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LynneV1 (South Carolina)
Posts: 211
Posted:
Our board had mediated a major issue very poorly. We lost our 50% interest in a pool to a neighbor community 2 wks before the election.They got re-elected as the info did not surface until election day.
We want to impeach then have gotten 51% vote between ballots and petitons. They refuse to step down . We must go to court. They are hiring a lawyer to protect them (its 3 members of the 5 directors) and charging the legal fees to the homeowners . is that legal? I feel the individual impeachment should be at their own expense. I personally am paying the court fees to impech them and for all the mailings.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Lynn,

A board may use Associations lawyers to defend a challenge against the Association. By taking the issue to court, you are actually filing legal action against the Association (ran by the Board) not against individual members of the Board.

If you have already filed action in court, I suspect that you have an attorney or at least consulted one. You should check with him.

You made one statement that I am confused on: "We want to impeach then have gotten 51% vote between ballots and petitons"

Typically, the procedure to remove a properly elected director would be for the membership to solicit a petition to call a special meeting. The number of signatures required would be in your governing documents and/or State law. Sometimes the members calling for the recall must foot the bill for proper notice to the membership and any other meeting costs. Remember that any quorum requirement would apply at the special meeting as well. At the meeting, a discussion would be held and ballots issues and counted. If there are enough ballots cast for removal, then at the same meeting new directors will have to be voted in. FAILURE TO VOTE NEW MEMBERS INTO OFFICE CAN RESULT IN THE SAME PEOPLE BEING PLACED BACK ONTO THE BOARD BY APPOINTMENT.

If you have not had this meeting, you have not had a recall election. Submitting petitions and/or ballots that might not have followed proper procedures will legally get you nothing. It might send a clear message that the membership is upset but it doesn't "force" anyone to step down.

Did you actually have the meeting?

Tim
SusanW1 (Michigan)
Posts: 5,202
Posted:
Members don't "impeach" boards. They recall or replace them.

Your documents should outline how to call a meeting for the purposse of recalling the present board and holding an election for a new board.

Let them try to get a lawyer.

The Members have the ultimate power. They can dump this entire board, if the votes are there.

But do this right. "If you attack the Queen, make sure she is dead."

SusanW1 (Michigan)
Posts: 5,202
Posted:
You can censure members, that would justify a recall.
RogerB (Colorado)
Posts: 5,067
Posted:
Lynne, follow your Bylaws to remove Board members. You do not impeach and you do not need to go to court to remove them. Your Bylaw probably allow the following:
1) getting sufficient signatures on a petition to hold a special members meeting;
2) the petition should state the exact and only purposes of the meeting which are to consider the removal of each member of the Board of Directors and for those Directors removed to elect new Directors to complete their term;
3) the petition can include that the members meeting shall be held within xx days and if the Board fails to call the meeting the petition calls the meeting to be held on SPECIFIC DATE (otherwise the Board can stall);
4) if a notice of the meeting does not go out from the Board the petitioners need to call the meeting;
5) at the meeting make a motion for someone other than a Board member to chair the meeting;
6) allow each Board member the chance to speak before taking a secret ballot vote;
7) for any Board members removed there will need to be nomination and voting on replacement Board members;
8) if the term for Board members removed are different you may need to hold more than one election to fill terms for each year of remaining term as a Board member; and
9) A petitioner's attorney is needed, at their expense, if the petitioners are uncertain as to the exact procedures which must be followed. And a petitioner's attorney may be needed at the meeting if the current Board members are going to fight and have the HOA's attorney present.

LynneV1 (South Carolina)
Posts: 211
Posted:
I am representing the community with a few neighbors backing me up. We do not have a lawyer. We cannot afford one. I thank you for your help, advice and information.

I just sent out certified letters to the 3 board members and the management company. I gave them 5 days to reply, step down or face impeachment as we have 50-51% vote in. I said I will file with the summary court magistrate.

My typing was very poor:
"We want to impeach them and have gotten barely 51% vote between ballots and petitons" This is a majority with 98% of the votes being to remove them and 2% voting for them to stay.

