Election of Board Members

Started by CarolynW2 • 27 replies • 2483 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

CarolynW2 (Florida)
Posts: 1

Posted:

We recently had a board meeting to electic new board members. Some are on a two year term and others on a one year term. There were too be four board members up for election. In the past our Property Manager would send out a letter with the names of the people running. She would also send out a proxy at the same time so that you could give your vote to someone else. This year we have new Property Managers and they do not explain anything to the residents nor are they doing anything the same way. So when the elections came up and there were not enough community members there they just allowed the existing board to nominate new board members. Is this right, can they do that ? They also had three members last year they resigned and they appointed replacements should those people have to now be elected, because that did not happen either.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Carolyn:

Welcome to HOATalk. You need to review your governing documents to make sure if the proper procedures contained therein have been followed.

You did not state if you are a Planned Community or Condominium and the statutes can vary slightly; however, as an example the following is stated for planned community HOA’s under Chapter 720 (if you are Condo, please let me know):

(9)(a) ELECTIONS AND BOARD VACANCIES.—Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held or, if the election process allows voting by absentee ballot, in advance of the balloting. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters.

They need to possibly hold a proper annual meeting and properly elect directors following the procedures in the governing documents. I would bet the governing documents potentially do not allow the board to elect the directors annually.

The issue regarding the directors who resigned last year and were appointed unless otherwise stated different in your governing documents then yes the board can elect a replacement under the Non-Profit corporation statutes if your association is incorporated as such. However, the term ends at the next annual meeting at which directors are elected as noted below:

617.0809 Board vacancy.—
(1) Except as provided in s. 617.0808(1)(f), any vacancy occurring on the board of directors may be filled by the affirmative vote of the majority of the remaining directors, even though the remaining directors constitute less than a quorum, or by the sole remaining director or, if the vacancy is not so filled or if no director remains, by the members or, on the application of any person, by the circuit court of the county where the registered office of the corporation is located.
(2) Whenever a vacancy occurs with respect to a director elected by a class, chapter, unit, or group, the vacancy may be filled only by members of that class, chapter, unit, or group, or by a majority of the directors then in office elected by such class, chapter, unit, or group.
(3) The term of a director elected or appointed to fill a vacancy expires at the next annual meeting at which directors are elected. Any directorship to be filled by reason of an increase in the number of directors may be filled by the board of directors, but only for a term of office continuing until the next election of directors by the members or, if the corporation has no members or no members having the right to vote thereon, for such term of office as is provided in the articles of incorporation or the bylaws.
(4) A vacancy that will occur at a specific later date, by reason of a resignation effective at a later date under s. 617.0807 or otherwise, may be filled before the vacancy occurs. However, the new director may not take office until the vacancy occurs.

I would recommend sending all correspondence regarding the issue via Certified Return Receipt if you question any actions. This puts the board and property management company on notice that correspondence is being tracked, and maybe helps insure proper procedures are followed.

SusanW8 (Florida)
Posts: 15

Posted:

Our HOA had nearly the same situation. Except our Board sits for one year terms. We did not have a quorum at Annual Meeting. There was no election. Three members resigned, four stayed on. At the next meeting the four appointed like minded to fill the vacancies. No prior announcements were made. There were several folks interested who were not contacted. The Board was notified in writing prior to our last meeting regarding such. At the last meeting the Board had an attorney opinion read that sided with the Board. However, our Bylaws state:

Any vacancy occurring on the Board of Directors shall be filled by the Members in accordance with Articles of Incorporation and these Bylaws."

"Member" is defined in our documents as homeowner.

This seems grossly unfair. Did the Board have the right to do this?

SusanW8 (Florida)
Posts: 15

Posted:

Oh...and our Bylaws also state:
"The directors shall be elected at the annual meeting of Members and at each annual meeting thereafter, by a plurality of votes cast at such an election using a straight voting method for each seat..."

It seems none of them should be serving until an election can be held. No?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Susan:

720.306 Meetings of members; voting and election procedures; amendments.—

(2) ANNUAL MEETING.—The association shall hold a meeting of its members annually for the transaction of any and all proper business at a time, date, and place stated in, or fixed in accordance with, the bylaws. The election of directors, if one is required to be held, must be held at, or in conjunction with, the annual meeting or as provided in the governing documents.

If you want to help insure proper procedures are followed then in the future you might consider the fact that you have the following option available in Florida:

(10) RECORDING.— Any parcel owner may tape record or videotape meetings of the board of directors and meetings of the members. The board of directors of the association may adopt reasonable rules governing the taping of meetings of the board and the membership.

Videotaped meetings (if allowed by the State Laws) tend to be a little more above board as it can possibly become evidence.

