Colorado HOA Rules

Started by LindaF4 • 11 replies • 3528 views

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LindaF4 (Colorado)
Posts: 5

Posted:

I need some advice, we got 205 petitions that had proxy in the wording to get rid of our present board memebers, they were not dated, so are we out of luck or how do we fix this?

Here is the wording
I hereby putforth a vote of "no confidence" in the present board of directors representing te Cottonwood Villas, including any and all members presetly serving on the board of directors.
I hereby offer this proxy, as a vote f a new board of directrs, individuals how own at least one unit in Cottonwood Villas, who vow to decrease the present maintanace fees by 50% , to serve on a new board of directors representing the cottonwood Villas.

They say the proxys are invald and we can't use them his took alot of time andeffort from only two people what can we do to fix this?

GlenL (Ohio)
Posts: 5,491

Posted:

Linda IMHO I wouldn't accept the proxies either. A date is required because say you gave me your proxy to vote on something and Donna also produced a proxy by you allowing her to vote in your place; the date is what determines which is the valid proxy. There are also some other things that are required (generally)an expiration date of the proxy and the purpose of the proxy and it looks like you only have one of the requirements, the purpose.

Depending on your documents and Colorado law this is not the correct way to recall a Board. First you would need to gather the required percentage of homeowners to call for a Special Meeting for the purpose of recalling the Board, either all or specific members. It is at the special meeting that the vote would be held and the proxies would come into play. This is predicated on whether or not your CC&R's allow proxies.

Studies show that 5 out of 4 people have problems with fractions

LindaF4 (Colorado)
Posts: 5

Posted:

We did ask to call a special meeting and the management co refusd to let us. We are going to file an emergency injunction and let the judge decide we have alot of bad on them!

RogerB (Colorado)
Posts: 5,067

Posted:

Linda, read your Bylaws and follow them. kA special meeting can be called by a signed petition of xx% of the members to consider the removal of all (or specified) member of the Board of Directors and for those Directors removed to hold an election to replace them for the remainder of their term. The petition may also specify the date, time and location of the meeting so that the current Board does not put off calling the meeting. Have candidates ready to serve and be prepared to request a chair person to replace the President immediately after the meeting is called to order. Going to court is not the best way to approach this problem IMO.

GlenL (Ohio)
Posts: 5,491

Posted:

Linda, have you even read your CC&R's? Somewhere in there you should find a section on how to call a special meeting, usually it can be called by the president, two Board members or by a certain percentage of the homeowners.

Below are the relevant statutes:

7-127-102. Special meeting.

(1) A nonprofit corporation shall hold a special meeting of its members:
(a) On call of its board of directors or the person or persons authorized by the bylaws or resolution of the board of directors to call such a meeting; or
(b) Unless otherwise provided by the bylaws, if the nonprofit corporation receives one or more written demands for the meeting, stating the purpose or purposes for which it is to be held, signed and dated by members holding at least ten percent of all the votes entitled pursuant to the bylaws to be cast on any issue proposed to be considered at the meeting.

(2) If not otherwise fixed under section 7-127-103 or 7-127-106, the record date for determining the members entitled to demand a special meeting pursuant to paragraph (b) of subsection (1) of this section is the date of the earliest of any of the demands pursuant to which the meeting is called, or the date that is sixty days before the date the first of such demands is received by the nonprofit corporation, whichever is later.

(3) If a notice for a special meeting demanded pursuant to paragraph (b) of subsection (1) of this section is not given pursuant to section 7-127-104 within thirty days after the date the written demand or demands are delivered to a corporate officer, regardless of the requirements of subsection (4) of this section, a person signing the demand or demands may set the time and place of the meeting and give notice pursuant to section 7-127-104.

(4) Special meetings of the members may be held in or out of this state at the place stated in or fixed in accordance with the bylaws, or, if not so stated or fixed, at a place stated or fixed in accordance with a resolution of the board of directors.

If no place is so stated or fixed, special meetings shall be held at the nonprofit corporation's principal office.

(5) Unless otherwise provided by the bylaws, only business within the purpose or purposes described in the notice of the meeting required by section 7-127-104 (3) may be conducted at a special meeting of the members.

7-127-103. Court-ordered meeting.

(1) The holding of a meeting of the members may be summarily ordered by the district court of the county in this state where the nonprofit corporation's principal office is located or, if the nonprofit corporation has no principal office in this state, by the district court of the county in which its registered office is located or, if the nonprofit corporation has no registered office, by the district court for the city and county of Denver:
(a) On application of any voting member entitled to participate in an annual meeting if an annual meeting was required to be held and was not held within the earlier of six months after the close of the nonprofit corporation's most recently ended fiscal year or fifteen months after its last annual meeting; or
(b) On application of any person who participated in a call of or demand for a special meeting effective under section 7-127-102 (1), if:
(I) Notice of the special meeting was not given within thirty days after the date of the call or the date the last of the demands necessary to require the calling of the meeting was received by the nonprofit corporation pursuant to section 7-127-102 (1) (b), as the case may be; or
(II) The special meeting was not held in accordance with the notice.