They refused to accept the ballots or allow us the clubhouse for the special meeting. So I sent the letters out Friday 12/10 and am asking to set up a special meeting for Jan 5th 2011.
I was told yesterday that they now plan to sue me and every one who signed a petition.....For what I do not know?
They posted it on a community bulletin board blog. I cannot reply on the bulletin board as they control it.
I feel we have freedom of speech , freedom to assemble and a democracy where we can vote. They can be removed 'for cause' or 'for no cause'.
Can I be sued as they are hiring a lawyer in next few weeks? LynneV
LynneV1 (South Carolina)
Posts: 211
Posted:
Thanks for your input - what do you mean by "You do not impeach and you do not need to go to court to remove them."

I have gathered the signatures on petitions by going door to door with neighbors, and mailed ballots for out of state h/o. I have been accused of soliciting! They wanted to arrest me for that. I said that the no soliciting sign is not a valid law in our society.
I feel the court would settle this for us but would love to have a meeting and resolve this issue.
They held a board meeting last week and since sept have not read minutes outloud will not let us ask questions on the record and will not let h/o voice opinions at all.
lynnev
JohnO6 (Georgia)
Posts: 424
Posted:
Lynne - You've touched a "hot button" of mine, so please accept this reply in the manner in which I intend it - to be helpful, but also calling you to task at the same time.

My "hot button" is that folks come onto this discussion board and ask questions or ask for advice for which they already have the answer IF they would only read and understand their governing documents.

As others have already responded, the process to remove Board members is undoubtledly contained in your associaton's by-laws.

Read them.

I understand that you've said your appreciative of the advice received here, but without the members here seeing your associaton's documents, we're just putting forth educated guesses.

So, you would be well advised to do your homework first, before taking the actions you've already done.

Just sayin . . . . . .
JonD1
Posts: 2,350
Posted:
Lynne:

Seems to me you are throwing out a lot of numbers which to me make little sense.

How many units do you have?
How many units support your cause?
How many support doing nothing?

How many people signed your petition?
What did your petition ask for or direct?

You sent out ballots to those living off the property for what purpose?

To be clear. You more then likely do not impeach a Board. Nor do you decide how a Board should and can be removed.

You can more than likely present a petition calling for a special meeting. This petition MUST abide by the requirements set forth in your documents. Those documents you seem not to have read.

If you request a special meeting you do NOT set the schedule for this meeting the current Board does. As per your documents.

And I would guess the HOA can decide who is given the use of common property.

This has nothing to do with free speech.

The laws the govern your property are the By-Laws and CCRs not what you determine to be right or just.

Yes the Board can threaten you with a lawsuit and can in fact sue you. This might be a response you should have expected when you began this process.

I would guess most Boards and or MCs don't simply pack their bags and move on when they are asked to in a letter from one, a few or more property owners. I would guess like amny properties you now have a fight on your hands.

Hopefully, you and those supporting your efforts are willing to be in this for the long haul. As was once said "you will need to get dirty on this one."

LynneV1 (South Carolina)
Posts: 211
Posted:
to JonD1 - wow you sid a mouthful

How many units do you have? 230 houses + 1 empty lot
How many units support your cause? We have 111 names on our petitons
of them maybe 4 support keeping the board and 107 want them out
How many support doing nothing? do not know - in any election we only get about 115 replies or less.

How many people signed your petition?
What did your petition ask for or direct? removal of 4 members of the board (names were given) for making uninformed decisions at a mediation where we lost 50% ownership in our pool and for spending $9000 on a pond which we did not own without the consent of our h/o - but they thought we did own it and that is about 10% of our budget!
The builder still owned it and it had not been deeded to us yet.

You sent out ballots to those living off the property for what purpose? After getting 60 petitions signed in the community I was told I needed a ballot form. It says basically the same thing but we had named the 4 people to replace the removed board members on it.

Why can they sue us when we can impeach for cause or no cause according to the by-laws.

