3 Board members resign

Usually the remaining board members may appoint new members to the board to fill vacancies, but it takes a majority vote. With only two members, a majority is two and since they are now at odds it is not likely that they will fill any of the empty seats. This means the board cannot conduct business due to the lack of a quorum. That may not be such bad news.

Depending on when the next election is, you might want to organize a recall of the two remaining board members as it sounds like neither is fit to serve.

As Larry stated the remaining Board usually has the power to appoint replacements to the Board. You as a homeowner also have the right to gather signatures (check your documents and any state law for requirements) to call for a Special Meeting for a specific purpose i.e. a special election to reconstitute the Board. This of course can be rendered moot if the two remaining directors fill the positions.

If you manage to hold an election, the new Board members can then remove the two children from their offices but not the Board, to do that you would then need to recall them.

Natalie,

Two things:

1st. With a 5 member board, per VA § 13.1-868, a quorum is 3. Therefore, no business may be conducted except the appointing, or calling a meeting to elect, individuals to fill those vacancies. Current contracts are still in force and paying invoices for approved work can (and should) be done. No new contracts, policies, etc. can be done until a quorum exists.

2nd. As Kerry pointed out, it is possible for the membership to fill those positions. This is supported in § 13.1-862. Vacancy on board of directors.

However, a petition for a special meeting would need to be obtained first.

Well, now it becomes interesting, with the use of the one word bolded above, it appears that your documents prevent the members from filling vacancies unless the entire Board is removed. However, the law specifies, under paragraph B, that the members are to fill the vacancy by vote.


I broke this section out to better explain the interesting portion in my answer above.

The law previously cited, specifies that unless the Articles of Incorporation specifies, the members are to be the ones who elect the replacement. However, it would be common for any Board to refer to the Bylaws and say the intent is for the Board to appoint.

This gets into the issue of technicalities and the order of precedence. The technicality is that your governing documents specify how the vacancies are to be filled but it was written in the wrong document, as the law (which has a higher precedence) only defers control to the Articles of Incorporation.

Now, another little twist to the technicality is if you live in a condominium. Typically, with condominiums, the order of precedence for governing documents may change and place the bylaws ahead of the Articles of Incorporation. This is because the Bylaws are recorded as part of the deed and an attachment to the CC&Rs. This can easily muddy the waters on which documents procedure is to be complied with.

My suggestion is to approach the Board and see if they are willing to allow the members to fill the vacancies. If a Board is unwilling to seek a compromise, then you have a few choices:

a) recall the entire board

b) file a complaint with the VA Ombudsman but you must follow internal procedures first. It's all outlined on the on their website.

c) file a complaint directly with the CIC Board which, I found out at a recent seminar, can be done by any member without the need to go through the Ombudsamans office. The ombudsmans process is a review and they can refer it directly to the CIC Board but that doesn't preclude a member from directly asking the CIC Board to take a look at the issue.

d) Courts.

One thing to note is that you need to read your Articles of incorporation.

Our Articles defers control to the Bylaws for filling of vacancies. If yours does the same, then there is no conflict as the law defers to the the Articles which defers to the Bylaws. This would place the Bylaws in control (and the one that must be complied with).

Again, I'm not an attorney and do not work in the legal profession. This is my layperson's opinion based on my experience in researching many government regulations.

Ann,

Board Positions, i.e. Officers, are different than Directors.

Natalie,

The Association is created by the Declaration.

A Corporation, known as HOA, Inc, is created by the Articles of Incorporation and is a separate entity (which is why when the corporation known as HOA, Inc. is dissolved, the Association still exists).

That section you cite simply states that the Corporation, HOA, Inc., has the same authority as the Association (HOA).