Chapter 6 - § 6.7 • VOTING
| Jurisdiction | Colorado |
§ 6.7.1—Generally
Under the Nonprofit Corporation Act, unless the bylaws provide otherwise, only the voting members may vote on any matter the Act requires or permits to be submitted to a vote of the members. All references in the Act to votes of or voting by the members are deemed to permit voting only by voting members.155 A "voting member" is defined as "any person or persons who on more than one occasion, pursuant to a provision of a nonprofit corporation's articles of incorporation or bylaws, have the right to vote for the election of a director or directors."156
Also, unless the bylaws provide otherwise, each member who is entitled to vote has one vote on each matter submitted to a vote of members.157 If a membership of record is in the names of two or more persons, and only one of them votes, that action binds all of them, and if more than one person votes, the vote must be divided on a pro-rata basis, unless the bylaws provide otherwise.158 The Act allows for "voting groups"159 and "voting agreements."160
The CCIOA conflicts with the Nonprofit Corporation Act on several of these matters. First, the CCIOA explicitly does not limit a member to a single vote, but allows the declaration or bylaws to allocate a portion of the votes in the association,161 and simply requires that the declaration "state the formulas used to establish allocations of interests."162 This language closely tracks that of the Uniform Common Interest Ownership Act on which it is based. A commentary explains that under that language, the allocation of interests in a common interest community might be made equally among all units, in proportion to the relative size of each unit, or on the basis of any other formula regardless of the value of those units.163 Thus, there is no "one unit, one vote" requirement, although that would appear to be the "default" position where the declaration or bylaws do not clearly allocate votes on some other basis.
Regarding multiple owners of one unit, the CCIOA does not provide for each owner to vote and the vote to then be divided on a pro-rata basis. Instead, it states that if only one of the multiple owners is present at an association meeting, that owner is entitled to cast all the votes allocated to the unit, but if more than one of the multiple owners is present, the votes allocated to the unit may be cast only in accordance with an agreement of a majority in interest of the owners, unless the declaration expressly provides otherwise. The CCIOA also states that there is majority agreement if any one of the multiple owners casts the votes allocated without protest being made promptly to the person presiding over the meeting by any of the other owners.164
In a departure from the usual practice of common interest communities, the CCIOA allows and anticipates voting by lessees. The Act provides that if the declaration requires that votes on specified matters be cast by lessees rather than unit owners of leased units: (1) the other statutory voting requirements remain applicable, (2) owners who have leased their units to others may not cast votes on those specified matters, and (3) lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners.165
The CCIOA provides for secret ballots. Votes for contested seats on the governing board must be taken by secret ballot unless the documents provide for election by delegates on behalf of the owners.166 And, at the discretion of the governing board, or on request of 20 percent of the owners present at a meeting or represented by proxy, a vote on any matter affecting the community on which all owners are entitled to vote must be by secret ballot.167
The CCIOA precludes votes allocated to a unit owned by the association from being cast.168
§ 6.7.2—Electing Members of the Board of Directors
The Nonprofit Corporation Act allows the bylaws or the articles of incorporation169 to provide for cumulative voting for directors by the voting members, and explains how cumulative is to be implemented.170 Under the Act, cumulative voting is not authorized at a particular meeting unless the meeting notice or statement accompanying the notice stated that cumulative voting would take place or a voting member gives notice during the meeting — and before the vote is taken—of his or her intent to cumulate votes. If one voting member gives that notice, all other voting members participating in the election will be entitled to cumulate their votes without giving further notice.171 When cumulative voting is in effect, a director may not be removed if the number of votes cast against removal, or not consenting in writing to removal, would be sufficient to elect that director if voted cumulatively at an election for that director.172 The Act prohibits cumulative voting if the directors and members are identical.173
When an election is held for multiple directors, the number of candidates equaling the number of directors to be elected, having the highest number of votes cast in favor of their election, are elected to the board, but when only one director is being voted on, the affirmative vote of a majority of those constituting a quorum at the meeting at which the election occurs is required for election.174 The affirmative vote of a majority of members constituting a quorum at the meeting at which the election occurs is required for election to the board. The Nonprofit Corporation Act allows for three other specific means of voting for election of directors, or for any "reasonable" method provided in the bylaws.175
Under the CCIOA the declaration may provide for a period of declarant control of the association, during which the declarant may appoint and remove the officers and members of the governing board.176 The declaration may set forth the time limits of that control, but by statute the period must terminate no later than the earlier of 60 days after conveyance of 75 percent of the units that may be created to owners other than the declarant, two years after the last...
To continue reading
Request your trial