Is Your HOA Fulfilling Its Responsibilities Re Minutes of Meetings?

State laws and the governing documents for all homeowners associations require the preparation and proper maintenance of minutes of all meetings of the association’s board of directors and members. Maintaining proper minutes is critical to the operations of a homeowners association because the minutes constitute the official record of all proceedings that were conducted by the association. Notwithstanding the laws and the requirements contained in governing documents, it is commonplace for homeowners associations to not appreciate the importance of maintaining proper minutes and to allow important events to go undocumented and/or prepare incomplete minutes that lack necessary content to evidence such things as the existence of a required quorum, or the granting of authority to someone to act on behalf of the association, or the approval of a contract. Unfortunately, all too often, it is through subsequent costly litigation over issues that were not properly documented in minutes that the association learns the hard way about the importance of the minutes.

The person most directly responsible for taking the minutes of board and membership meetings is the secretary of the association. The association’s bylaws will typically specify this responsibility of the secretary who, like all other officers of the association, is appointed by the board of directors and serves at the pleasure of the board. Although it is common for association boards to authorize a management company representative or some other person to assist in the taking and preparation of the minutes of a meeting, the secretary must oversee their preparation and sign the final minutes after they have been approved by the board of directors. By signing the minutes, the secretary is attesting to the fact that the minutes were approved by the association’s board of directors and not ratifying or supporting items that are documented in the minutes. To facilitate the documenting of what transpired at a meeting and the preparation of the minutes, the secretary is frequently permitted to record the meetings that are not conducted in private or executive session. For information on the form and content of minutes, see our article posted on May 6, 2014, entitled, “The Importance of Maintaining Proper Minutes of HOA Board Meetings”.

After the meeting to be documented in the minutes, a draft of the proposed minutes should be prepared. State statutes and/or the association’s governing documents may impose time limitations for the preparation of the draft minutes and further direct that they be made available to the association’s members for review and that notice of the right to review minutes must be periodically (i.e. annually) delivered to the members. The draft of the proposed minutes should be prominently marked with a notation that they are only a draft that has not been approved (i.e. “Draft”). After the draft minutes are prepared, the association’s secretary should distribute the minutes to the directors for review and any comments relative to the need for corrections and/or revisions. There is no requirement for delivery of draft minutes to the members, but they are entitled to request a copy. Generally, the draft that is made available to the members is after required corrections and revisions have been incorporated into the document. The final draft of the proposed minutes is then retained by the secretary for action at the next board meeting in the form of discussion and approval.

After the minutes have been approved by the association’s board of directors, they should be published or distributed to association members in some approved fashion such as posting at a known common area location or on an association website, and/or mailing copies to the members. The approved minutes should then be maintained in the form of hard copies that are organized chronologically in a notebook (minute book) that is permanently available for inspection by directors and/or members. Included with the minutes should be copies of notice of the meeting and any signed waivers of notice. To facilitate future use and distribution of the minutes, copies of these items should also be scanned and stored as electronic files in the association’s records. Minutes of executive session meetings that are not open to attendance by members should be separately maintained as they are not subject to inspection by the association members.

Association boards and management personnel should be familiar with the provisions contained in their state statutes and their association’s governing documents concerning the preparation and retention of minutes of director, committee, and member meetings and proper procedures should be adopted to ensure that they are in compliance with those provisions.