One point I would like to make in Sept there were 3 open spots on the board 7 people ran - but the most votes received by any member being elected was 57 and it went down from there to say 49 votes.
We have about 107 that want them out!
LynneV1 (South Carolina)
Posts: 211
Posted:
sorry I had a mild stroke and my typing stinks.
RogerB (Colorado)
Posts: 5,067
Posted:
Quote:
Posted By LynneV1 on 12/12/2010 8:28 AM
Thanks for your input - what do you mean by "You do not impeach and you do not need to go to court to remove them." lynnev

I mean you want to remove these Board members rather than Impeach them. To impeach means to charge but that alone will not remove them. To remove these Board members you follow your Bylaws to remove them. You do not need to go to court.
LynneV1 (South Carolina)
Posts: 211
Posted:
THANK YOU FOR CLARIFYING - IF WE HAVE A SPECIAL MEETING TO REMOVE THE BOARD AND THE BOARD MEMBERS DO NOT SHOW UP- AFTER BEING INVITED- CAN WE STILL COUNT THE BALLOTS AND REMOVE THEM -
ONLY ABOUT BETWEEN 5 - 20 PEOPLE SHOW UP AT ANY MEETING WHICH IS WHY WE GOT BALLOTS AND PETITIONS.
AND WHAT ARE THE CHANCES THAT THEY CAN 'SUE' ME FOR ATTEMPTING TO REMOVE THEM ? WHAT WOULD THEY CHARGE ME WITH. I AM NOT SLANDERING THEM - I DID STATE WE LOST CONFIDENCE IN THEM. LYNNEV1
JonD1
Posts: 2,350
Posted:

Lynne:

Your documents should tell you what percentage of owners are needed to request a special meeting. 50% or more in some cases.

If your documents require 50% ( I would guess that number might be higher)with 230 units that requires 115 signatures on your petition.

That would require you to have 115 signatures on a petition IMO not a combination of petition signatures and ballots. Ballots are for taking votes NOT requesting a special meeting.

You must follow the procedure set forth in your documents to the letter.

IMO your ballots naming those to replace the Board members you wish to remove would not be valid as they merely suggest their wishes not actual vote put before the property owners.

Lynne I would doubt you have the ability to impeach the Board members. Remove them YES impeach them NO. People can file suit against you for many reasons or for no reasons at all. Lawyers will file suit as long as they are paid. The Board has your property's money to find your actions if you are sued you then have to foot the bill to defend yourself. I would think long and hard as to whether you wish to answer a lawsuit in court. In many cases win or lose YOU foot the bill for representation.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Lynne,

The correct use of terminology is very important when you get into the legal aspects of an Association. Little things like using the word "may" instead of the word "shall" makes a huge difference. This is why Roger and some others are stressing the terminology.

Let me see if I understand what you are facing:

1. The Board of Directors spent money they didn't have to and gave an interest in property away in some sort of mitigation process.

2. The membership is upset enough with those actions that they wish to replace the Board or at least some of the members on the board.

3) You, individually or as a member of a group, has led the process in recalling the board.

4) The Board of directors are probably doing what they legally have to but no more which is making it very difficult for this to happen. Some of the things that they are doing include:

a) Only providing a full membership list vs. a listing of only those who are current in assessments - this forces you to gather more then enough signatures/votes as some may or may not be disqualified.

b) The Directors in question refuse to step down on their own

c) The Board has chosen to fight in court which would also allow them to pass the legal costs on to the membership (which is legal).

d) The Board accepted the petition and informed you that you needed to send out ballots for the actual vote to happen.

5) You have done the following (and this is what we don't completely understand fully):

a) Solicited a petition -

What exactly did the petition say (leaving out the names)?

Possible issues (based on your posts):

If you used the word impeached vs. the word recall in the petition - As others have said this would not accomplish your goal because the word impeach does not mean remove and/or replace.

Typically, members can call for a special meeting using a petition - if this is what your governing documents require - after having enough signatures you will need to hold a meeting where a vote will take place.

SUGGESTION: Check your governing documents to see how calling the special meeting is worded. If it says a meeting can be called with x% of the membership - then being current won't apply to the petition calling for a meeting. If it says a meeting can be called with x% of the members in good standing or class A members - then being current in assessments will be an issue.

b) You sent out ballots -

What exactly did the ballots say?
same comments under petition apply

Did you send ballots to everyone or just non-resident members?