(2) The court may fix the time and place of the meeting, determine the members entitled to participate in the meeting, specify a record date for determining members entitled to notice of and to vote at the meeting, prescribe the form and content of the notice of the meeting, fix the quorum required for specific matters to be considered at the meeting or direct that the votes represented at the meeting constitute a quorum for action on those matters, and enter other orders necessary or appropriate to accomplish the holding of the meeting.

Studies show that 5 out of 4 people have problems with fractions

LindaF4 (Colorado)
Posts: 5

Posted:

Yes we read our bylaws out loud at the meeting before we did it and our bylaws STATE THAT we can do it at any meeting and that we don't have to have a special meeting all we need is proof that over 1/3 of the homeowers want them gone!

LindaF4 (Colorado)
Posts: 5

Posted:

We read the bylaws in front of them and they said that their attorneys had to look them over and their attorneys ever looked at our bylaws, they said that they looked like proxy to remove the board and that they were invalid because they were all signed but not date. They ignored us and put a bunch of new people on the board without a vote from the board members at the next meeting. Their attorneys have been running residence off and making them get rid of their dogs that are over 10 lbs. This is not in the original Covenants and was never changed by a vote of 51% of the homeowners. They are so crooked and we will win in the end. This is a older community and not under alot of the new laws for HOA's they are digging a deep hole............there is so much more. The management company is under investigation of the Real estate commission............

JanetB2 (Colorado)
Posts: 4,219

Posted:

The statutes for Colorado Common Interest Ownership Act can be found here:
http://www.michie.com/colorado/lpExt.dll/cocode/1/632ce/64f69/64f6b/65542?fn=document-frame.htm&f=templates&2.0#

In Colorado a proxy appointment is valid for eleven months unless a different period is expressly provided in the appointment form. See the bold in section 7-127-703 Proxies as noted below.

Applicability of these statutes to pre-existing common interest communities is:

38-33.3-117. Applicability to preexisting common interest communities.

(j) 38-33.3-310 (1) and (2);

38-33.3-310. Voting - proxies.

(1) (a) If only one of the multiple owners of a unit is present at a meeting of the association, such owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the owners, unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.

(b) (I) (A) Votes for contested positions on the executive board shall be taken by secret ballot. This sub-subparagraph (A) shall not apply to an association whose governing documents provide for election of positions on the executive board by delegates on behalf of the unit owners.

(B) At the discretion of the board or upon the request of twenty percent of the unit owners who are present at the meeting or represented by proxy, if a quorum has been achieved, a vote on any matter affecting the common interest community on which all unit owners are entitled to vote shall be by secret ballot.

(C) Ballots shall be counted by a neutral third party or by a committee of volunteers. Such volunteers shall be unit owners who are selected or appointed at an open meeting, in a fair manner, by the chair of the board or another person presiding during that portion of the meeting. The volunteers shall not be board members and, in the case of a contested election for a board position, shall not be candidates.

(D) The results of a vote taken by secret ballot shall be reported without reference to the names, addresses, or other identifying information of unit owners participating in such vote.

(II) Notwithstanding section 38-33.3-117 (1.5) (j), this paragraph (b) shall not apply to an association that includes time-share units, as defined in section 38-33-110 (7).

(2) (a) Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. A proxy shall not be valid if obtained through fraud or misrepresentation. Unless otherwise provided in the declaration, bylaws, or rules of the association, appointment of proxies may be made substantially as provided in section 7-127-203, C.R.S.

(b) If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates eleven months after its date, unless it provides otherwise.

(c) The association is entitled to reject a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the unit owner.

(d) The association and its officer or agent who accepts or rejects a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation in good faith and in accordance with the standards of this section are not liable in damages for the consequences of the acceptance or rejection.

(e) Any action of the association based on the acceptance or rejection of a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation under this section is valid unless a court of competent jurisdiction determines otherwise.

(3) (a) If the declaration requires that votes on specified matters affecting the common interest community be cast by lessees rather than unit owners of leased units:

(I) The provisions of subsections (1) and (2) of this section apply to lessees as if they were unit owners;

(II) Unit owners who have leased their units to other persons may not cast votes on those specified matters; and

(III) Lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners.

(b) Unit owners must also be given notice, in the manner provided in section 38-33.3-308, of all meetings at which lessees are entitled to vote.