Everyone reading this thread needs to review their laws regarding taping meetings if they consider the option as some states it may be not allowed and very illegal.

SusanW8 (Florida)
Posts: 15

Posted:

Thanks Janet for the reply. However, we didn't technically have an Annual Meeting because we didn't have a quorum. Shouldn't it have been rescheduled?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Susan -
1) you didn't have an election at the annual meeting because of a lack of quorum
2) vacancies were created by board members leaving
3) the board filled the vacancies.

The board did nothing wrong and it's no wonder the attorney sided with them.

So . . .
Check your documents under Terms of Service for the board. it might state that they stay in office "until their term ends OR there is an election to replace them." It sounds like your board is planning on staying put.

Your documents should also tell you what to do it you can't reach quorum. Sometimes a reduced quorum is allowed for a future meeting so the election can take place.

If enough of your HOs are upset, they can push the issue and insist the board set the date for another meeting.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Susan:

Unless your governing documents state otherwise, then potentially they should have rescheduled until quorum was obtained. If you fall under Chapter 720, then the following is stated:

720.306 Meetings of members; voting and election procedures; amendments.—

(1) QUORUM; AMENDMENTS.—

(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

What do your documents state regarding an annual meeting?

SusanW8 (Florida)
Posts: 15

Posted:

Thank you for the response Susan from Michigan. I guess I should clarify that Florida Statute 720 seems to suggest vacancies can only be filled through appointment if our Bylaws do NOT say different. Our Bylaws do. See above post where I provided the exact wording.

SusanW8 (Florida)
Posts: 15

Posted:

Janet,
Our documents do not specify any percent that I can find. They state only:
Directors shall be elected at the annual meeting of Members....by a plurality of votes cast....

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Susan:

If your documents do not designate a percentage to meet quorum, then the 30 percent required by the state statute would apply.

SusanW8 (Florida)
Posts: 15

Posted:

Yes, I found it... Our documents do specify thirty percent. However, I have read conflicting posts where some folks say the remaining Board members stay until they either resign or the next annual meeting. Obviously, the remaining would want to read it one way and homeowners another. This is causing chaos in the community. Many now feel that not single member of the Board was selected by homeowners... They selected themselves first through default and then through disregarding our Bylaws regarding vacancies. At this point, not 1of the 7 have been elected.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Board members serve their TERM. That is what you have to determine. Find it in your bylaws.

If the "term" is one or two years OR if it is until they are replaced by election.

It sounds like since you did not have an election (due to lack of quorum) your board is puttering along until the next election.

SusanW8 (Florida)
Posts: 15

Posted:

"...shall hold office until next succeeding annual meeting." We technically didn't have an annual meeting.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Susan:

Per the State Statute as I referenced above pertaining to 720.306 Annual Meeting clearly states: The election of directors, if one is required to be held, must be held at, or in conjunction with, the annual meeting or as provided in the governing documents.

Per your statement your documents address as follows:

The directors shall be elected at the annual meeting of Members and at each annual meeting thereafter, by a plurality of votes cast at such an election using a straight voting method for each seat...

Further 720.306 Quorum clearly states in part: Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

Again the last sentence is NOT ambiguous where it states “at a meeting at which a quorum has been attained”. If quorum was not obtained, then there potentially was no legal annual membership meeting.

Now if I was in your shoes and making a decision then potentially I would get my homeowners together and would call a Special Meeting:

(3) SPECIAL MEETINGS.—Special meetings must be held when called by the board of directors or, unless a different percentage is stated in the governing documents, by at least 10 percent of the total voting interests of the association. Business conducted at a special meeting is limited to the purposes described in the notice of the meeting.

Now … care to guess the purpose that would be described in the notice of the meeting. And I would make darn sure I followed every item in my documents and state statutes necessary to obtain my goal.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By SusanW8 on 03/05/2012 3:25 PM
"...shall hold office until next succeeding annual meeting." We technically didn't have an annual meeting.

Susan

What makes you say you did not "technically" have an Annual Meeting?

Thanks

TimB4 (Tennessee)
Posts: 21,059

Posted:

John,

Susan posted earlier saying that there was no quorum at the meeting and I think that this is what she means.

However, I disagree. Technically, they had a meeting - Notices were sent, people showed up, signed in, etc. They were just unable to conduct business (i.e. elections) at that meeting due to lack of a quorum.

Tim

SusanW8 (Florida)
Posts: 15

Posted:

Thanks Everyone!
It seems there are conflicting views regarding the 3 members staying in as a result of a lack of a quorum at the annual meeting. Many homeowners feel they should have made another attempt at getting a quorum by rescheduling the meeting for a later date which they have done in the past (with success). Our Annual Meeting was held during the Thanksgiving holiday week. Many folks were away or too busy.