Signing a petition is not the same as voting. The petition is supporting the cause/effort and the vote is the actual count and voice of the membership.

c) You sent certified letters to the 3 board members and the management company saying step down or face impeachment as we have 50-51% vote in.

Were the polls closed?

Were the ballots turned over to the Board or someone to verify the vote?

Were the steps outlined in your governing documents followed exactly?

Based on your posting, it sounds like you acted prematurely in sending the letter. If you did not follow the procedures outlined in your governing documents and provided the ballots (not petition signatures as those mean nothing in the actual vote) for inspection then all your letter did was effectively request that the members step down or you would turn in the votes and force them out.

d) You threatened legal action " I said I will file with the summary court magistrate. ".

This act actually placed you in a different category with the Association. Since your threatened legal action, the Board must act as if legal action is pending. This typically also means that they no longer have to speak with you but refer you to the Attorney. Additionally, they may be able to withhold access to Association records until the legal action is resolved or they are ordered by the court to provide them.

Since I, and others on here, do not have access to your Associations Governing Documents, I urge you to study and understand the procedures for recalling. If you did not follow all of them properly - stop any legal action and start the process over properly.

Typically, the process for a recall is:

1. Petition for a special meeting
2. Send notice of the meeting, proxy forms and/or ballots (depending on what is allowed in your State) to the membership.
3. Hold the meeting
4. Pass out the ballots to Class A members only
5. Collect and count the ballots (better to have an independent person do this)
6. Announce the results

From your postings, it sounds like you may have missed some steps and possibly even used wrong terminology (which may change the intent of what you are trying to accomplish). Please, Please, Please verify if you did follow all of the steps required.

I also offer this word of warning: If you go to court and lose it is possible that you will also have to pay all legal costs (yours and the Associations). If you go to court and win, you will be required to pay your share of the Associations legal bills.

I hope this helps,

Tim
LynneV1 (South Carolina)
Posts: 211
Posted:
OMG - I AM IN OVER MY HEAD. SOME PETITIONS SAID BY SIGNING BELOW I VOTE TO IMPEACH. SOME STATED 'REMOVE'.
5 OF US RAN AROUND THE NEIGHBORHOOD - 230 HOMES WITH DIFFERENT PETITIONS.
WE COULD NOT GET A LIST OF HOMEOWNERS NAMES /ADDRESS AT ALL FROM MANAGEMENT COMPANY- THE BOARD SAID NO!
SO WE KNOCKED ON DOORS. WE DID MANAGE A LIST OF OUT OF STATE H/O ON THE SLY. THEN WE TYPED A 2 PAGE EXPLANTION AND GAVE 3 CHOICES: REMOVE / KEEP/OR GIVE PROXY.
WE SPENT OVER $200 ON MAIL AND POSTAGE.
I THOUGHT THAT BY SENDING A CERTIFIED LETTER OUT MAYBE 2 MORE MEMBERS WOULD RESIGN - THEY WERE CONTEMPLATING IT ANY WAY....

THEY NEVER TOOK OUR PAPERWORK WE HAVE IT - IT IS A BIT MISWORDED - O'KAY A LOT MISWORDED!!

EVERYONE ON HERE HAS BEEN A GREAT SOURCE OF INFO.YOU GUYS ARE UNBELIEVABLE.

BTW - OUR BY-LAWS SAY WE NEED 10 % PETITION TO CALL A SPECIAL MEETING- EVEN IF THE OTHER COMMUNITY LETS US USE "THEIR" CLUBHOUSE BECAUSE THE MEDIATION ALLOWS US 12 VISITS A YEAR TO OUR FORMER CLUBHOUSE....AND A CHRISTMAS PARTY.
ONLY 20 WILL SHOW UP.
THE PROBLEM IS THE BUILDER MISFILED THE DEED W/O OUR NAME ON IT AND OFFERED TO RESCIND IT AND PAY ALL LEGAL COSTS. OUR BOARD WENT TO MEDIATION FOR 8 HRS AND DID NOT KNOW THEY COULD LEAVE. THEY
GAVE THEM THE POOL CLUBHOUSE AND AGREED FOR US TO PAY $270/YR TO SWIM. WE USED TO PAY 70% OF THE BILLS AND IT WAS ONLY $60/YR.PER HH.
OH AND WE GOT NOTHING AND THE OTHER COMMUNITY GOT $18,000 CASH FOR IMPROVEMENT TO THE 4 YR OLD $MILLION PROPERTY!

