On May 19, 2020, the Chamber ofDeputies andthe Federal Senate approvedBill1.179 / 2020, by Senator Antonio Anastasia, which providesfor the Emergency and Transitional Legal Regime for Private Law legal relations (RJET) in the period of the Coronavirus pandemic (Covid-19). This project authorizes the holding ofremote assemblies in condominiums until October 30, 2020 . Source: Federal Senate
On August 14, 2019, the Constitution, Justice and Citizenship Commission (CCJ)approvedBill548/2019, which allows the use of electronic voting in condominium assemblies. The electronic collection of votes could be released via the internet or another suitable means that allows individualized counting of absentee votes.Source:Federal Senate
Assemblies for multi-property condominiums, that property in which each owner of the same property owns a fraction of the time, can already hold their assemblies through our app .The Law that supports such permission is Law 13,777 of December 20, 2018, in its Article 1358 Q - item VIII and IX.
Brief report on the legality of condominium assemblies via app.
Voting via App for condo assemblies is within the law.
Art. 10 of Law No. 4,591 / 64 expresses what are the legal prohibitions imposed on tenants. In none of the seals imposed on the tenants by items I to IV of art. 10 there is a prohibition on the possibility that there may be remote voting in assemblies.
"There is, in the law, no prohibition on remote voting. On the other hand, there is nothing that legitimizes the practice as well. I suggest that the condominium implant the service in a special assembly for that, that it uses the App in another assembly and that, then, change the convention so that the use of the device does not encounter future problems "argues the lawyer specialized in condominiums and a columnist for SíndicoNet, Alexandre Marques. (Source: Sindiconet )
The use of electronic tools, such as voting at a distance in electronic form, by means of an application for electronic devices, in addition to being a fast, economical and safe tool, in principle, does not find any impediment in the provision of the inc. II of art. 5 of CF / 88. In fact, the use of electronic tools is recommended by the National Council of Justice (CNJ) and is already used by the Federal Revenue Service (RFB).
The use of the remote voting tool allows many people who have never participated and / or voted in assemblies, to do so through the application. It is, therefore, an effective collaboration for the exercise of freedom of vote. It also translates into the appreciation of the dignity of the voting person.
Thus, finding no impediment in any legal norm, including in the Condominium and Development Law (Law No. 4,591 / 64) and in the related Civil Code provisions (Law No. 10,406 / 02, arts. 1,331 to 1,358), the remote vote finds within strict legality. In addition to being legal, it makes it possible for all non-defaulting tenants, including those sick and in transit, for example, to effectively declare their will through the vote (Law No. 10,406 / 02, art. 107).
But, in any case, we recommend the necessary efforts to the changes in the Convention and the respective Internal Regulations of the Condominium in order to solve any kind of interpretations. We also offer our clients, free of charge, a wording to be included in the new Convention and the new Internal Regulations.
Closed companies, cooperatives (in Brazil)
On April 15, 2020, DREI Normative InstructionNo. 79 of April 14, 2020 was published in the Official Gazette of the Union,which provides for participation andremotevoting in closed limited companies' meetings and assemblies and cooperatives.Considering the provisions of art. 1.080-A, of the Civil Code, in art. 43-A, of the Law of Cooperatives and in § 2, of art. 121 of the Brazilian Corporation Law, added to their respective laws by Provisional Measure No. 931, of March 30, 2020,regulates participation and remote voting in closed, limited and cooperative corporations' meetings and assemblies.
The Securities and Exchange Commission, based on what expresses the sole paragraph of art. 121 of Law No. 6,404 / 76, since 2016 it has not only admitted voting at a distance but, going further, has made it mandatory as of 2017.
In other words, differently from what was placed for the condominium, in providing services to the publicly-held company, the consulting company would not even need to make efforts to promote changes in the respective Bylaws. According to the sole P. of art. 121 of Law 6,404 / 76, remote voting results from the Law itself.
"Art. 121. The general meeting, convened and installed in accordance with the law and the bylaws, has the power to decide all business related to the company's object and to take the resolutions it deems convenient for its defense and development.
Single paragraph. In publicly-held companies, THE SHAREHOLDER SHALL BE ABLE TO PARTICIPATE AND VOTE DISTANCE IN GENERAL MEETING, pursuant to the regulations of the Brazilian Securities and Exchange Commission. ” (emphasis added)
In this sense, there are several discretionary normative acts by the Securities and Exchange Commission (CVM). Among these, there are: CVM Normative Instruction 561/2015 that allowed the use of remote voting in 2016 and CVM Normative Instruction 570/2015 that changed some of the previous provisions, including the obligation from years 2017 and 2018; and CVM Resolution No. 741/2015, regarding the procedures to be applied in 2016.