Recall Vote for Entire POA Board

We put together a Civic Club in our community with part of it's stated purpose to act as a "watchdog" organization over the property owner's association because of a general lack of faith and mishandling by the board of directors. The consensus of the community is to elect a new board entirely, but some of the old board have refused to step down. The next step that we took was to petition for a special members meeting; send certified notices to all homeowners of the meeting time, date and agenda which is properly listed on the original petition as a recall vote and election to fill all vacant spots on the board. My question is this: If the current board members refuse to acknowledge the legality of this recall vote and election, what is our next step? We are currently planning on filing a civil suit in our JP's office the day after the annual meeting, which is scheduled the day after our special meeting to pursue a legal transfer of all documents and bank accounts. The annual meeting is not legal according to the laws that I have found regarding associations that are incorporated and they never have a legal voting list, nor handle the ballots appropriately hence the reason that we called the special meeting for the day before so that the board could be notified to stand down legally at their annual meeting. Are we on the right path? We cannot, under any circumstances, afford to hire an attorney as representation and have pursued this path as our only recourse - is there another that may be more efficient?

Just a couple of questions and if they are not relevant, please do not worry about answering.

1. Was the justification to recall ALL board members on the petition itself?
2. When you say ‘they never have a legal voting list’ do you mean there are no signed 'Voting Certificates' by those members who can legally vote in your community on file? If true, how are you going to correct that problem at the special meeting?
3. What is JP?

1) No the justification is not listed specifically. However, it is listed that at the previous monthly meeting, they were asked to resign voluntarily.
2)No, there are no voting certificates. Our resolution is to use the actual tax rolls and have a signature prior to the election of the voter in the same manner that our districts handle on-site voting which is beside their name on the tax roll after providing legal identification. Our deed restrictions call for one vote per property owner, no matter the number of properties owned and the law only asks for a list of legal voters to be onsite and calls specifically for how the ballots are collected and tallied.
3) Justice of the Peace, which is the legal authority in our district.

Oh, I think I understand. First, you had petitioned the board to resign and they did not. Now you have a petition out to call a special meeting. And the purpose of the special meeting is to recall the old board and appoint a new one at the same meeting? And, you most likely need a majority, right?

I do not know the procedural issues you are faced with but I guess you are saying that the list of legal voters on site does not have to be signed by those who can vote. But how do you maintain such a list?

We have cases where units were transferred to some trust and the trustee is an attorney; or some units may be owned by a corporation/partnership and only one person can be appointed to vote. In this instance the voting certificate has to be attested by the corporate secretary. A signature on the ballot envelope certificate is compared to a signature on the voting certificate before the ballot is opened. If they do not compute, the ballot is trashed. You would not believe how many votes have been disqualified over the years because these details have been overlooked. But, again, none of this is probably applicable to your situation, but do make sure you are doing everything by the book. Wish you good luck.

We can have both proxies and ballots according to the Texas Business Organizations Codes. The proxies are signature based and mail is certified and, of course, the current board will have the opportunity to do a signature comparison, but the law is specific on acceptance of proxies.

Absentee voting - we are asking that any ballots received include a copy of their driver's license, state picture ID or passport to confirm the validity of the ballot.

As far as notifying the board of the call for a special meeting, the meeting itself is to replace the board in it's entirety by the majority of the community as called for in the property code / business code as a recall vote with a full election on the same ballot. In the absence of any procedures for recall votes in our Texas codes, we used Florida's procedure as it is much more stringent and compliant.

The board is being notified of the meeting in the same manner as the individual property owners. The president of the board will be provided with the petitiion calling for the meeting so that signature verification can take place on the part of the board and copies of all voting processes at the special meeting will be provided to the board as specified by the business code.

The board refused a request to step down voluntarily at the monthly board meeting, and refused to hear our request for a call for a special meeting.

I think that we have all of our ducks in a row, however, this is such a huge conflict in our community, that we want to make sure that every step is covered. Please respond if you can see any holes in our efforts.

PS: You see, if we were to recall the board and appoint the new one one day before the annual meeting their term would expire the next day. (At least this is what the by-laws and FL law says).

The meeting is for a recall vote & reelection and the successive candidates are noted on the ballot.

Involving the legal system - our Justic of the Peace - will be our next step. We are in the process of filing a civil suit today through the JP Court regarding the open records requirement - they have failed to provide any over a number of years of requests.

We will have an off-duty police officer present at the meeting to keep it from getting out of hand, but the law is clear that they will have to turn the "keys" over at that point. If they continue to resist, then we will go back to the Justice of the Peace to file an additional suit for mismanagement of fudiciary responsibility.

Thankfully, we are not required to have legal representation in the JP Courts, and we have stepped very carefully through all of the legal details, including having all of the appropriate business and property codes with us to support the case. If push comes to shove, we do have some homeowners who have indicated a willingness to provide funding for a lawyer, though they would be limited funds. We have some great legal schools here in Houston, and could probably find someone to help inexpensively, but we're hoping that with the amount of support that we have, which is by far more than they have had in years, that they will recognize the need for positive change instead of the course that they have laid for themselves.