It is the issue of how they appointed the vacancies that is causing the chaos because our Bylaws state: "Any vacancy occurring on the Board of Directors shall be filled by the Members in accordance with the Articles of Incorporation and these Bylaws." This is the first sentence after the heading "Vacancy" In addition, we have an official HOA website. There was never a posting regarding the intent to appoint at the next meeting or request for those interested to come forth. There were homeowners interested but these homeowners first didn't think our Bylaws even allowed appointment and second had no notice of the intent to appoint. I would love to read more thoughts on this issue.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By SusanW8 on 03/05/2012 11:53 PM

Many homeowners feel they should have made another attempt at getting a quorum by rescheduling the meeting for a later date which they have done in the past (with success).

Susan,

I believe that many, if not all, on this forum would agree with that statement.

Unfortunately, if your Board doesn't agree with that statement, then it will be up to the membership to formally protest the appointments. If your board doesn't agree with the points in the members protest, then either a full recall or legal action will be required.

I would suggest doing a recall first as it is typically less expensive than a legal challenge. However, either way there will be time, energy and funds spent to resolve the issue. You might try gathering as many members as possible to attend the next board meeting and formally protest the appointment of directors in what is seen as a violation of the Bylaws. Perhaps if the members show up in force, the board will listen (vs. thinking it's only one or two members who are upset about the appointments).

Tim

SusanW8 (Florida)
Posts: 15

Posted:

Tim,
There are a lot more than a few who disagree with our Board. However, homeowners are terrified to speak out publically against our Board. Our Board and Property Manager are defensive, rude, use intimidation tactics, twist our Bylaws and use selective enforcement against their enemies. We have had several years of this. Our monthly meetings are filled with hostility. People just gave up. For most people the only thing left is to go through the legal process or roll over. For me, I am choosing to blog my opinions on our community site. I am not a person interested in suing the HOA, but I will keep the terrified homeowners informed much to irritation of the Board. I know if they are irritated then they are at least reading others opinions. That is a start!

Thank you so much for the information.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Understood.

My only advice if you are publishing these issues is to only publish what can be independently verified. The minute you let emotion enter into the issue and make an off handed comment you run the risk of being being sued for libel.

Let the facts speak for themselves.

SusanW8 (Florida)
Posts: 15

Posted:

Tim,
Thank you for that advice. It is true they are waiting to slap me with something. It has been heated for sure, but so far I have kept to the process and not the people. They, however, resorted to name calling in a public forum. Then their attorney must have advised them to stop posting altogether much to our relief!

SimoneT (Florida)
Posts: 116

Posted:

Hi JanetB! I can't sleep, so I figured I will write. We had something similar also happended to us. We are a Real Property Mobile Home Community. We have seven board members. Last year we had three that have TWO year TERMS. Four had ONE year TERM. Two of the ONE year TERM resigned and brought in THEIR OWN REPLACEMENTS. One of the ONE year TERM was "kicked out" and his "spot" was open for a few months. One's ONE year TERM was also up in January along with the PREVIOUS THREE. Now, on our Yearly Meeting/Voting Meeting, we did NOT meet quorum. We needed 143, and only had 75. So, the board said nothing could be done about voting because we did NOT meet quorum {the association lawyer who was also present on this day affirmed what the board said, (I do not know why he was even present)}. BUT, they also said that we HAD to wait until next year to vote again. My question is, How can these FOUR people keep their positions when their TERM was up? Did not we need to hold a SPECIAL MEETING at a later date (30 days later?) to hold our VOTING? If these FOUR stay in their positions until next January, then these FOUR would be serving TWO YEAR TERMS, not ONE.

Our BY-LAWS state in ARTICLE V111, SECTION 3: QUORUM. "SO MANY MEMBERS AS SHALL REPRESENT AT LEAST A MAJORITY OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS, PRESENT IN PERSON OR REPRESENTED BY WRITTEN PROXY, SHALL BE REQUISITE TO AND SHALL CONSTITUTE A QUORUM AT ALL MEETINGS OF THE ASSOCIATION FOR THE TRANSACTION OF BUSINESS, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, BY THE DECLARATION, THE ARTICLES OF INCORPORATION OF THE ASSOCIATION OR THESE BY-LAWS. IF, HOWEVER, SUCH QUORUM SHALL NOT BE PRESENT OR REPRESENTED AT ANY MEETING OF THE ASSOCIATION, THE CHAIRMAN OF THE MEETING SHALL HAVE THE POWER TO ADJOURN THE MEETING TO A TIME AND DATE NOT MORE THAN 30 DAYS IN THE FUTURE; PROVIDED NOT LESS THAN 5 DAYS WRITTEN NOTICE OF THE ADJOURNED MEETING DATE SHALL BE GIVEN TO THE MEMBERSHIP. AT SUCH ADJOURNED MEETING, SO MANY MEMBERS AS SHALL REPRESENT AT LEAST 33 AND 1/3% OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS SHALL CONSTITUTE A QUORUM AND ANY BUSINESS MAY BE TRANSACTED WHICH MIGHT HAVE BEEN TRANSACTED AT THE MEETING ORIGINALLY CALLED."