NOW THEY ARE PLANNING TO SUE ME FOR PETITIONING TO REMOVE THEM, AND A H/O WITH AN IVORY SHED (MUST BE WHITE), BUT NOT PURSUE THE OBVIOUS - OVERTURNING THE MEDIATION - WHICH I FEEL COULD BE DONE BASED ON UNDUE ENRICHMENT.
I AM NOT A LAWYER BUT FELT I COULD HELP THE COMMUNITY BY THIS PETITION. IF EVEN 50 SIGNED I THOUGHT THEY WOULD RESIGN - DUE TO THEIR STUPIDITY.
ANY HOW ENOUGH OF MY PROBLEMS....THANKS FOR THE ADVICE! MUCH FOOD FOR THOUGHT. THANK YOU - LYNNEV1
TimB4 (Tennessee)
Posts: 21,059
Posted:
Lynne,

I would suggest that you send a letter to the board and explain that you have decided that you will not pursue legal action on this matter. This will probably have the Board back off.

If the board is only threatening legal action due to you soliciting signatures for a petition from members, I do not believe that soliciting petitions is the same as no solicitations. This might even be considered a violation of free speech. As I am not an attorney, you might want to consult with an attorney on that if you are concerned. I would also offer the suggestion that if the Board allows girl scouts to sell cookies that they are obviously selectively enforcing the no solication rule on you - this would be a mark against them in any legal issue. However, I wouldn't advertise this, just keep it in your back pocket to use if you need it. - IF the board is threatening legal action for anything else, gather copies of anything you passed out or sent and seek legal advise.

If your person with the shed followed the procedures outlined in your Association and received approval to install it then she should be fine. She will just need to produce a copy of that approval. Worst case, she should paint it white to comply with the Boards wishes.

Lynne, your intentions were good. I do think you didn't prepare as well as you should have as being the only issue here. Your options, as I see it, are:

1. Continue with the process knowing what you know and hope for the best.

2. Start the process over. Write down what procedures are required (based on your governing documents), have someone verify them then proceed from step 1.

3. Stop everything and deal with it at your annual meeting when you will elect new directors.

Hope this helps,

Tim
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By LynneV1 on 12/12/2010 8:27 PM
OMG -

NOW THEY ARE PLANNING TO SUE ME FOR PETITIONING TO REMOVE THEM, AND A H/O WITH AN IVORY SHED (MUST BE WHITE), BUT NOT PURSUE THE OBVIOUS - OVERTURNING THE MEDIATION - WHICH I FEEL COULD BE DONE BASED ON UNDUE ENRICHMENT.

Not knowing any of the details, I doubt if the mediation agreement could be overturned. The Board would have had the legal authority to deal with common property as they saw fit unless your governing documents required a membership vote. The key word being "required".

Bad decisions are just that bad decisions and typically not an excuse by that fact alone to overturn a legal agreement.

Tim
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By TimB4 on 12/12/2010 8:58 PM

Lynne, your intentions were good. I do think you didn't prepare as well as you should have as being the only issue here. Your options, as I see it, are:

1. Continue with the process knowing what you know and hope for the best.

2. Start the process over. Write down what procedures are required (based on your governing documents), have someone verify them then proceed from step 1.

3. Stop everything and deal with it at your annual meeting when you will elect new directors.

Forgot to add that I would recommend you do step 2 or 3

Tim
LynneV1 (South Carolina)
Posts: 211
Posted:
I read every word and I wish 1) I knew of this website early on and 2) that my bylaws were more specific.
My letter stated the foloowing:
"Our covenants and restrictions state that upon the expiration of the Declarant’s right (BuilderX XXX) to appoint and remove the directors and officers of the POA, such right shall automatically pass to the Owners. (page 11 of 35)Our by-laws state a majority of homeowners can impeach the entire Board of Directors ‘for cause’ or with ‘no’ cause.

