Ohio - Our associate has no board

Forgive me if this is a duplicate of a question that is buried elsewhere in this forum. First, some background on our HOA situation:

Our by-laws require three board members which is expandable to five. There must be four primary officers: President, vice president, secretary, and treasurer. Since I have lived here in 2006, there has only really been a president. Our by-laws require that the president be on the board, so this means we've only had one out of three board members.

Fast forward to now: Our HOA president moved at the end of last September. He announced in advance that he was leaving and gave all 20 of us the opportunity to fill his position. No one responded. A week or so after he moved, I emailed all association members advising that I would run for president, after which I will move to appoint other board members or give the community a chance to elect the board members. No one has responded. Not a single person is interested in any of the goings on within our HOA.

What do I do? Others have said that I need to look at the by-laws, but neither the by-laws nor the ORC address what to do if there is no board. We have no body of authority at this point to appoint anyone and no one's interested in fixing this. If there's some law somewhere that gives one person the power to claim a vacant spot on the board in lieu of community interested, I'd love to know about it.

Ron, time to have a come to Jesus meeting or email as the case may be with your fellow homeowners. If no one is willing to step-up, tell them that you will petition the Court to appoint a Receiver to manage the property. Doing this will immediately cause their assessments to rise because they get the pleasure of paying the Receiver's fees including whoever s/he hires to watch over the day to day operation. During this time they will have zero input into how the assessments are spent. The Receiver will remain in place until enough homeowner's convince the Court they are willing and able to step-up.

When they complain that you don't need to do that remind them that if you don't, the first vendor that doesn't get paid can and probably will. Then you might mention that if anyone were to be hurt or killed on any of the common elements even if they are miniscule and the insurance isn't in place, each and every homeowner can be sued by the injured party.

Sounds good Larry but that doesn't get him the other two directors required not only by his CC&Rs but by statute:

1702.27 Number and qualifications of directors - ex officio directors - provisional director.

(A) Except as provided in division (B) of this section and section 1702.521 of the Revised Code:

(1) The number of directors as fixed by the articles or the regulations shall be not less than three or, if not so fixed, the number shall be three, except that if there are only one or two members of the corporation, the number of directors may be less than three but not less than the number of members.

Plus I've always heard that a person could not fill the position of president and treasurer at the same time.

We may be facing the same soon. No one will step up and I am approaching my term limit in a little over 1 year.

Thanks Glen this is a question I have been wondering about for quite some time.

Ron,

First, I think you are confusing Officers and Directors. Directors are typically elected by the membership and make up the Board of Directors. Each Director has one vote they may cast for any issue that comes before the Board.

Officers are typically appointed by the Board of Directors and perform the day to day tasks of the Association (collecting assessments, overseeing contracts, etc.). Normally, the Directors also serve as Officers. When this happens, that individual is actually performing two jobs. Sometimes, a Board may appoint someone other than a seated Director to an Officer position or even hire someone to serve as an Officer. Since this is possible, many Associations require that key Officer positions are also filled by a Director.

As for what can you do, I went through the lack of volunteers a few years ago. Here is a link to the threads when I had that issue:

Subject: Seeking advice on how to handle this issue

Subject: Update to Seeking advice on how to handle this issue thread

as a f/up I am quoting an OHIO attorney and association insurance expert:

"The manager works for the board. The board is a group of individuals that manages the association by setting policy and making decisions as a "board." The board as a group has authority. You as an individual have a "vote"; you do not have any additional authority as an individual board member unless the "board" votes to direct you to carry out a task. The board is authorized to hire a manager to do what the board directs it to do pursuant to a written management agreement. It is not your role as an individual board to micro manage the manager. If the manager is not operating satisfactory for what he or she is hired to, the board should evaluate his or her performance under the contract. Too many board members do not truly understand their role. The board has no authority to do anything outside a properly noticed board meeting unless directed by the entire board, end of story. If the individual acts outside of the board meeting without instruction, they are not covered by the indemnity protection of the governing documents or the directors and officers liability. If you exceed your authority, do so at your own risk! "

so what ? you are in CA anyway....move on

I can't help but be curious, Susan. Are on the Board of your OH or FL HOAs or on any of their board-approved committees?

I am not surprised you are curious, Carol1R11 of California, right ? but I would not publish here. Don't know if you can reply privately on this site like in other real networks, where lunatics like the man in AZ would be banned. I thought you guys were all ADULTS without the need to have others "defend" you, as if OPs were mentally handicapped.