At this point, what can we do if anything? Can we still request, demand a Special Meeting?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Simone:

Can I ask a big favor and have you post your question on a new thread. The reason being is that you are a Mobile Home Community which would fall under different statutes than the original poster on this thread. If I post answers to your question on this thread it has the potential of confusing individuals reading later and who may take steps based on information regarding different statutes and which would potentially be incorrect.

If you use your mouse and left click then highlight your text then right click the drop down box will give you the option to copy. Then go to a new thread and again right click and choose paste. This will place the text you have typed into a new thread for us to answer your question.

LOL … then we would not be potentially hijacking another posters thread to answer a different question.

Thank you!!!

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By JanetB2 on 03/06/2012 9:47 PM
Hi Simone:

Can I ask a big favor and have you post your question on a new thread. The reason being is that you are a Mobile Home Community which would fall under different statutes than the original poster on this thread. If I post answers to your question on this thread it has the potential of confusing individuals reading later and who may take steps based on information regarding different statutes and which would potentially be incorrect.

If you use your mouse and left click then highlight your text then right click the drop down box will give you the option to copy. Then go to a new thread and again right click and choose paste. This will place the text you have typed into a new thread for us to answer your question.

LOL … then we would not be potentially hijacking another posters thread to answer a different question.

Thank you!!!

Good morning JanetB! Your answer to Carolyn says, "You did not state if you are a Planned Community or Condominium and the statutes can vary slightly; however, as an example the FOLLOWING is stated for PLANNED COMMUNITY HOA’s under Chapter 720 (IF you are CONDO, please let me know):..." I followed your lead due to your statement, and did not mean to confuse anyone. What is a Planned Community then? Thank you so much for your reply.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

ALL

In one HOA I was a member of, if we were unable to obtain a quorum (including proxies) at our Annual Meeting (say 400 for a quorum), we could call for continuation of the meeting 30 days later and the required quorum amount was halfed (400 to 200). We could then do the same thing 30 day later and again the quoram was halved (200 to 100). Proxies were good for 90 days.

One year it took us 3 meetings to finally get new members elected to the BOD.

I do not know how common this is, but our docs contained it.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By JohnC46 on 03/07/2012 6:30 AM
ALL

In one HOA I was a member of, if we were unable to obtain a quorum (including proxies) at our Annual Meeting (say 400 for a quorum), we could call for continuation of the meeting 30 days later and the required quorum amount was halfed (400 to 200). We could then do the same thing 30 day later and again the quoram was halved (200 to 100). Proxies were good for 90 days.

One year it took us 3 meetings to finally get new members elected to the BOD.

I do not know how common this is, but our docs contained it.

Hello JohnC:

Can you tell me where in your documents this was written, and show me the written verbage? Did it also state that the quorum would decrease by half with each delay? Thank you for your reply.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Simone

Sorry but it was an HOA I belonged to several years ago and I do not have a copy of the docs.

I can remember the protocal if it will help. At the Annual Meeting, Proxies and those registering at the meeting were counted by two BOD Members and two Management company people. While this counting was happening the BOD would do normal business like present the budget, etc. All of that was done first.

When the count was done it was announced if we had a Quoroum and issues to be voted on would begin. If there was no Quorum it would be announced right then and there that this Annual meeting is adjourned and rescheduled for 30 days from now.

Few went into the annual meeting cold. People wanting to run for the BOD, make Bylaw chages, had their ducks all ready to swim if there was a Quorum. Also we were an HOA that ovearall got along fairly well so no one was trying to stack the deck. We never had an attorney attend our annual meeting to guide/control things and/or people.

Knowing somewhat your trials and tribulations I suggest the best thing you might do is run a clean, according to the rules, no lawyers needed, etc. slate of BOD candidates that want what you want. Get them elected by the existing rules even it it takes a few election cycles. If you are right, it will eventually go your way. If unable to do this then you might well be the lone wolf howling in the distance.

The other suggestion and I believe you have already dismissed it as to expensive, is to hire an attorney that is familiar with FL association laws and be sure the present BOD is doing things correctly and/or how to get around and/or take them to task for what you believe them to be doing wrong.

I am afraid that going toe to toe with them and trying to prove them wrong loaded with only advice from out here is a losing battle for you.

Seize the power from within...then go on the vendetta...LOL

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here