Ask the Attorney by Nigel H. Mendez, Esq. | Carlson & Associates, Ltd.
This column is comprised of questions that have been posed to me by homeowners, property managers and related professionals regarding legal issues that they have encountered with respect to their associations. Discussion of these questions, as well as prior questions, can be found on the CAI-MN LinkedIn page: www.linkedin. com/groups?gid=1769135
Q:
I am on the Board of my condominium association and was contacted by a member requesting a mailing list for all members. Do I need to give them that? Should I check with the other members to see if they want their contact information released?
A:
This is a question that I get fairly often. Minn. Stat. §515B.3-118 requires that associations governed by the Minnesota Common Interest Ownership Act (MCIOA) keep records of membership, owner meetings, board meetings, committee meetings, contracts and other agreements and material correspondence and memoranda relating to their operations. In addition, financial records must also be retained. Minn. Stat. §515B.3-118 provides that all records “shall be made reasonably available for examination by any unit owner or the unit owner’s authorized agent....” Therefore, associations should provide the membership list when a request is made. Owners are not able to “opt-out” of being included in the list of members. If the request is for an electronic copy, and the association maintains an electronic copy, it must be provided in that format. However, if the association does not maintain electronic copies, it does not have to type in the data just to satisfy the request. If copies are requested, the association may charge for the copies. If the request is fewer than 100 pages, the charge may not exceed 25 cents per page. For larger requests, an association may charge the actual costs incurred in fulfilling the request. These costs may include the time of an agent or employee to respond to the request. For associations that are not governed by MCIOA, the Minnesota Nonprofit Corporation Act provides guidance. While Minn. Stat. §317A.461 does not directly deal with member lists, it does require the association to allow reasonable access to a collection of documents related to the association. Subdivision 5 allows the association to charge a reasonable fee to cover the expenses of providing the requested documents. Finally, it is important to review the association’s declaration and bylaws, which might have additional disclosure requirements.
Q: A:
Our association requires that units be owneroccupied. We have a unit that is owned by an LLC. Who can live in the unit?
If your association has rental restrictions or has an owner-occupancy requirement, the question of what to do when an entity such as a limited liability company (LLC) owns the unit will arise. If the association is governed by the Minnesota Common Interest Ownership Act (MCIOA) you can look to the statutes for guidance. If not, the association’s declaration may provide details on such occupancy rights. MCIOA, specifically in §515B.1-103(37), defines a Unit Owner as “a declarant or other person who owns a unit . . . but does not include a secured party.” A Person is defined in §515B.1-103(25) as “an individual, corporation, limited liability company, partnership, trustee under a trust, personal representative, guardian, conservator, government, governmental subdivision or agency, or other legal or commercial entity capable of holding title to real estate.” Therefore, for an MCIOA association that requires a unit to be owner-occupied, the proper occupants are the individual owners, a member of an LLC, a trustee of a trust, or a shareholder of a corporation. An association would be permitted to require proof of an individual’s status with an entity to ensure that the individual is a member or shareholder.
Q: A:
We tried to have an annual meeting but did not make quorum—what happens to our board? Do they remain directors?
In order to conduct business of the association, including electing directors, a meeting of the members must reach a quorum. The bylaws will often contain either the number of units that must be represented or the percentages of votes in the association that must be present, in person or via proxy to constitute a quorum. Many associations have an option to reconvene a meeting at a later date if quorum was not met, and the quorum requirement at a reconvened meeting may be lower. In associations governed by MCIOA, and that don’t have a quorum specified in their bylaws, quorum is present when the meeting is attended, in person or via proxy, by members who are entitled to cast at least twenty percent of the votes in the association.1 For non-MCIOA associations, quorum is obtained if ten percent of the members attend, in person or via proxy.2 1) Minn. Stat. §515B.3-109(a) 2) Minn. Stat. §317A.451, subd. 1
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Minnesota Communit y Living