boards should also, as part of these rules, provide for unit owners to have the obligation to keep

Navigating Electronic Notice and Voting

their information up to date, and specify a form that should be used. It is important to put the

information updating obligation back onto the owners to avoid extra responsibility (and potential

lack of notice issues) for the board or its manager.

Breaking Down the Components

1. These changes allow rules, as passed by Boards, in compliance with the applicable

Act and existing governing documents. This normally means a Board vote, not a unit

owner vote.

2. Declaration amendments to add electronic notice and voting are usually unnecessary

as long as the Declaration or Bylaws do not prohibit electronic notice or voting.

3. Electronic notice and voting are different, you can do one or the other, or both.

4. Keywords “acceptable electronic means” and “verifiable” are important to remember.

What Electronic Notice and Voting Are, and Are Not

1. Electronic notice and voting allow associations to go electronic for owners who opt in

to use electronic methods.

2. Electronic notice and voting do not require all owners to use these methods; those

who do not opt in still are entitled to receive notice by regular means (paper notice,

paper voting).

3. Electronic notice and voting can be extra work for managers and boards, but proper

implementation limits this problem with some foresight. Limit the acceptable

electronic means and be careful to avoid using “difficult” electronic means like text

messages, social networking, etc.

4. Electronic notice and voting cut down on paperwork, but they do not remove an

association’s obligation to keep records. Records of notices, ballots, and votes are

still kept for the time periods required by the various Acts and are still subject to

owner inspection upon proper request.

5. Some associations use voting vendors to handle the electronic vote distribution,

tallying, and reporting. This may not replace an actual election in all cases.

Electronic Voting: Ballots, Proxies, and Confusion

Electronic voting raises a whole host of questions about how to actually implement such

a change and use it smoothly. Keeping in mind that electronic voting must be by rule change per

the Illinois Condominium Act and Common Interest Community Association Act, associations

may adopt rules that allow for electronic voting. Electronic voting does not remove (in most all

cases) owners’ ability to vote on paper or in person. This can create confusion.

Navigating Electronic Notice and Voting

For Condominium Act properties, the law on elections and balloting can be quite

confusing. Section 18 of the Illinois Condominium Property Act, included in part with this

handout, removes proxy voting for Board elections if an Association has adopted electronic

voting. For Condominium Associations, this means that adopting electronic voting rules will

suspend the use of proxies in Board elections. It also underscores the timing requirements for

changes to voting rules which must be at least 120 days before an election in which they will be

used. Further, managers should be careful to make sure that their Boards are soliciting candidate

names at least 21 days in advance of the deadline to be included in the ballot, which deadline

shall not be less than 7 days before ballots are distributed. Ballots also shall go out not less than

10 and not more than 30 days before the election.

For Common Interest Community Association properties, the statute also removes

proxies for Board elections if you have adopted electronic voting. A copy of the relevant statute

is included in this handout. This creates an important problem for Common Interest properties:

adoption of electronic voting rules appears to eliminate the use of proxies for board elections,

which leaves only the use of electronic voting, in-person voting, or absentee ballots.

Associations should be careful when adopting electronic rules to make sure that their procedures

(and general voting rules and regulations) are congruent both with their declaration and the Act’s

requirements. Remember, in person voting will void an electronic vote.

Vendors for Voting and Issues

Many associations are turning to vendors to handle both electronic notice and voting.

Vendors may be a useful tool to help implement a system that takes a lot of responsibility off of

a manager or a board. However, boards should be careful to make sure vendors use methods that

comply with state law and should, we think, seek a qualified attorney’s opinion regarding their

specific vendor’s methods.

Using a vendor may not remove the obligation to hold an actual in-person voting

meeting. Owners still have an opportunity in both the Condominium Act and the Common

Interest Community Association Act to vote in person and to nullify their absentee or electronic

ballot by voting in person. There is not, presently, a way to do board elections “in the cloud”

without an in-person voting meeting of the ownership.

Vendors must also provide records of the votes received (ballots) and their tally of the

votes. Records of ballots and votes cast must be part of the association’s records and, we

suggest, should be printed and stored with any other regular ballots just as associations have

done in the past.