That is to show what a reckless clown you are, Larry from AZ. You are offering legal advice here. Plain and simple. You claim to be a lawyer in AZ (which I doubt but I will you the benefit of the doubt.) I very much doubt, however, that you are licensed in Ohio. Learn to shut up in matters outside of your state. You have no clue what the OP's Declaration says nor what Ohio laws require.

Register this all of YOU: UPL is not just about claiming to have a law degree or claiming you can practice in another state when in fact you cannot. UPL is much broader and covers several scenarios. Each state has its own rules regarding UPL.

Melissa, this site has been around for many years, long before you joined. Get real woman !!

All,

I think Susan caught one thing that others may have missed.
Ron, the original poster, gives the impression that he is not a member of the Board. If this impression is correct, then Ron has no standing to assume the duties of the President. Had he spoken up prior to the old President leaving, that individual could have appointed Ron to the Board (which would have given him standing).

Ron, expecting that your Association is incorporated as a non-profit (most are but check to be sure), Ohio NONPROFIT CORPORATION LAW would apply. Per OH 1702.28, a director remains in office until their successor is elected or they resign. Therefore, if you the individual who was serving as President didn't actually resign, they would technically still be in office (unless you have a qualifier that Directors also be members of the Association). If this is the case, contact him and have him appoint you to the Board. This would then give you standing to assume the duties of the President and hold your meeting.

Now, with all of that said, if you are not on the Board and simply assume the duties on your own, there is a risk of any decisions you make could be overturned by a court of law if challenged.

When I had my issue, I was legally elected to the Board and therefore had standing to take various actions. If you are not currently serving as a Director, you do not have the authority I did.

For Susan's sake, you should know that I am not an attorney and I do not work in the legal profession. I am offering advice and opinion based on what you post, personal experiences, any research I have done and, hopefully, some common sense.

Hope this helps,

Tim

@Susan,

If this is the issue you saw and were eluding to when you said that the individual should contact an attorney, why didn't you just say what the issue was rather than going off about unauthorized practice of law?

Carol,

Don't hold your breath waiting for an answer. Since Susan came onto this site a few days ago she has held herself out to be some sort of association authority with "national credentials." She offers no clue as to what those credentials may be and evades giving any direct answers.

Susan also holds herself out as some sort of authority on association law, especially Ohio law. Her suggestions, however, are pure nonsense. In this thread she suggested dissolving an association as if the condo could operate without one. In one statement she accused the OP of trying to bully his way into control of his association and later denied ever saying it.

Susan stated that she lives part of the year in Florida. This suggests that she is retired and that, in turn, suggests that she is past retirement age. When my own mother, who also lived in Ohio, reached that age, she developed a number of delusions that were coupled with senile dementia. One of those delusions was that she was going to be appointed to be a federal judge, even though she had no legal background. When we asked for specifics my mother always gave us some evasive response. Of course, I do not know Susan or her circumstances but I see a lot of similarities between my late mother's behavior and Susan's.

don't you wish, clown from AZ ? I am not even in retirement age. In my books, you are a fraud and scare that your scheme on this site have been blown up in smoke.

Thanks Tim for bringing some common sense to what otherwise looks like a comedy of errors. All these people jumping in with nonsensical diatribe. I am quoting the original post here about Ohio. As they say, 4 eyes see better than 2.

"Fast forward to now: Our HOA president moved at the end of last September. He announced in advance that he was leaving and gave all 20 of us the opportunity to fill his position. No one responded. A week or so after he moved, I emailed all association members advising that I would run for president, after which I will move to appoint other board members or give the community a chance to elect the board members. No one has responded. Not a single person is interested in any of the goings on within our HOA."

The OP has the obtruse rationale to assume that he can proclaim himself President, and the lunatic from AZ tells him he can stay as President. This man, Larry, claims to be a lawyer in AZ, NOT Ohio. Go figure !! That is why I brought up UPL.

PS. Susan, grow up. Did I demand your credentials ? I know this business inside and out, more than you could ever dream to know. Don't believe me ? That is your problem. Don't waste any sleep over it though :-)

I was thinking exactly the same thing, Richard!

JonD must be on vacation in Ohio... LOL! :-)

Hah! Why am I not surprised? The land of Jerry Springer, Simon Leis, Charles Keating, and John Boehner.

I was born there. Graduated from Colerain HS. I left as soon as I could, before the local water rotted my brain cells and turned me into a Zombie Republican.

Oh, BTW, JonD says he's going with me to Florida next month so he can meet Gov Scott with whom I have a lunch date in Tallahassee (never heard of the FL capital ??...it is close to the Alabama border) L O L

Yeah, haven't seen Boehner at the Bravo in West Chester for awhile. He's too busy in DC these days...

