To control the spread of the COVID-19 pandemic, the health crisis transition management law published in France’s Journal Officiel on June 1, 2021 extends the specific provisions established for condominium annual meetings through September 30, 2021.
Since June 9, the options for holding a condominium annual meeting are as follows:
- In person, with traditional or electronic voting, if held in a space authorized for public use (for example, a banquet hall or conference room), in compliance with current capacity and health guidelines.
- Via written consultation or mail-in voting
- Remotely as a virtual meeting, if the in-person option would not allow for sufficient physical distancing and other health measures and/or if the property management company so chooses.
A remote general meeting is understood to be a video conference or conference call or any other method of electronic communication through which the condo owners can be identified.
Moreover, through September 30, 2021, a single proxy may be delegated by more than three condo owners, so long as that individual’s total votes (their principals’ and their own) do not exceed 15% (rather than 10%) of the total votes in the condominium association.
For purposes of calculating the quorum and majority, all members participating via conference call or video conference are deemed present upon identification. While it is not necessary for these provisions to be provided for in the articles of incorporation, neither may any clause contradict them. These provisions are applicable regardless of the matter that the meeting is called to decide.
Condominium general meetings have been held since spring 2020 in specific formats due to health restrictions. While videoconferencing was possible, in many cases mail-in voting was preferred despite its limitations (see the following chapter). Most condominium associations were satisfied with voting on essential resolutions and generally postponed matters pertaining to construction, for example.
In-person Voting: An Option Again Since June 9
Some associations are still offering in-person general meetings, but only if they can comply with general protective measures and the current capacity limit of 4 m2/person. Aside from the difficulty of finding large enough rooms, the expense of renting such a space is another consideration, especially for larger associations.
That is why the decision was made to extend the provisions established during the pandemic to grant condo management companies the responsibility of “choosing technical methods and media that allow all condominium owners to participate in the general meeting.”
A noter, que lors d’une assemblée générale de copropriété en présentiel, le vote électronique sur smartphone ou tablette peut se substituer à la lourdeur et la lenteur des votes à main levée, accélérant, entres autres avantages, le processus de vote et l’annonce des résultats de chaque résolution. Il faut pour cela, que le syndic fasse appel à un prestataire ayant mis au point une solution de vote électronique.
Mail-in Voting: Simple but Not Without Limitations
Authorized by the ELAN Act of November 23, 2018, and by the order of November 18, 2020, as a fully fledged process for holding a General Meeting, the mail-in voting provision has been the big winner in the COVID era because it is easy to implement.
It has become part of the landscape, to the extent that a voting form is now a required element of any general meeting invitation.
In order to be counted, these votes must reach the management office at least three clear days prior to the planned date of the general meeting. Condo owners return the voting form attached to their invitation by mail or email; they retain a copy in case of any error.
However, when this method is used on a large-scale basis, it can prove unsuitable and cause frustration, as it severely limits the debate and decision-making typical of general meetings. Indeed, how can individuals’ points of view be heard and discussed just by sending a form in the mail? Some matters can’t be settled with a simple “yes” or “no”; they require debate or further detail, such as approving an investment or selecting a service provider. The risk is that decisions or construction will be delayed because voters’ intentions aren’t interpreted promptly.
Finally, in practice, mail-in voting remains difficult to audit and can pave the way for fraud or for certain votes to be left uncounted.
Remote Voting: Is an Online General Meeting the Ideal Alternative?
The COVID-19 pandemic not only put a temporary halt to general meetings in 2020, but also appears to mark the beginnings of digitization in this sector.
Holding general meetings via video conference was among the innovative solutions authorized as a means of getting around the constraints imposed by the health crisis, as an alternative to mail-in meetings. However, some condominium associations chose to offer both options concurrently: a general meeting via video conference for owners comfortable with that technology, and a mail-in voting option for others.
In order for the general meeting to be valid, the video or audio conferencing medium must enable identification of members and unbroken, simultaneous broadcast of the debates and deliberations. It must guarantee that members are able to participate meaningfully.
All votes are authenticated, as the owners’ expectation of security and trust requires. You get vote results and statistics in real time, which greatly reduces the length of general meetings, as is the case for in-person meetings using electronic voting.
In conclusion, between now and September, you can expect to continue using mail-in voting or video meetings, given the issues involved in holding general meetings in person.
Legal Texts and References
- Act No. 2021-689 of May 31, 2021, regarding health crisis transition management
- Order No. 2021-142 of February 10. 2021, extending certain provisions of Order No. 2020-304 of March 25, 2020, adapting the rules applicable to non-criminal courts and condominium association contracts
- Order No. 2020-1400 of November 18, 2020, adapting the rules applicable to non-criminal courts and condominium association contracts
- Decree of July 2, 2020, establishing the format of mail-in voting forms for condominium general meetings
- Order No. 2020-304 of March 25, 2020, adapting the rules applicable to non-criminal courts and condominium association contracts