Are resolutions passed by owners’ associations that are not on the agenda valid?

Welcome to the blog of Southern. In today’s article, we will be discussing a topic of great interest and relevance: the validity of decisions taken within owners’ associations that have not been included in the notice of meeting or on the agenda.

Are decisions taken by owners’ associations on matters not included on the agenda valid?

We all know how important it is to foster a positive atmosphere of harmony within a residents’ association. This influences the joint decisions taken that affect all residents, and is essential to ensure that these decisions are in the best interests of the community and to the community’s satisfaction.

That is why, from time to time, regular meetings are held amongst the homeowners. These community meetings, usually organised by what is known as the “Proprietors” Committee’, are responsible for discussing matters affecting the community as a whole and for making final decisions on any issues of common interest. To this end, proposals are put to a vote and are approved or rejected by a majority.

What should you do if a new topic of interest arises?

Usually, the items on the agenda for these meetings are known to those attending in advance: this is known as the agenda. But what happens if a new matter of interest arises which requires the agreement of the owners’ association in order to be dealt with? Can a vote be taken at that point, even though it was not on the agenda for this meeting?

To put it another way: Is it legal to vote on and take action regarding matters that are not explicitly included in the so-called “Agenda’?

What does the law say on this matter?

The rules governing community life are set out in what is known as “The Condominium Act”. These regulations govern all aspects relating to the community’s governing bodies, the relationships between residents, and their rights and obligations towards other residents, tenants and property owners.

If we take a closer look at its content, we can see that in Article 16(2), It reads as follows:

“The meeting shall be convened by the chairperson or, failing that, by the organisers of the meeting, specifying the items on the agenda, the venue, and the date and time at which it is to be held on first call or, where applicable, on second call…”

and further down, it continues:

“Any owner may request that the Owners” Association consider and give its opinion on any matter of interest to the community; to this end, they shall submit a written request, clearly specifying the matters they wish to be discussed, to the chairperson, who shall include them on the agenda of the next meeting to be held.”

This makes it clear how important it is to include all the items to be discussed on the “Agenda”, and that this must be done in advance of the relevant meeting.

But we all know that, on many occasions – and taking advantage of the end of meetings (during the final “Questions and Comments” item) – topics not previously announced as part of the agenda are often discussed. Votes are even held, leading to decisions being taken on these matters.

The problem here is: is that legal? Does it not contravene the LPH?… and if it does, can the decisions taken be challenged?

What do judges say in their judgements?

Although laws aim to be as specific as possible, they often suffer from the problem that they are open to interpretation. That is why we need to refer to case law precedents concerning challenges to such votes and the decisions taken in their wake, in order to determine whether they are lawful or not.

I shall not make a case here regarding the judgements handed down on this matter, as it is not the purpose of this article to examine judicial assessments; I shall therefore confine myself to summarising the conclusions reached by bodies such as the Supreme Court itself on these issues.

To understand them better, we must first agree on a set of essential axioms.

The first of these is to recognise that attendance at meetings convened by the Neighbourhood Committee is voluntary and is contingent upon prior knowledge of the items to be discussed at the meeting. In other words, it is understood that a resident who attends a meeting does so because they are interested in discussing the issues that have been agreed to be discussed. These matters are those included on the agenda.

The second issue is the right of every resident to challenge any decision taken at a meeting, provided that the matter on which a decision was taken was not included on the agenda. If this challenge is not upheld by the Residents’ Association, it may even be taken to court as a complaint. L

Bearing these two factors in mind, let us therefore see what conclusions we can draw.

But then, are those votes valid?

The final conclusion is that, provided the decisions taken are not challenged by any resident, the vote on the matter in question is valid. In legal jargon, this is known as an “action subject to annulment”, as opposed to the concept known as an “action void ab initio”.

The latter refers to the possibility that the decision taken may contravene some other provision of our Criminal Code, but not necessarily this section of the LPH, provided that the entire owners’ association agrees to accept the vote and its outcome on the matter not included on the agenda.

In short, if all the residents agree, the decision is considered valid. However, it is sufficient for just one person to disagree for them to be legally entitled to lodge a legal complaint if the implementation of the decision – which was taken without prior notice so that it could be discussed at the meeting – is not revoked.

So, to avoid major problems and the resulting stress and expense that all these legal proceedings entail, let’s be good neighbours and respect the rules. Let’s look after the quality of our neighbourly relationships; let’s make living together a positive experience based on respect for others, and we’ll be happier.

We hope you found this article interesting. If you have any further questions, please feel free to contact us via this link