Your Right to Attend HOA Meetings in Delaware

A lot of HOA frustration traces back to decisions made where owners weren't in the room — a budget approved, a rule adopted, a contract signed. In Delaware, the Delaware Uniform Common Interest Ownership Act (DUCIOA), 25 Del. C. Chapter 81, addresses how the association and its executive board meet and how owners are notified. (DUCIOA is the main statute for modern communities; older condominiums fall under the Unit Property Act, and the association's entity form pulls in its own law — see Which Delaware Laws Govern Your Community?.) This is general information, not legal advice — for how it applies to your specific situation, a licensed Delaware attorney is the right resource.

How much notice must a Delaware HOA give for owner meetings?

Generally, 10 to 60 days. Under § 81-308 of 25 Del. C. ch. 81, subch. III, except for emergency meetings, each owner gets notice not fewer than 10 nor more than 60 days before any regular or special unit owners' meeting. Section 81-308 does not reach communities created before September 30, 2009, and small planned communities can fall outside DUCIOA.

DUCIOA splits meetings into two sections. Section 81-308 covers meetings of the unit owners: "A meeting of the association must be held at least once each year." Special meetings may be called by the president, a majority of the executive board, or owners holding at least 20 percent of the votes (or a lower bylaw percentage). Except for emergency meetings, notice goes to each owner "not fewer than 10 nor more than 60 days in advance of any regular or special meeting of the unit owners."

The notice must state the time, place, and agenda (or the website where the agenda is posted), including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, any proposal to remove an officer or board member, and "A statement that in the absence of objection from any unit owner present at the meeting, the president may add items to the agenda." Two more protections follow:

"Regardless of the agenda, unit owners shall be given a reasonable opportunity at any meeting to offer comments to the executive board regarding any matter affecting the common interest community." — 25 Del. C. § 81-308

If the association doesn't notify owners of a requested special meeting within 30 days, the requesting owners may notify everyone themselves, and "Only matters described in the meeting notice required by this section may be considered at a special meeting" (§ 81-308).

Are HOA board meetings open to owners in Delaware?

Yes, after declarant control ends. Under § 81-308A(c) of 25 Del. C. ch. 81, subch. III, all executive board meetings are then open to unit owners except executive sessions held for listed purposes. The board must meet at least quarterly and may not use incidental or social gatherings to evade the open-meeting rule. Small planned communities can fall outside DUCIOA.

Board meetings have their own section. "A meeting of the executive board must be held at least quarterly" (§ 81-308A(a)), and the board and individual directors "shall not use incidental or social gatherings of directors or other devices to evade the open meeting requirements of this section." Unless the meeting is on a schedule already distributed to owners or is an emergency, owners get notice "not fewer than 10 nor more than 60 days in advance of the meeting," with an agenda that includes an opportunity for owner comment (§ 81-308A(b)).

"After the period of declarant control ends, all meetings of the executive board shall be open to the unit owners except for executive sessions held for purposes of" — 25 Del. C. § 81-308A(c)

The listed purposes are consulting the association's lawyer about, or discussing, litigation and similar proceedings or contract matters; labor or personnel matters; contract negotiations where early disclosure would hurt the association; and an owner complaint or alleged violation when public knowledge would violate that owner's privacy. Materials sent to the board before a meeting must be made reasonably available to owners at the same time, except unapproved minutes and executive-session materials (§ 81-308A(d)). And after declarant control ends, the board cannot use unanimous written consent in place of a meeting to "Adopt a rule, budget or special assessment" or to "Impose a fine or take action to enforce the declaration, bylaws or rules" (§ 81-308A(f)).

Which communities these sections reach

DUCIOA's effective date is September 30, 2009 (§ 81-103). For communities created before then, § 81-119 lists the sections that apply — and it includes § 81-308A and the records section, § 81-318, but not § 81-308. Even listed sections apply to those older communities "only with respect to events and circumstances occurring after the effective date." Smaller planned communities can fall outside nearly all of DUCIOA: one with no more than 20 units, or with a low average assessment set out in the statute, is subject only to a few title and land-use sections, "but to no other sections of this chapter," unless its declaration brings in the Act (§§ 81-118, 81-120). An older community's documents "may be amended to achieve any result permitted by this chapter" (§ 81-121(a)).

Where § 81-308 doesn't reach, meeting rules come from the community's own documents and other law. For condominiums under the Unit Property Act, the code of regulations must provide for "The method of calling meetings of unit owners and meetings of the council" (25 Del. C. § 2208(2)). An association organized as a Delaware nonstock corporation also answers to the General Corporation Law; for example, unless the certificate of incorporation or bylaws say otherwise, "One-third of the members of such corporation shall constitute a quorum at a meeting of such members" (8 Del. C. § 215(c)(1)).

Is a Delaware HOA board action void if meeting rules are broken?

No, not automatically. Where § 81-308A of 25 Del. C. ch. 81, subch. III applies, subsection (g) makes a board action valid unless a court sets it aside, and actions taken in violation are voidable by the court. A challenge may not be brought more than 60 days after the minutes are approved or the action's record is distributed to owners.

Notice exists so owners can show up and participate before a decision is locked in. DUCIOA does not make a board action void automatically when the meeting rules are broken: under § 81-308A(g), "an action by the executive board is valid unless set aside by a court," a challenge for failure to comply "may not be brought more than 60 days after the minutes of the executive board of the meeting at which the action was taken are approved or after the record of that action is distributed to unit owners," and "Actions taken at an executive board meeting in violation of this section are voidable by the court." How that applies to a particular decision is a question for a licensed Delaware attorney.

The governing documents fill in the detail

DUCIOA sets the floor, but your declaration and bylaws typically spell out specifics — how notice is delivered, what counts as a quorum, and how owners get items onto an agenda. The association is expected to follow its own documents on top of the statute, so both are worth reading side by side.

Minutes are records you can get

The association must keep "Minutes of all meetings of its members and executive board" (§ 81-318(a)(2)). Those records are open to owners for examination and copying when the request is "made in good faith and for a proper purpose related to the owner's membership in the association," on five days' written notice (§ 81-318(b)) — see Getting Your HOA's Records in Delaware. Minutes of an executive session of the board can be withheld under § 81-318(c)(7). If you could not attend, the minutes are how you find out what was decided and who voted.

If meetings are closed or unnoticed

When an owner believes the board is meeting without proper notice or shutting owners out of meetings the Act opens to them, the options include raising it with the board in writing, contacting the state's HOA Ombudsperson for information, and — for unresolved disputes — consulting a licensed Delaware attorney about whether § 81-308, § 81-308A, or the bylaws were violated, keeping in mind the 60-day limit in § 81-308A(g).

Sources

• 25 Del. C. §§ 81-308, 81-308A — Unit owner meetings; executive board meetings
• 25 Del. C. § 81-318 — Association records
• 25 Del. C. §§ 81-103, 81-118 to 81-121 — Effective date; small and preexisting communities
• 25 Del. C. Chapter 81 — Delaware Uniform Common Interest Ownership Act
• 25 Del. C. § 2208 — Contents of the code of regulations (Unit Property Act)
• 8 Del. C. § 215 — Voting rights of members of nonstock corporations; quorum