Petition of Removing Board with 41% of 175 unit became invaid and Not legal

California

Our Home Owner had signed the petition roughtly about 41% of all home owner signed the petition to request 2 or 3 indiviual board. After me and other boards discused and we finallized that to removed the individual that being request by the home owner to remove them off the board.

The management company had stated to us that the petition is not valid they are verify the petition with the attorney.

I dont know why it's not valid becasue it's under 50% of home owner or could be something else? Based on the california artical of corporation. it stated that board can be remove by a membership without cause.

Thank you

Brian,

I'm gathering that a petition with 41% of the members signatures was given to the Board to recall (remove)one or more Directors. After the petition was submitted, the response from the MC stated that the Board is considering the petition not valid until they verify it with the Associations attorney.

How was the petition worded?

There is a right way and a wrong way to try and recall a member or members of the Board. For a membership to properly go through the process of recalling/removing a Director from the Board the petition must ask for a special meeting for the purpose of removing one or more of the directors from the board.

If the petition was just asking for the actual recall or removal of the Director without calling for a special meeting, then the petition would be invalid (per the Davis-Sterling act).

Here is a link to a sample petition from the davis-sterling.com website

Depending on how the petition was worded, you may need to go back and ask that members sign a new petition so it would be valid.

Tim

Hi Tim,

The home owner use same form as example there. They also did submitted the petition of recall BOD at we schedule them at the same meeting with the regular meeting with the home owner every 2 months. At that meeting the groups of home owner submit the Removal of certain BOD. I don’t know it's that consider right way.

The entire petition they got at least 41% of home owner signed. I believe they can get more signatures since they very sick of these BOD. And would like to get rip of them but they can't before. They had done so many time to remove them but every time signature page never get to the board. It been disappeared after they mailed. I tried to ask MC about previously submission. The MC Company never got them.

So in order to have a valid petition, what is best way should these home owners do to make it happen?

What is Recall of Board director? What is the different between recall and removal? Can the home owners just submit the Petition of removal without a recall? Or do they have to a recall first. And what does it mean by recall?

Dear members of the board:
This will acknowledge receipt on may 17, 2011 as an email from your community manager concerning the procedures for recall of two of the directors. Please note that it’s perfectly legal to seek the recall of less than the entire board. However, such recalls are rarely successful when you have cumulative voting suck as (Association name). When you are recalling less than entire board there has to be a separate vote for the recall for each of director. It would of course to be on the same ballot. Item #1 would be “recall director No. 1 “And Item #2 would be “recall of director No. 2”. The corporation code provides that if vote against recall could have been sufficient to have elected that director had the same number of votes been cast, then the recall fails. For examples if you have a five-person board and ninety (90) votes are cast at the recall election. Then sixteen (16) no votes for each director would defeat the recall even though seventy-four (74) people may have voted “yes” on the recall.

To recall entire board you only needed a majority of the quorum. In the above example, you would only need forty-six (46) “yes” votes for the recall to pass. However, recall directors are free to again. The meeting is sort of a two-part session. First, you determine if the recall passed and, secondly, if it did pas then you elect new directors. Since recall elections are covered by the new (well, not so new now) Election Code contained in the davis-stirling act, you normally have to set the date for the recall meeting somewhere around eighty or eighty-five (80-85) days after served with the petition. The procedure is as follow:
1. A petition signed by at least five percent (5%) of the members demands the calling of a special meeting of the members for the purpose of (in this instance) recalling Director “A” & “B” and, if successful, electing new directors to fill their seats.
2. Upon service of the petition, the board needs to resend out the notice of Special Meeting of the Members, setting forth the purpose the meeting. (i.e, to recall director “A” to recall director “B” and if successful, electing replacement directors)
3. At the time the notice of meeting is sent out, there should also be an invitation sent out for people to submit their names to be printed on the ballot in the event the recall successful.
4. The notice of the meeting has to be sent out within twenty (20) days after receipt of the petition.
5. The meeting itself must be held not less than thirty-five (35) nor more than ninety (90) days after receipt of the petition.
6. Double –envelope ballots have to be sent out at least thirty (3) days prior to the meeting. Therefore, if ou sent out the invitations for peoples to run for the board, you are usually going to give them thirty to forty-five (30-45) days cut-off to submit their names
7. Ballots are then printed with the names of the entire director who are seeking election. If the recall is successful. The ballots have to sent out at least thirty (30) days prior to the meeting.
8. Naturally, there has to a quorum at the membership meeting. For purpose of quorum, mail in ballots, proxies and members in personal attendance who have not sent in their proxies or ballots) are counted. Section 2.03 of your bylaws indicated that your quorum requirement is fifty-one (51%)
Please note that if proxies are used, they must comply with the both Election Code and The Davis-Stirling Act. As well as various provisions of the Corporation Code. If a quorum is not present, those in attendance can vote to permanently adjourn the meeting or adjourn the meeting to another date which must be not less than five (5) and no more thirty (3) days from the time the original meeting was called.

Hi Brian:

Are you still under a developer/declarant? If no, then why has your association not eliminated “cumulative voting” in your governing documents?

My recommendation would be if the developer is no longer in control, then you need to get the homeowners on board to follow proper procedure to amend your governing documents and eliminate said cumulative voting as this is generally in place initially to benefit said developer.

After cumulative voting is eliminated, if possible, then your homeowners in the future will be better able to recall directors as desired.

The steps for recall meeting were given to you in your above post by the attorney describing the current voting situation.

Hi jannet,

What is the Developer/Declarant?

Hi Jannet,

I have no idea whether this condominium is still under Developer/Declarant.. The CC&R, Artical Of Corporation, and Bylaws was originaly drafted on 1969. since then they only did one amendment in July 1979. Which now about 31 years old.

In order to know the community still under developer/Dcelarant where should I go to find that out? would it be City hall, or county?

Thank you

Hi Jannet?

I agreed with you, I assume it no longer under Developr/Declarant any more? But are there away to checking on this to make sure? It very frustated if I ask the MC it will take them at least 2 months before they can give me the answeer?

Ic... But I just join to the board.. Because of the mess that current 3 board had me the mess way of it manage.. And I was one of the candidate has most highest vote rest they got only 23 and 14... So I think this community it was not under developer any more.. But is there way to check to make sure beside that way

Janet-do you know of a sample recall petition to remove entire board?

Kay,

It's best to start a new discussion than to reactivate an old thread. This is because laws change and what may be good advice in 2011 may be bad advice in 2013.