Every vendor will use a different method to collect votes, verify that the right person is

getting the ballot, and provide for some security to make sure, in their view, that the ballot is cast

by the right person without any “ballot stuffing” happening. However, the statutes make this

“verifiability” requirement something that is in the board’s discretion. We would suggest that

associations discuss with their vendor what specific security features appear to be part of their

voting program, how they will verify that only the right person is getting a ballot and voting, and

then boards may determine that the method used is secure enough for their purposes. We would

suggest that sufficient verifiability would include limiting ballots to being cast only by the person

Navigating Electronic Notice and Voting

receiving it, and some means of telling who has submitted which ballot online, such as a unique

email to return or a unique link to follow for each person voting or something similar; the

possibilities are endless.

Electronic Notice and Voting Checklist

1. Does the association have a desire to convert to electronic notice and/or voting and

does it have a significant number of people who would use it to make the (nominal)

cost worthwhile?

2. Has the association contacted its counsel for a qualified legal opinion and suggested

rules, forms, and procedures for electronic notice and voting?

3. Has the association started the process to implement rules, forms, and procedures

with proper notice to owners and full compliance with the existing governing

documents?

4. Is the condominium association planning to use electronic voting for an upcoming

meeting and if so, are you within the timeline to adopt voting rules? For homeowners

associations, what do the bylaws or declaration say regarding timing of voting rules?

5. If the association is using a vendor, has the vendor provided information the board

deems sufficient to show that ballots are cast in a verifiable way and that there is

some appropriate security procedure?

6. Will the association be able to maintain proper records of the notices sent, ballots

cast, and votes tallied?

In conclusion, electronic notice and voting can be useful tools to “go modern” for many

associations, but the implementation and process of using these tools is not quite as simple as it

may seem for most associations. Boards and managers should be careful to obtain a qualified

legal opinion when implementing either electronic notice or voting to make sure that the

Association is following the best practices and legal requirements of the applicable Act.

Navigating Electronic Notice and Voting

Common Text of Section 18.8 of the Illinois Condominium Property Act or Section

1-85 of the Illinois Common Interest Community Association Act regarding electronic

means:

“(a) Any notice required to be sent or received or signature, vote, consent, or

approval required to be obtained under any condominium instrument or any

provision of this Act may be accomplished using the technology generally

available at that time. This Section shall govern the use of technology in

implementing the provisions of any condominium instrument or any provision of

this Act concerning notices, signatures, votes, consents, or approvals.

(b) The association, unit owners, and other persons entitled to occupy a unit may

perform any obligation or exercise any right under any condominium instrument

or any provision of this Act by use of any technological means that provides

sufficient security, reliability, identification, and verifiability.

under any condominium instrument or any provision of this Act.

(d) Voting on, consent to, and approval of any matter under any condominium

instrument or any provision of this Act may be accomplished by electronic

transmission or other equivalent technological means, provided that a record is

created as evidence thereof and maintained as long as the record would be

required to be maintained in nonelectronic form.”

Navigating Electronic Notice and Voting

Section 18(b)(9) of the Illinois Condominium Property Act:

“(9)(A) except as provided in subparagraph (B) of this paragraph (9) in

connection with board elections, that a unit owner may vote by proxy executed in

writing by the unit owner or by his duly authorized attorney in fact; that the proxy

must bear the date of execution and, unless the condominium instruments or the

written proxy itself provide otherwise, is invalid after 11 months from the date of

its execution; to the extent the condominium instruments or rules adopted

thereunder expressly so provide, a vote or proxy may be submitted by electronic

transmission, provided that any such electronic transmission shall either set forth

or be submitted with information from which it can be determined that the

electronic transmission was authorized by the unit owner or the unit owner's

proxy;

(B) that 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;

