Late notice for association meeting
Late notice for association meeting
A community association (the association) held a meeting that was adjourned to continue at a later date.
The decision to adjourn the meeting was taken after the association’s auditors stated that they could not discharge the Board of Directors from liability.
It was not entirely clear when the notice of the further meeting was sent out, but it was done no earlier than ten days before it was to be held.
Several members of the Board of Directors, including the S.HJ. who was one of the three plaintiffs, did not attend the meeting.
At the meeting, the Board of Directors resolved, among other things, to discharge the members from liability, which was then blamed by S.H., R.H. and S.H. who were plaintiffs in the case.
They argued that the notice of the continuation of the meeting had been sent out too late, which meant that the decision had been made in unauthorised order and would be revoked under section 53 of the Act on The Management of Communities (SFL).
Land and Environment Court
The issue of summons to continue the meeting was not regulated either in the Act on the Management of Communities or in the Association’s Statutes.
The Land and Environment Court (MMD) therefore sought guidance in the Economic Associations Act (EFL), which acted as a model for the creation of the SFL.
Since the foresight for the notice’s mailings was not directly regulated, MMD considered that the same rules should apply to continued general meeting as ordinary.
The notice should therefore be sent out no later than two weeks before the further meeting in accordance with the association’s statutes, which meant that it was done too late in the present case.
However, if the contested decision had not been affected by the late summons, it was not self-evident that it should be annulled (Judgment of the Land and Environment Court of Appeal of 27 December 2011 in Case F 6400-11).
R.H. and S.H. had attended the meeting and voted in the discharge decision.
S.HJ. had not been present, but since it was due to a long-scheduled trip, the court did not find that the plaintiffs had proved that his absence was due to the error in the summons.
As a result, it was not seen as evidenced that the notice error was the reason for the outcome of the discharge vote, which led to the conclusion that the agm decision would stand.
Land and Environment Court of Appeal
The Land and Environment Court of Appeal (MÖD) also found that the summons should be made as a new general meeting.
There had therefore been deficiencies in the notice procedure, since the notice should have been sent out no later than two weeks before the further meeting in accordance with the association’s statutes.
At the time, the next question was whether these deficiencies had affected the decision in question.
According to MÖD, such a breach of the association’s statutes generally meant that decisions taken at the meeting were made in unauthorised order.
However, this did not apply if all members were present at the meeting and approved its meeting (prop. 1973:160 p. 436), or if the deficiencies in the summons procedure had not affected the decision to the detriment of the members of the association (judgment of the Land and Environment Court of Appeal of 27 December 2011 in Case 6400-11).
The Court stressed the importance for members of being able to attend the meeting and influence its decisions, which made maintaining foresight a central part of the statutes.
MÖD found that if there was a deficiency in the summons procedure and all members did not attend the meeting and approved its being held, it could not be excluded that the deficiency affected the agm resolutions.
Thus, the fact that several members did not attend the meeting constituted grounds for overturning the contested decisions according to the Court, and the complainant’s action was upheld.
the Supreme Court
According to the Supreme Court (HD), it is the responsibility of the Board of Directors to send out the notice to the continuing meeting in accordance with the association’s statutes, since the date has not been decided in connection with the postponement of the meeting.
The court considers that even the notice of continued meeting must be sent out two weeks before it is held because there is no detailed regulation in the association’s statutes.
The summons has thus been sent out too late, which HD sees as a serious flaw in the summons procedure.
This, combined with the fact that not all members were present, indicates, according to the court, that the lack has affected the meeting’s decision.
Since the contested decision concerns the members’ discharge, it is also taken into account that S.HJ., as the association’s auditor, rejected discharge from liability at the first meeting.
According to HD, there may be situations where it is clear that errors in notice have no impact on the content of a decision (NJA 1973 p. 355).
In the present case, 12 members voted in favour of the discharge of members and two against, which therefore contradicts the fact that the summons procedure influenced the decision.
However, given the importance of maintaining foresight and the non-attendance of certain members at the meeting, it is not considered sufficiently substantiated that the inadequate summons has had no impact.
Hd thus determines the judgment of the Land and Environment Court of Appeal, meaning that the agm decision is rejected.