QUESTION: We sent out the annual meeting package, including ballots, in a timely manner. During the time between the mailing and the meeting, a property was sold. Is the prior owner allowed to vote? What happens to the "secret ballot" they returned? Should the new owner get a ballot to vote for directors?
ANSWER: If your bylaws are silent on the issue, we can turn to the Corporations Code for the answer. It provides that boards may fix a date as the "record date" for the purpose of determining the members entitled to vote at the meeting. The record date cannot be more than 60 days before the date of the meeting. If no record date is fixed, members on the day of the meeting who are otherwise eligible to vote are entitled to vote at the meeting. (Corp. Code §7611(b).)
This sometimes creates problems when new owners show up to vote but they don't appear as such on the election inspector's record from the association. If the new owners don't bring proof of ownership, they will be turned away. That puts the association in violation of the Corporations Code. The best way to address the issue is to amend the association's bylaws and election rules to implement section (c) of the Code, which makes the record date the date the ballots are mailed (unless the board actually sets a date). (Corp. Code §7611(c).)
Typically, the record date is set a few days to a week in advance of the mailing of the ballots (see Election timeline). This allows time to prepare election materials, put labels on ballot envelopes, and print a voter list for the Inspector of Elections to use at the election meeting. Anyone who becomes a member after that date, may attend the membership meeting but is not eligible to vote.
Suspended Voters. It should be noted that members who are eligible as of the record date can still have their voting rights suspended.
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