(4) No votes allocated to a unit owned by the association may be cast.

Source: L. 91: Entire article added, p. 1745, § 1, effective July 1, 1992. L. 2005: (1) and (2) amended, p. 1385, § 15, effective January 1, 2006. L. 2006: (1)(b)(I) amended, p. 1223, § 11, effective May 26.

Here is the information regarding Proxy’s:

7-127-203. Proxies.

(1) Unless otherwise provided by the bylaws, a member entitled to vote may vote or otherwise act in person or by proxy.

(2) Without limiting the manner in which a member may appoint a proxy to vote or otherwise act for the member, the following shall constitute valid means of such appointment:

(a) A member may appoint a proxy by signing an appointment form, either personally or by the member's attorney-in-fact.

(b) A member may appoint a proxy by transmitting or authorizing the transmission of a telegram, teletype, or other electronic transmission providing a written statement of the appointment to the proxy, to a proxy solicitor, proxy support service organization, or other person duly authorized by the proxy to receive appointments as agent for the proxy or to the nonprofit corporation; except that the transmitted appointment shall set forth or be transmitted with written evidence from which it can be determined that the member transmitted or authorized the transmission of the appointment.

(3) An appointment of a proxy is effective against the nonprofit corporation when received by the nonprofit corporation, including receipt by the nonprofit corporation of an appointment transmitted pursuant to paragraph (b) of subsection (2) of this section. An appointment is valid for eleven months unless a different period is expressly provided in the appointment form.

(4) Any complete copy, including an electronically transmitted facsimile, of an appointment of a proxy may be substituted for or used in lieu of the original appointment for any purpose for which the original appointment could be used.

(5) An appointment of a proxy is revocable by the member.

(6) Appointment of a proxy is revoked by the person appointing the proxy:

(a) Attending any meeting and voting in person; or

(b) Signing and delivering to the secretary or other officer or agent authorized to tabulate proxy votes either a writing stating that the appointment of the proxy is revoked or a subsequent appointment form.

(7) The death or incapacity of the member appointing a proxy does not affect the right of the nonprofit corporation to accept the proxy's authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises the proxy's authority under the appointment.

(8) Subject to section 7-127-204 and to any express limitation on the proxy's authority appearing on the appointment form, a nonprofit corporation is entitled to accept the proxy's vote or other action as that of the member making the appointment.

Source: L. 97: Entire article added, p. 683, § 3, effective July 1, 1998.

7-127-204. Nonprofit corporation's acceptance of votes.

(1) If the name signed on a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation corresponds to the name of a member, the nonprofit corporation, if acting in good faith, is entitled to accept the vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation and to give it effect as the act of the member.

(2) If the name signed on a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation does not correspond to the name of a member, the nonprofit corporation, if acting in good faith, is nevertheless entitled to accept the vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation and to give it effect as the act of the member if:

(a) The member is an entity and the name signed purports to be that of an officer or agent of the entity;

(b) The name signed purports to be that of an administrator, executor, guardian, or conservator representing the member and, if the nonprofit corporation requests, evidence of fiduciary status acceptable to the nonprofit corporation has been presented with respect to the vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation;

(c) The name signed purports to be that of a receiver or trustee in bankruptcy of the member and, if the nonprofit corporation requests, evidence of this status acceptable to the nonprofit corporation has been presented with respect to the vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation;

(d) The name signed purports to be that of a pledgee, beneficial owner, or attorney-in-fact of the member and, if the nonprofit corporation requests, evidence acceptable to the nonprofit corporation of the signatory's authority to sign for the member has been presented with respect to the vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation;

(e) Two or more persons are the member as cotenants or fiduciaries and the name signed purports to be the name of at least one of the cotenants or fiduciaries and the person signing appears to be acting on behalf of all the cotenants or fiduciaries; or

(f) The acceptance of the vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation is otherwise proper under rules established by the nonprofit corporation that are not inconsistent with the provisions of this subsection (2).

(3) The nonprofit corporation is entitled to reject a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory's authority to sign for the member.

(4) The nonprofit corporation and its officer or agent who accepts or rejects a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation in good faith and in accordance with the standards of this section are not liable in damages for the consequences of the acceptance or rejection.

(5) Corporate action based on the acceptance or rejection of a vote, consent, written ballot, waiver, proxy appointment, or proxy appointment revocation under this section is valid unless a court of competent jurisdiction determines otherwise.

Source: L. 97: Entire article added, p. 684, § 3, effective July 1, 1998.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Linda:

Something was nagging at me and after re-reading your initial post again I just want to clarify:

Did all of the ballots state "Proxy" even if it was from the owner of the property?