What I saw was a member concerned over how his Association will run with nobody at the helm. He stepped up and volunteered. He sent out letters asking if there was objection.

Yes, that is not the proper way it should be done. It appears the OP wasn't sure it was the proper way either, so he searched the net, found this site and asked.
That doesn't make him obtuse (interesting that you chose to use that word).

It makes him a concerned member who is trying to do the right thing.

Ron, As I pointed out, the proper method would be to become appointed to the Board from the current board member. Perhaps there is a board member named but inactive.

If not, the another option, without utilizing the courts, would be to have a petition signed for a general membership meeting for the purpose of electing a new Board. This is authorized under OH 1702.17 and only requires 10% of the membership.


First, I believe that Larry was of the impression that the OP was already a Director (I know I was). Based on this impression, Larry's advice wasn't bad.

Even if Larry didn't have that impression, he was likely being realistic. The reality of it is that if nobody is stepping forward, then it's likely nobody will challenge the issue. The risk and legality of the issue (actually for any issue) is if/when someone challenges a decision, action or inaction.


Actually, he never claimed to be an attorney. He posted that [emphasis added] he "practiced law on his own behalf." This means that he represented himself, not that he is an attorney. I can see the misunderstanding for new members of this site. However, for those who have been on this site for awhile, Larry has made this clear in past posts.

BTW, Larry made that statement after you brought up the unauthorized practice of law issue.


The issue is certainly a valid concern. Personally, I take the comment as a warning of concern. However, others may take a more defensive stance on it.

If one chooses to look, there are plenty of references stating that legal advice is not given. In fact, the first post on the thread "how we give advice here" (which is pinned to the top of the forum) states very plainly that we are not Lawyers.

As I've stated in the past, the best we can do is provide advice based on the information contained in the posting, personal experiences and any research we have done. If any of those things change, the advice given can change (as easily demonstrated in this thread).

The individual asking for the advice is free to accept all, some or none of the advice or opinions offered. I prefer the advice that includes links or references that shows the basis of their advice. That way, I can read that same information and see if I have the same conclusions.

There are consequences with every decision. The consequences are both intended and unintended. All anyone offering advice can do is point out as many of the unintended consequences as possible so the individual can make an informed decision. I've found that when informed decisions are made, they are usually the correct decisions.

Tim,

Just to clarify things. I was never under the impression that Ron, the OP, was already on the board. My suggestion that he declare himself to be president and then hold an election was based on the appearance that 1) the only board member and officer was no longer a member of the association and 2) the other owners were apathetic toward their association. Holding an election would give any challengers the opportunity to step forward and ask for votes. This was offered as a pragmatic alternative to spending thousands of dollars and months in court seeking a judicial solution that would ultimately yield a similar result. My belief was and is that if no one objects to Ron's assumption of office and no one challenges him in an election that it is unlikely that anyone with standing would object by filing an action in court.

Larry, small world. My first wife was a graduate of Colerain HS, me I was from Mt. Healthy. And just to bring it all home she died in Alabama after leaving Florida.
Want me to ship you some Camp Washington chile?

BTW Leis finally retired and there is a new sheriff in them there parts.

I know the airport was there but I don't really remember it. They tore it down when I was a freshman to build Northgate Mall. The mall I remember.

Ron the ORC is silent on this, guess they didn't envision it when they wrote it. Take your three people and form your BOD, elect the officers and run the association.

Who has control of the COA's bank and reserve accounts? If the former president is still listed as a signer, get him off the accounts. If the day to day operation is too much then hire either a management company or other professionals to handle what you can't.

In addition to your CC&R's you are also governed by ORC5311 (http://codes.ohio.gov/orc/5311) so you need to make sure you comply with them also. Pay special attention to the section on reserves. 5311.081

(1) Adopt and amend budgets for revenues, expenditures, and reserves in an amount adequate to repair and replace major capital items in the normal course of operations without the necessity of special assessments, provided that the amount set aside annually for reserves shall not be less than ten per cent of the budget for that year unless the reserve requirement is waived annually by the unit owners exercising not less than a majority of the voting power of the unit owners association;

I agree with Tim's assessment of the updated situation. Unless the Pres is technically still in office and formally appoints new directors, Receivership may be the only sensible route left.

What Glenn proposes sounds like "risky business." You can't just change the signature cards of a corporation/association bank account without providing proof usually in the form of approved Minutes signed by the Secretary. Minutes are official records.

"Read my lips" : self-managed associations will soon be a thing of the past.