Overthrow HOA directors by petition

Hi,

I've been searching for some advice about HOA and I found this site.

I hope someone can help us.

I and other unit owners gathered and decided to overthrow our current HOA since our building hasn't been maintained well for a long time.

They nominated me as a president so I created a petition and got thirteen signatures(24 unit building).

However, when we got thirteen signatures, a treasurer backed out and wanted me to cross her name out from that position.

And I went to see the current president and told her what was going on and gave her a 10 day notice. I also informed her that we were going to have a meeting for announcement and vote for a treasurer.

Two days later, the owner who was once to be a treasurer told me that she wants that position because she heard a rumor that our current president were trying to be a treasurer. So I added her as a treasurer on the list and posted meeting announcement.

Last night our current president called me and wanted to have a talk.

She came with a secretary and one other unit owner.

And they basically told me that my petition is not legal/valid since
1. some of those signatures are from tenants
2. some of those signatures are from delinquent owners
3. the new treasurer is not qualified since she is a delinquent owner
4. I didn't go to every single unit to get the signatures. They could sue me on this one as discrimination and inequality.
5. the current president got fifteen signatures against me.(They didn't show me tho)
6. etc.. it just went on and on.

My answers to those questions to them were
1. I asked them whether they had owner authorization
2/3. They told me that they will pay the dues if we change our management. The reason why they didn't pay was lack of maintenance.
4. I asked 19 units. I didn't go to the current board members' unit since there's no reason to go and I didn't do the last 2 units since we got 13 signatures and it wasn't necessary to go further. You can sue me if you want but it has to be your own expense, not from HOA funds.
5. show me and probably we can go together and ask owners who signed on both papers.
6. Basically, we are trying bring up a new management here not just changing titles.

At the end, she kept saying I knew nothing and use my brain...
She was very upset and told me it can't be happen and threaten me that I have to go to court and have a lawyer ready if I keep pushing this.

Can we actually remove her from her position now?

Also, she's been violating the bylaws and cc&r but we just don't know what to do since we don't have a lawyer and she's the president now.

We are trying to resolve this issue internally, we don't want to hire a lawyer.

What can we do with our HOA management?

thank you.

Asron,

Welcome to the Forum.
As Glen pointed out, unless your governing documents authorize recall by petition, you went through the process incorrectly.

First and foremost, you should read and understand your governing documents (Declaration of Covenants, Articles of Incorporation, Bylaws and any resolutions) then you should read and understand the applicable State laws. Fortunately, since your in CA, Davis-Stirling.com is a good site for applicable CA laws.

Typically, the governing documents authorize the membership to recall the Board by casting votes at a meeting called for that purpose. The governing documents also typically authorize the membership to call a meeting of the membership by obtaining x% of members (one signature per lot) on a petition for that purpose.

Therefore, your petition should have had language similar to:

"The undersigned members representing 5% or more of the Association hereby petition that the Board of Directors set the earliest reasonable date for a special membership meeting for removing the entire board and electing a new board in the event the recall is successful."

If your petition said anything else, it was basically a request and the Board had no requirement to fulfill that request.

Here is a link to Davis-Stirlings Recall Petition example

Here is a link to their petition menu web page

I would now like to respond to some specifics in your posting (sorry for the long response but I wanted to be it to make sure I fully answered your concerns):


You should have first requested a membership list from the Association. This way you would be sure to know who needed to sign the petition (as only members have the authority to call a meeting).


As you now know, this was the improper procedure.


Ouch. As pointed out, only members signatures on a petition would count.
If a tenant or a member of the household who wasn't a member signed the petition, that signature would be determined invalid. If there are too many invalid signatures, it's possible that the recall committee would have failed to obtain the needed percentage.

By the way, since the current board members were elected by the membership - the current board members would have owner authorization to respond as they did to your petition.


Although members do not have to be in good standing to sign a petition to call a meeting, it's typical for members who are not in good standing to not be allowed to vote at the meeting. See Davis-Stirling's members in good standing page

As much as people want to it to be true, the reason why members refused to pay assessments is not relevant to the consequences that occur for failing to pay the assessment.


If your Association has qualifications that must be met to serve on the Board, then only those individuals who meet those qualifications may serve.

This goes back to my first line of the need to read and understand your Associations governing documents.

Again, the reason why members refused to pay assessments is not relevant to the consequences that occur for failing to pay the assessment.


Both of these remarks have issues.

For a petition to call a meeting, you did not have to go to every house. You only needed to obtain x% of the membership signatures.

However, you thought the petition was actually a vote for people to serve on the board. Had this petition been a vote, then you would have violated some members rights by not giving them the opportunity to cast their vote. This may have been the point your Board was trying to make. Personally, I wouldn't have brought it up, as the point is mute since the petition was not valid for the purpose it was drafted for (recalling the board vs. to hold a meeting of the membership to recall the board).

Your last statement of "you can sue me if you want but it has to be your own expense" appears to be a knee jerk reaction to the issues the President was trying to inform you about.

Ignoring who is actually serving on the Board, The Board was elected by the membership to manage the affairs of the Association. Therefore, any legal action brought by the Association or defended by the Association is paid for by the Association (aka membership assessments). This is why legal action should always be a last resort.


All of this is irrelevant to the issue of improper procedures being used.

If proxies are allowed then the proxy representative (whomever they are) will need to show the proxy at the meeting prior to casting a vote on behalf of the member they represent. Until then, it's just talk.


Well, what they should have said is what Glen and I are saying. You need to read and understand the Associations governing documents and applicable state laws. These are the procedures that must be complied with. If they are not complied with, all the work done will have just been a waste of time.