LindaF4 (Colorado)
Posts: 5

Posted:

Yes it state proxy but each one was signed by the owner only and not us.
thanks,
Linda

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Linda:

I am not an attorney, but if you are asking for free advice from others familiar with HOA’s here is what I suggest based on the below referenced statutes:

1. Check your by-laws and make sure if the board can be removed only for cause. If it does not state anything about only being able to remove for cause, then they can be removed without cause by the voting HOA members as noted in statute below.

2. If they can be removed by voting members: Get a petition signed by 20 percent of the homeowners calling for a special meeting to remove the directors (unless your By-Laws require a less amount) stating something to the effect:

We the undersigned homeowners having "no confidence" in the present board of directors representing Cottonwood Villas hereby are calling a special meeting of the unit owners as allowed pursuant to CCIOA 38-33.3-308(1) requiring twenty percent of homeowners votes in the association to call said special meeting. The special meeting shall be called also pursuant to this section within not less than ten nor more than fifty days after submission of this petition to allow proper notification to unit owners regarding the date and time of the special meeting. The special meeting shall be for the purpose of removing the current Board of Directors pursuant to the Colorado State Statute for Non-Profit Corporations 7-128-108.

38-33.3-117. Applicability to preexisting common interest communities.

(i) 38-33.3-308 (1), (2) (b), (2.5), and (4.5);

38-33.3-308. Meetings.

(1) Meetings of the unit owners, as the members of the association, shall be held at least once each year. Special meetings of the unit owners may be called by the president, by a majority of the executive board, or by unit owners having twenty percent, or any lower percentage specified in the bylaws, of the votes in the association. Not less than ten nor more than fifty days in advance of any meeting of the unit owners, the secretary or other officer specified in the bylaws shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting of the unit owners shall be physically posted in a conspicuous place, to the extent that such posting is feasible and practicable, in addition to any electronic posting or electronic mail notices that may be given pursuant to paragraph (b) of subsection (2) of this section. The notice shall state the time and place of the meeting and the items on the agenda, including the general nature of any proposed amendment to the declaration or bylaws, any budget changes, and any proposal to remove an officer or member of the executive board.

7-128-108. Removal of directors.

(1) Directors elected by voting members or directors may be removed as follows:

(a) The voting members may remove one or more directors elected by them with or without cause unless the bylaws provide that directors may be removed only for cause.

(b) If a director is elected by a voting group, only that voting group may participate in the vote to remove that director.

(c) Subject to section 7-127-208 (3), a director may be removed only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.

(d) A director elected by voting members may be removed by the voting members only at a meeting called for the purpose of removing that director, and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal of the director.

(e) An entire board of directors may be removed under paragraphs (a) to (d) of this subsection (1).

(f) A director elected by the board of directors may be removed with or without cause by the vote of a majority of the directors then in office or such greater number as is stated in the bylaws; except that a director elected by the board of directors to fill the vacancy of a director elected by the voting members may be removed without cause by the voting members, but not the board of directors.

(g) (Deleted by amendment, L. 2000, p. 983, § 83, effective July 1, 2000.)

(2) Unless otherwise provided in the bylaws:
(
a) An appointed director may be removed without cause by the person appointing the director;

(b) The person removing the director shall do so by giving written notice of the removal to the director and to the nonprofit corporation; and

(c) A removal is effective when the notice is received by both the director to be removed and the nonprofit corporation unless the notice states a later effective date.

(3) A designated director may be removed by an amendment to the bylaws deleting or changing the designation.

(4) Repealed.

Source: L. 97: Entire article added, p. 690, § 3, effective July 1, 1998. L. 2000: (1)(g) amended and (4) added, p. 983, § 83, effective July 1. L. 2002: (4) amended, p. 1855, § 138, effective July 1; (4) amended, p. 1720, § 140, effective October 1. L. 2003: (1)(f) and (2)(c) amended, p. 2341, § 303, effective July 1, 2004. L. 2004: (4) repealed, p. 1511, § 298, effective July 1.

ANNOTATION
Am. Jur.2d. See 18B Am. Jur.2d, Corporations, §§ 1247-1251.
C.J.S. See 19 C.J.S., Corporations, § 539.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Now Linda ... before you do as I suggested above I would ask that you perform one other task first:

To be fair to the current board all bills must be paid. I take it from your posts that everyone is very unhappy with the current "maintenance fees". You and every homeowner is allowed to view the budget for your association, so be sure to review the budget and insure that the fees charged are an amount that covers costs, the HOA has a proper reserve fund, etc.

The current board could be properly doing their job and the HOA finances doing well so replacing the current board will not necessarily lower your fees because of the amount needed to fund the HOA.

PLEASE BE SURE YOU ARE PROCEEDING FOR THE RIGHT REASONS!!!

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