CoE doesn't count blank votes, court does. Who had it right?

“Including the proxy ballots, the results are as follows:

- Scenario 1: 37 votes

- Scenario 2: 20 votes

- Scenario 3: 17 votes

- Blank: 6 votes

- Along with the majority: 3 votes”

Next, the VvE concludes:

“The 3 majority votes are added to the majority, scenario 1, so with 40 votes the meeting decides to develop a detailed plan for scenario 1.”

A total of 83 votes were present or represented at the meeting. The question before the judge was whether it was therefore sufficient that 40 votes were cast in favor of scenario 1. The VvE thought so, but the judge thought not. That had to do with how they handled the blank votes.

Judge: association resolution is void

First, the court ruled that the decisions made at the meeting in this case with a “majority vote (more than half) can be taken”. This follows from Article 36(1) of the applicable Model Rules (MR 1973). According to the judge, however, that majority was not achieved. The judge considered:

“3.6. Nevertheless, the court notes that a simple majority of votes (more than half) was not obtained in the vote for the resolution by the CoE in this case. Indeed, 40 out of 83 votes were cast in favor of the resolution, as the minutes clearly show. Under the main rule governing this resolution, that is insufficient to adopt the resolution. The court will therefore annul the resolution of the VVE of November 7, 2023, because it was taken in violation of the regulations in Article 5:127 BW and MR 1973.”

Court goes awry for three reasons

In my view, the court misses the point for three reasons. The first reason may be semantic, but I do not think it is unimportant. Namely, the court ‘nullified’ the decision. That is not correct. The decision is null and void, and the court can ‘rule’ that it is so. However, the court ruling does not make the decision null and void; in fact, it already was. More important, however, is (a) how the question of what majority is needed for a decision is handled and (b) how blank votes are handled.

BoE takes decision by a number of the votes cast

Indeed, the court erred in finding that the decisions with “majority vote” be taken. That's not what the model regulations say. It says that decisions with “majority of released vote” are taken. This is a little different. Apparently, in fact, there were 6 votes that were not cast. Those were the blank votes. So the judge should have concluded that there were 77 votes cast and a majority of them (40, that is) voted for scenario 1.

Blank votes in CoE only of value for quorum

To remove any doubt about that, MR 1973 still determines: “blank votes are of no value”. Thus, these do not participate in the counting of votes cast. In later model regulations states this even more clearly, stating that blank votes only matter in determining whether a quorum is present.

Lawyer appeals verdict in VvE case

In my opinion, therefore, the judgment is unjustified. It is not known to me whether the attorney for the VvE appeal brought against the judgment.