Control from Builder to HOA Board (KS)

Hi Kristalyn:

Welcome to HOAtalk.

Your state has a new set of Statutes if your association contains 12 units or more. Now first thing I recommend is to go to the website noted below and after you click on the first listed section print a copy of the page, at the bottom click next and print that page, etc. until you have printed all of the about 23 pages for the statutes. Put these in a binder along with an extra copy of your governing documents and tabs for the various sections. Thoroughly read through all documents and every time you see the word declarant or developer highlight it in bright orange, this way these sections will stand out.

Kansas Uniform Common Interest Owners Bill of Rights Act

The following are some of the sections which pertain to your question:

Article 46. - KANSAS UNIFORM COMMON INTEREST OWNERS BILL OF RIGHTS ACT

58-4611. Same; association meetings; notice.

(a) An association shall hold a meeting of unit owners annually at a time, date, and place stated in or fixed in accordance with the bylaws.

(b) An association shall hold a special meeting of unit owners to address any matter affecting the common interest community or the association if its president, a majority of the board of directors or unit owners having at least 10%, or any lower percentage specified in the bylaws, of the votes in the association request that the secretary call the meeting. If the association does not notify unit owners of a special meeting within 30 days after the requisite number or percentage of unit owners request the secretary to do so, the requesting members may directly notify all the unit owners of the meeting. Only matters described in the meeting notice required by subsection (c) may be considered at a special meeting.

(c) An association shall notify unit owners of the time, date, and place of each annual and special unit owners meeting not less than 10 days or more than 60 days before the meeting date. Notice may be by any method reasonably calculated to provide notice to the person. The notice for any meeting must state the time, date, and place of the meeting and the items on the agenda, including:

(1) A statement of the general nature of any proposed amendment to the declaration or bylaws;
(2) any budget proposals or changes; and
(3) any proposal to remove an officer or member of the board of directors.

(d) The minimum time to give notice required by subsection (c) may be reduced or waived for a meeting called to deal with an emergency.

(e) Unit owners must be given a reasonable opportunity at any meeting to comment regarding any matter affecting the common interest community or the association.

(f) The declaration or bylaws may allow for meetings of unit owners to be conducted by telephonic, video, or other conferencing process, if the alternative process is consistent with subsection (g) of K.S.A. 2010 Supp. 58-4612, and amendments thereto.

(g) This section shall take effect on and after January 1, 2011.

58-4619. Same; board of directors; removal.

(a) Unit owners present in person, by proxy, or by absentee ballot at any meeting of the unit owners at which a quorum is present, may remove any member of the board of directors and any officer elected by the unit owners, with or without cause, if the number of votes cast in favor of removal exceeds the number of votes cast in opposition to removal, but:

(1) A member appointed by the declarant may not be removed by a unit owner vote during the period of declarant control;

(2) if a member may be elected or appointed pursuant to the declaration by persons other than the declarant or the unit owners, that member may be removed only by the person that elected or appointed that member; and

(3) the unit owners may not consider whether to remove a member of the board of directors or an officer elected by the unit owners at a meeting of the unit owners unless that subject was listed in the notice of the meeting.

(b) At any meeting at which a vote to remove a member of the board of directors or an officer is to be taken, the member or officer being considered for removal must have a reasonable opportunity to speak before the vote.

(c) This section shall take effect on and after January 1, 2011.

No you do not need to amend the covenants to have owner control of the association. It is just the declarant sections in the documents become in essence null. Later you may choose to amend and remove any such references. The new statutes will describe proper procedure to follow along with your governing documents.

If the developer has not kept up with statute changes it will be … surprise, surprise, surprise

Kristalyn ... one more item to do is check with your surrounding HOA's and see who they recommend for a good attorney. You will need someone on hand to consult with, if needed, so at least have 1-2 options.

Hi Kristalyn:

You follow the information in the above statute referenced 58-4611. You in essence need to do up a document maybe titled “Request for Special Meeting of Unit Owners”. You then have it state something to the effect of … Pursuant to Section 58-4611 (b) of the Kansas Uniform Common Interest Owners Bill of Rights Act a special meeting is hereby requested by the following unit owners having at least 10% or more of the votes in the association for the purpose of …. (then list the items you want for the agenda). I recommend you get more than the 10% in case they try to state some are not in good standing, and eliminate said signatures to reduce the percentage. This way they will not have a potential out for not having a meeting.

You then get the signatures and send to XYZ Association Secretary by “Certified Return Receipt” mail. A signature on the returned receipt will prove when the document was received. After 30 days of when it was received, if no response then the homeowners can notify themselves and the declarant (because he still owns lots) following 58-4611 (c) of the meeting and hold said meeting. If I remember in the statutes it allows recording of meetings; therefore, double check and if allowed I would recommend recording the meeting.

Now … before the above you also need to check the statutes and your governing documents to insure everything is included and followed with regards to electing a homeowner board of directors. Do you currently have homeowners who are willing to serve on the board? If so potentially in the document maybe state that the following have stepped forward as nominees for election of board members and nominations will be taken from the floor (depending on what is allowed in your association documents).

If your group is uncomfortable in following the statute and your documents yourselves, then you need to pass around a hat and have everyone pitch in to pay for an attorney. I am not an attorney and on this site we can only offer advice based on the statutes which we can view ourselves. Other information will be contained in your governing documents and which we cannot view; therefore, you will need to review your documents and determine this information yourself or hire an attorney to review.

Hopefully, when the meeting takes place the developer will turn over the appropriate documents and accounts. If not then an attorney may need to send a demand letter requesting the information or file court action if needed.

Hope this helps clarify.

You can have an attorney maybe send a demand letter or you can check and see about small claims court. I do not know about your state and HOA access to small claims, so that would be something you need to check on yourself.