The State Laws of South Carolina says that the board of directors can be impeached by the same number of votes needed to elect them. Not one of you received more than 55 votes, at the Sept 2010 election. We have 110 signatures and ballots."

The by-laws used the word impeach - so I did also. I read this morning on the community bulletin board the board will be seeking immediate legal advice based on my letter.

It is not what you know, but what you don't know that causes the problems. I am meeting with my committee and suggesting the special meeting be held in January - and then backing off.

Do you think I could wait a few days before e-mailing them that I will not seek legal action until after such meeting. Or, should I e-mail them today! Maybe they will blink!
This had been and expense and a headache! I do not want it to excalate.
LynneV1 (South Carolina)
Posts: 211
Posted:
OOOPPS -my lousy typing again...Maybe they will blink first!
This has been an expense on my part only and a headache! I do not want it to escalate into a lawsuit against me. I am asking for a special meeting next month a hope the total petitions and ballots together will maybe sway one more board member to drop out... Our next election is in September. I will let the others pursue this and take your advice of dropping any legal action. I thought I could sue the individual members and they would have to pay for the legal advice on their own. I am not letting them get a free lawyer at my expense and me stand alone in court!
Thanks to all for your help.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Lynne,

Is the developer still in control of your board?

If your Associations web site has copies of the bylaws on it, are you willing to share the address so we can read the sections ourselves?

Quote:
Posted By LynneV1 on 12/13/2010 7:33 AM

Our by-laws state a majority of homeowners can impeach the entire Board of Directors ‘for cause’ or with ‘no’ cause.

The State Laws of South Carolina says that the board of directors can be impeached by the same number of votes needed to elect them. Not one of you received more than 55 votes, at the Sept 2010 election. We have 110 signatures and ballots."

Your State law isn't intended to say if a Director received 2 votes to get elected then only 3 votes are required to remove. It means that if a simple majority of the votes is needed to elect then a simple majority at a recall election is needed to be removed. A simple majority at one election might have been 5 if only a few ballots were cast but could be 200 if more more ballots are cast at the recall meeting. Since your Bylaws state a majority is needed then a majority of the votes cast will be the amount.

Based on your postings you need to look at the bylaws again and see what the exact wording says for removal (impeachment). This is where the words will mean different things:

A majority of the membership = 50% plus 1 of the entire membership
A majority of the membership entitled to vote = 50% plus 1 of the members in good standing
A majority of the votes cast = 50% plus 1 of the votes

As you can see, depending on how the bylaws are written, drastically different numbers would be needed.

What are the notice requirements for meetings (15 days, 30 days, etc.)? Make sure that you meet that notice requirement or the meeting and any vote won't be valid.

What are the quorum requirements for the meeting (x% of membership or class A members, etc.)?
Do people have to be there in person or can they be there by proxy?

Did you have enough signatures to call a meeting? If you did, those signatures should be copied and the originals turned over to the Board requesting that a meeting be called on x day for the purpose of recalling Board members. You can not just call the meeting on your own without the Board having the opportunity to verify the signatures. Otherwise, the meeting might not be valid.

As for notifying the Board about the legal action - I would suggest the following:

1. Request a meeting with the Board (your committee and the Board). Explain in the request that you do not want to cause unnecessary expenses for the Association, that you wish to have the issues addressed and that you believe that this issue might be resolved with a meeting.

2. Expect that the Board will have the Association lawyer there. If they are - make a motion that the meeting be considered an open meeting (so the minutes can be available to the membership) and remember that the lawyer is there to represent the Board and Association not you or individual members.

3. Between now and the meeting - research, research, research. Understand what you are reading, ask questions and you might want to consult with an attorney who is knowledgeable in corporate law (to make sure that you are on the right track).

You also need to decide what you want your final goal to be. If it's getting ownership in the pool back - it is possible that this goal will be impossible to have. If it's to send a message, what is the message? You will need to go into the meeting knowing the answer to this question so you know where you can compromise and where you need to stand firm.

It should be noted that I am not an attorney and I do not work in the legal profession. I, and the others on this forum, are offering advise based on the information contained in your postings, research, personal experiences and, hopefully, some common sense. Having different information may result in different advise being offered.

Tim

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