How to implement electronic voting and notices within your association

Public Act 98-1042 took effect on January 1, 2015. This Public Act contains changes to both the Illinois Condominium Property Act (“Condominium Act”) and the Illinois Common Interest Community Association Act (“CICAA”) concerning associations’ ability to utilize electronic communications in sending notices and voting. Prior to adoption of the Public Act, an association wishing to send notices via email or take votes of the membership online were typically forced to amend their declarations and/or bylaws to do so, which often required approval of the members. Thanks to the recent changes in the law, associations can now take advantage of modern technology (and the efficiency and costs savings that come with it) without the need to obtain the approval of the membership. While many board members are aware of these recent changes to the law and the advantages of utilizing technology, many also have questions on how to actually implement these procedures within their association. This article will provide a general outline as to what steps must be taken before an association can begin sending notices and conducting elections electronically.

Step One: Preparation of the Rule

First, the association must prepare a rule which authorizes the board to send out notices to the members electronically. The rule should include such details as how a member may authorize the association to send notices electronically (email, fax, text, etc.) and that a member may revoke the authorization at any time. Further, the rule should provide that the member may also include an electronic address or a physical address to serve as the member’s address on any list of members which the association is required to provide upon request.

Next, the rule should set forth that proxies are not allowed for elections, but that a member is only allowed to vote either i) in person at the election meeting or ii) by the electronic system adopted by the association. The rule should also provide that instructions regarding the use of electronic means for voting are to be distributed to all unit owners not less than 10 and not more than 30 days before the election meeting, and that unit owners should have at least 21 days’ prior written notice of the deadline for a member to give the association notice of their candidacy.

Step two: Adopting the Rule

For a condominium, the association must first hold a meeting of the unit owners called for the specific purpose of discussing the proposed rule. The meeting should be called and held in the same manner as any other member meeting except that the notice of this meeting must contain the full text of the proposed rule, and no quorum is required at the meeting unless the declaration, bylaws or other condominium instrument expressly provides to the contrary. Once the meeting is held, the Board should vote to approve the rule at a duly called board meeting. For an association subject to CICAA, the meeting of the members is not required, and the rule can simply be voted on at a meeting of the board. But, a common interest community will need to review its own governing documents to determine if any specific procedures have been established concerning rule adoption. If the association is subject to the Condominium Act, any rule allowing elections to be conducted via electronic means must have been approved at least 120 days prior to the board election for it to be effective for that particular election.

Step three:         Obtaining owner consent and information

Both the Condominium Act and CICAA provide that, in order for an association to conduct business with an owner via electronic transmission or other technological means, the owner must give his or her written authorization. If an owner does not give his or her written authorization, the association must, at the association’s expense, conduct its business with the owner without using electronic transmission. As such, once the rule allowing electronic notices and elections is approved, the association should distribute forms to the owners allowing them to 1) authorize and consent to the use of electronic notices and 2) provide the association with the address/number to which notices should be directed.

With the adoption of a rule providing for electronic notices and voting, associations can operate much more efficiently and cost effectively, as well as potentially alleviating many of the concerns regarding how to conduct business in light of the decision in Palm v. 2800 Lake Shore Drive Condominium Association, et. al.