Remote Virtual Meetings

By Dean A. Riddle and Julie L. Dupont Riddle & Williams, P.C.

Here in Texas, we are now approaching four months of living with the Coronavirus pandemic and the changes to our everyday lives in response to the pandemic. One of the most evident changes is the implementation of social distancing, both by quite literally keeping distance during inperson interactions and by shifting to remote or virtual means of interacting. Even advertisers are taking notice, making commercials that joke about the common pitfalls associated with Zoom calls. More and more associations are seeking to also make this shift to remote interactions, particularly for official meetings of the board and the members, and are asking whether the association has the right to use services such as Zoom, Skype, and other videoconferencing options.

Both condominium associations and homeowners’ associations generally have the right to conduct board meetings by remote technology pursuant to the Texas Property Code. Virtual board meetings for homeowners’ associations are governed by Section 209.0051(c-2) of the Texas Property Code. Section 82.108(c)(1) of the Texas Uniform Condominium Act governs remote board meetings in condominiums and applies to both pre-1994 condominiums and newer condominiums unless the governing documents for the condominium expressly state otherwise. In both statutes, the board may meet by electronic or telephonic means so long as the technology allows each board member to hear and be heard by all other board members. For homeowners’ associations, since the board meeting must be open to the owners, the technology must also allow owners to hear using that same technology, and the notice of the meeting must provide the owners with instructions for accessing the meeting via that technology.

For meetings of the members, neither the Texas Uniform Condominium Act nor Chapter 209 of the Texas Property Code expressly provide that associations may hold meetings of the members by remote technology. In some instances, the governing documents for the association expressly allow member meetings by electronic or telephonic means. However, Section 6.002 of the Texas Business Organizations Code expressly provides that corporations may hold meetings of the members or governing persons of the corporation by conference telephone or other electronic communications system “subject to the governing documents of the corporation.” If the governing documents expressly prohibit virtual meetings, we do not believe that associations can hold a virtual meeting under the Texas Business Organizations Code. It is unclear whether other provisions in the governing documents, such as specific requirements as to the meeting location or provisions that expressly allow in person voting also trump the Texas Business Organizations Code’s permission for virtual meetings.

If the association holds a virtual meeting, the Texas Business Organizations Code requires that each person must be able to communicate with all other persons at the meeting. Boards should consider this requirement in selecting the technology to use, particularly for meetings of the members. The ability to mute all participants except for the person speaking is likely an essential feature. Additionally, the Texas Business Organizations Code requires that the association must be able to verify the identity of each person participating at the meeting. Again, if the association elects to hold an electronic meeting of the members, the association must ensure that it meets this requirement.

The best-case scenario is to have the governing documents expressly allow for electronic and telephonic meetings of the members. For some associations, the board has the power to amend the bylaws and may be able to do so to allow for virtual meetings. However, if an association does not have the express authority to hold remote meetings of the members and is unable to amend the governing documents, check with your attorney to evaluate whether your governing documents provide an argument that such meetings may be allowed under the Texas Business Organizations Code.

The foregoing is intended as general guidance on meetings held by remote/virtual means and is not intended as legal advice. If you have questions about your specific community’s ability to hold a virtual meeting, please consult your attorney.