Any action can be challenged in a court of law. Who will win the challenge will depend on the compliance with the applicable documents and laws.
Since you now know that the procedure you used was incorrect, it is likely that if your actions were challenged, you would lose.


Yes. However, you must follow the proper procedures.

Here is a link to Davis-Stirlings Recall menu page

Typically, the procedure for a recall is (but laws vary so be sure to verify):

A typical recall procedure would be:

1) Gather neighbors and form a recall committee

2) Request membership list from the Association and a mailing list of all Board members.

3) Solicit signatures from members only (one signature per lot) on a petition to hold a special meeting for the purpose of recalling the Board of Directors and electing a new one.

3a) While soliciting signatures, solicit for people to serve on the Board

4) Send the petition via certified mail to:

a) Registered Agent (if Association is incorporated) (original)
b) Management Company (send original here if there is no registered agent)
c) All Board members (copies)
d) keep a copy for yourself

In the polite cover letter sent with the petition cite any sections of the governing documents and State law that applies to calling special meetings and recalling the board (shows you've done your homework).

5) Wait an appropriate amount of time to see if the Board announces the meeting.

If Board does nothing send a second certified letter, with copies as outlined in step 3, stating that unless a meeting is held within x days (allowing time for notice requirements) and a notice of said meeting is sent within x days (say 10 days) that the recall committee will conduct the meeting.

5a) If the Board does announce the meeting, contact all members and solicit proxies if they are not attending the meeting (providing you can vote by proxy).

IF the committee has to hold the meeting:

6) Locate a meeting place

7) Set a date and time (be sure to comply with any meeting notice requirements)

8) Mail initial notice of meeting to all members

9) Solicit proxies if proxy voting is allowed

10) Mail reminder about meeting

11) Hold Meeting

AT the MEETING (no matter who calls it):

Confirm Quorum is present
Show proof of notice
Item 1 - recall of Board
discussion
Pass out ballots
Vote
Collect ballots
count
Announce result
Item 2 - election of new Board (if recall is successful)
Introduce nominees
Ask for nominations (if allowed from floor)
discussion
Pass out ballots
Vote
Collect ballots
count
Announce result
Send copies of minutes, sign-in sheet, vote count and results to registered agent, management company and all previous (if recall was successful) board members via certified mail. Set date for turn over of all records.

The reason you send everything via certified mail is to have a paper trail in case it turns into a legal battle.


In addition to your recall efforts, I would suggest:

1) Start attending as many board meetings as you can. This way you will better understand the issues and any violations of the governing documents will be harder to do if members are paying attention.

2) Encourage other members (not the tenants, as they don't have the same rights as members) to attend the board meetings as well.

3) Read and understand the governing documents.

4) Ask questions. Don't ask them in an accusatory way (as this puts people on the defensive), ask them as a request to clarification. Example: I understood the Bylaws required xyz, is this a correct interpretation of that section?

5) Become involved in the process by volunteering to serve on committees, etc.

Hope this helps.

Tim

Listen to Tim's advice it is very informative and helpful. I just wanted to add this aspect to the party...If you do or had become President, would you have known many of these things? This isn't to insult you but for you to realize that being HOA President requires more than just votes. The list of your current Presidents response was pretty accurate and correct for the most part. Your not understanding the correctness of some of the statements is of concern.

You can't get vote from tenants even if you assume they represent the owner. Only owner votes count. Most HOA's require a "good standing status" to qualify to vote. Your HOA's condition is a direct result of these owners holding your HOA hostage by NOT paying their dues. You think them stating they will pay once you take over? Don't hold your breath. That's just another excuse NOT to pay as they will say the same thing about you when you take over. Your HOA issue is the members holding the HOA hostage by refusing to pay their fair share to contribute to the repair and maintenance of the place they live and share. A HOA is ONLY funded by it's members for it's members. How is a protest going to help the HOA situation?

Please read your rules and come hear to ask questions. We will gladly help you learn so you can be the new president. It's just your not ready yet for that task until you know the rules inside and out. Then MAYBE you can volunteer to be a board member to get into the reality of a HOA.

thank you very much for your responses.

It helped me a lot.

I want to add some info.

I went over our CC&R and bylaws. I believe they haven't revised since 1983.

Many articles are very vague and I admit that I'm not a lawyer so I don't understand them all.

Our current HOA consists of 3 members.
(President: ownership is questionable. Some neighbors told me that her daughter is the actual owner but not sure
Treasurer: owner of one unit but she doesn't live in our building.
secretary: tenant)

So, the president do almost everything by herself.

No official meetings, no audit, budget plans nor an election.
-according to CC&R and bylaws, we have to have regular meetings and every year we elect our board members.
--Our current president says we don't have CC&R and she had her position about 10 years in a row.

We have 8 guest parking spaces but some owners pay $150 a month and use them as their extra parking spaces.
-it's been like this for a long time so I didn't even know we had guest parking before someone told me.
--and we don't know if she collects $150 from everybody. She has two extra parking spaces.

We have two small balconies on second floor and third floor. These are common areas for everyone but one of them is used as president's husband's private drawing room. I and some new owners didn't even get the keys for these rooms.

Our building maintenance guy is not licensed. And we always have to go through either president or secretary since he speaks different language.

and again, it goes on and on and on.

I know that I'm whining.

We are going to have a meeting tonight.

I don't want to be a president and don't want to do anything about this since I'm so fed up with those board members and this process.

I just want to sell my condo as soon as possible and move on.

But at the same time, since they are counting on me I don't want to let my them down.

thank you GlenL, TimB4, MelissaP1, and CarolR11.

It's going to be a special meeting for all and it was announced four days ago.

And I think I need to follow your opinion about hiring an attorney for this issue.

Interestingly, our current president told me that I can be a president but she has to be a treasurer.

thanks again for your reply CarolR11.