(B-5) that 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 subparagraph, 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

any acceptable technological means as defined in Section 2 of this Act;

instructions regarding the use of electronic means for voting shall be distributed to

all 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; the

deadline shall be no more than 7 days before the instructions for voting using

electronic or acceptable technological means is distributed to unit owners; every

instruction notice must include the names of all candidates who have given the

Navigating Electronic Notice and Voting

board or its authorized agent timely written notice of their candidacy and must

give the person voting through electronic or acceptable technological means the

opportunity to cast votes for candidates whose names do not appear on the ballot;

a unit owner who submits a vote using electronic or acceptable technological

means may request and cast a ballot in person at the election meeting, thereby

voiding any vote previously submitted by that unit owner;

of the association is delivered to the board within 14 days after the board's

approval of a rule adopted pursuant to subparagraph (B) or subparagraph (B-5) of

this paragraph (9), the board shall call a meeting of the unit owners within 30 days

after the date of delivery of the petition; that unless a majority of the total votes of

the unit owners are cast at the meeting to reject the rule, the rule is ratified;

(D) that votes cast by ballot under subparagraph (B) or electronic or

acceptable technological means under subparagraph (B-5) of this paragraph (9)

are valid for the purpose of establishing a quorum;”

Navigating Electronic Notice and Voting

Section 1-25 (h-5) and (i) of the Illinois Common Interest Community Association Act:

“(h-5) A member may vote:

(1) by proxy executed in writing by the member or by his or her duly

authorized attorney in fact, provided, however, that the proxy bears the date of

execution. Unless the community instruments or the written proxy itself

provide otherwise, proxies will not be valid for more than 11 months after the

date of its execution; or

(2) by submitting an association-issued ballot in person at the election

meeting; or

(3) by submitting an association-issued ballot to the association or its

designated agent by mail or other means of delivery specified in the

declaration or bylaws; or

(4) by any electronic or acceptable technological means.

Votes cast under any paragraph of this subsection (h-5) are valid for the

purpose of establishing a quorum.

(i) The association may, upon adoption of the appropriate rules by the board,

conduct elections by electronic or acceptable technological means. Members

may not vote by proxy in board elections. Instructions regarding the use of

electronic means or acceptable technological means for voting shall be

distributed to all members not less than 10 and not more than 30 days before

the election meeting. The instruction notice 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 voting through electronic

or acceptable technological means the opportunity to cast votes for candidates

whose names do not appear on the ballot. The board rules shall provide and

the instructions provided to the member shall state that a member who submits

a vote using electronic or acceptable technological means may request and

cast a ballot in person at the election meeting, and thereby void any vote

previously submitted by that member.”

Navigating Electronic Notice and Voting

About Chuhak & Tecson’s Community Association Practice

Our attorneys offer a full range of services in the community association field,

representing condominium, townhome and homeowner associations, as well as cooperatives.

Clients benefit from our longstanding relationships with management companies, insurance

companies, accounting firms, lending institutions and other professionals whose services are

intertwined with community living.

We counsel clients on all association and board-related issues, from developer transition

through day-to-day operations. Our negotiation and litigation capabilities are the result of years

of experience representing associations, and we offer a cost-effective approach to dispute

resolution. If delinquent assessments are the issue, our team has developed a unique, low-cost

collection procedure that ensures consistent and responsive communication between our firm, the

management company and the association board.

We assist our clients in many other ways, including preparing and reviewing declarations,

bylaw amendments and loan documentation; negotiating contracts; analyzing insurance policies;

defending Fair Housing Act and discrimination complaints; answering legal questions as to

operations and governance; and defending associations in litigation.

Prepared by James R. Stevens of Chuhak & Tecson, P.C.

Chuhak & Tecson, P.C. does not warrant or guarantee the accuracy or content of this

document at the time you view it. This may be considered attorney advertising material. James

R. Stevens of Chuhak & Tecson, P.C. is responsible for this material. Nothing in this document

constitutes legal advice or an attorney-client relationship with Chuhak & Tecson, P.C. or its

constituent or affiliated attorneys. This material is provided for informational and educational

purposes only. This is not specific attorney advice or legal advice for you or your condominium

association; only your attorney may provide you with legal advice regarding your rights and

responsibilities. Please consult or hire an attorney to advise you of your legal rights.

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