You are right though, I have seen that ugliness rear its head in other circumstances, so we are all praying for a sound mind and response from the board......

The annual meeting is not legally called - no notices, no agenda, no ballots, nothing within the required timeline. As well, there are no term limits except those that were adopted by the board previously, but never filed legally.

Interesting read. Please keep us posted of the outcome. What date is this special meeting scheduled?

Also I'd like to mention, after going back and reading the paperwork again, what was actually amended was the Deed Restrictions themselves.

Our originals state: "It may be required that each property owner herein shall pay a certain fee on a monthly or annual basis into the treasury of an association of the property owners and this fee shall be set by and approved by a majority vote of the property owners in the subdivision, and any lot owner failing to pay the required amount into the fund shall be deprived of all his privileges of the use and the enjoyment of the facilities provided in this subdivision, and such privileges shall not be renewed until all deliquent payments into the treasury have been brought up to date, plus interest at Eight (8) per c«nt per annum tn all past due payments."

In 2005, they 'amended' the Deed Restrictions themselves stating: "MEMBERSHIP: Each owner of lot(s) in the Subdivision are required to be members of the XXXXPOA and shall pay maintenance fees accordingly."

These were never filed with the County Clerk's office. We were told that a lawyer had told them previously that the words in the original Deed Restrictions "may be required" doesn't state that an owner HAS to pay. They just lose privileges if they don't. Hence, we believe, the change. So, 6 years later, if they try to file these before their annual meeting, would they be valid? Of course, we'd challenge the voting and ask for proof they had 75% of the property owners vote for and approve this (we were not living here at the time).

The amount of the assessment dues was set forth in the 60s & has not been changed, so that's not the issue here.

The issue is the POA spending their time and effort to enforce mandatory payment and whether anything they do or have done is even legal because nothing has been filed since the original Deed Restrictions. We also believe the delay in the annual meeting, which HAS been moved to a week later, is an attempt on their part to (as they've actually stated) to clean up the mess that was left by those who resigned. Of course, they were part of the board when the mess was created. Also they were asked to suspend what they consider mandatory dues and loss of amenities until the books have been thoroughly audited, as many owners here do not want to add money to a financial mess, only to be told later that "we don't know what happened to your payment, we have no record of it", etc. They have refused.

We know some owners who sent in payments by certified mail, only to have it returned unopened - never picked up - just before all the "mess" started and people started stepping down. They are now unwilling to hand over money when even board members do not know what is going on and are trying to get things fixed. So this family is denied use of the pool (actually their child), for example, when an actual member on the board is behind on dues, and shouldn't even be in that position to begin with, and this person works at the pool and picks and chooses who is allowed to come in.

So it's quite a disaster that had been allowed to go on for years and they are scrambling now to fix it all before the annual meeting they rescheduled and a couple of them have every intention of remaining on the board. We want them OFF!

And a side-note - it wasn't until we started doing research on everything going on out here and started bringing it out into the open that the stuff started hitting the fan and members started resigning........

.. consequently, recording the 2005 amendment in 2011 would not help the Board in any way to justify the mandatory fees imposed since 2005..should that be the issue.

Mary,

I hate to be pest but please let’s look at from the other point of view. What IF the remaining board members have decided to become good guys? Now, they have the CPA auditing the books, may offer to return money to owners, prepare for legal election and otherwise admit to their past mistakes or, actually blame someone else for the chaos caused. You will have two elections a few days apart. Is not that going to confuse the membership? I have absolutely no doubt that you have done the right thing for the association but sometimes ‘legal’ does not prevail. Not in HOAs anyway. Please do not take it in the wrong way.

I understand what you're saying, but the issue, or one of them, is that the remaining board members knew there was activities going on that shouldn't have been. They could have tried to do something or let someone know that things weren't right. But they stayed and didn't do anything until all of this came out in the open. They have not admitted anything, if fact they are saying they are trying to fix the mess and had nothing to do with any of it -- well - they were still board members. I guarantee they are not intending to return any money. They only had the books audited because a lot of people told them they weren't paying anything until the books were checked. The reason being is that people have the requested the books for YEARS and they've never produced them.

The bookkeeper, who was also the president's wife, would constantly gives excuses - I'll bring them next time, I'll look into that, They're in a box in my attic and can't find them........etc., it was one excuse after another.

As far as the membership goes, everyone out here has been fed up with this board for years and quit paying because of it. The only legal action they can do, and we're not sure they can legally even do that is to file for a judgement -- that's it.

And legal - I know what you mean. But a lot of judges out here cannot stand HOAs. A lot of us are going to hit them up with separate civil suits.

Mary,

I'm much clearer on the situation now. Thank you.