Indemnity on non legally elected board members?

I agree that board members should be properly elected by the homeowners, but it would appear that hasn't happened because THE HOMEOWNERS don't bother to attend meetings to participate in the election and/or run for a seat.

Since these are volunteer positions, it seems silly that your CCRs and your state would prohibit the board from appointing people if no one runs for an empty seat. We do that in our community - the appointees usually serve out the term of someone who resigned and then that person can either run to keep the spot or resign and let someone else take over

In any case, the Association can't run itself, so you wind up with the folks who are serving as your "board". And if you're concerned that they may screw up and cost everyone money, and my understanding is if there is no board whatsoever and something bad happens (such as contractors not getting paid because there's no board to authorize payment, review and approve contracts, etc.),EVERY HOMEOWNER risks becoming personally liable for damages. So what choice do you have?

You need to talk to your fellow homeowners and all of you need to get together and call for a formal meeting to either elect a proper board or elect these folks and then discuss current association problems and how to address them. If you want to start by reminding your "board" that following the rules also protects them from potential liability, go ahead.

Our CC&Rs clearly state that if they do not get a quorum at the membership meeting they should call another and the quorum is cut in half (50%+1 to 25%+1). They actually added that because of past problems getting a quorum. Rather than call the second meeting they just appointed who they wanted outside the meeting. After they did that i suggested vote by mail to fulfill the formality of an election (our CC&R's do not forbid that). That's when they told me to my face that they would not go through that "dog and pony show". It's not that they COULDN'T do a proper election, they WOULDN'T. Lack of participation is not a reason to ignore the rules, that's not in our CC&R's or state law. Then they repeated that process for 2 more years and i kept my mouth shut because it was much easier for my peace of mind

Just like homeowners can't pick and choose how/when to follow the CC&R's, the board can't either.

Anyway, I don't care who is on the board (they aren't doing anything anyway) and I'm by no means a troublemaker, loudmouth looking for fight. I just don't like that they are not following the process and it could come back to bite us, and I'd like it resolved. I could go around and generate the support through the other homeowners (and be a loudmouth troublemaker...), but I'd really rather just go to the board and say this is what you are supposed to do and this is why, and hopefully they do the right thing.

Or am I all wrong and this violation of how we elect board members is no big deal and I should just let it go?

I don't think you're a troublemaker - you're simply trying to ensure things are being done decent and in order. It would appear your board is being lazy and/or they don't want to give up their position. It's so much easier and faster to do whatever the hell one wants than having to be accountable to pesky homeowners or other people who ask things like "why are you doing X when Y section of the CCRs say you can't?"

You're not wrong in being concerned and you should go to the board and tell them your concerns. It would be nice if they agreed and did the right thing, but it sounds like you tried that and the response came down to "calling for an election, and printing ballots and having people stand up and say why they want to replace us (oh, the horror!) is too much dame trouble. Besides, no one else is complaining, so what's your issue????"

That response tells me it's time to bring the other homeowners in because unless and until all of you hold them accountable, the higher your risk these folks screw up and put your quality of life and pocketbook at risk. They may call you a loudmouth, but it would be awfully cheeky of them to see that to several dozen people. There's always strength in numbers.

Sometimes, it's necessary to raise some hell to get things done and it may be others feel the same way you do and are just waiting for someone to stand up - and that someone may just be you, otherwise, things will go on as they have for the last three years. It's just a matter of how badly you want change and what you're willing to do to make it.

Thanks for the advice.

Like I said, they aren't doing anything. No one is getting violation letters, they aren't enforcing anything or spending money... no one cares so no one will get excited. The only people on the board are the ones that wanted the job so no real controversy.

I think for my peace of mind it's best to just do nothing. In the event they do something stupid, I'll bring up that they aren't really board members and use it then.

Still curious on opinions if indemnity covers them though? They are willfully violating the law/cc&r's.

What do you care if it does or does not? It will effect them if they get sued. It just means that their personal assets are on the line. Seems to me if they know this, then they would do a "Proper" election. Howevder, possession is 9/10ths of the law and they possess the position.

It is true that anyone who wants involved in their HOA is ON the board or makes an effort to be. Being in a HOa is beyond writing up violations and collecting money. If you are so concerned there is room for an ACC committee for you to do it. Do not have to be on a board for that. Just volunteer to do it.

Who exactly are you going to contact on this "illegal" election? The police or the court? Suing your HOA is suing yourself and your neighbors... And for what an election of people who are already volunteering to work as a board? You know how we elected people on our board? Who ever raised their hand at the yearly election meeting. You attended the meeting and popped your hand up, you were elected.

Your HOa is NOT made of proffessionals. They are just volunteers who only qualification is to be a homeowner. Your board may not have alot of money to even spend on anything outside of bills. A HOA is ONLY funded by its members for its members.

Also keep in mind a HOA can NOT randomly issue fines or violations. there has to be a fine schedule and the power to fine. Plus fines can not be the basis of liens in many cases. So when you volunteer in your HOA, you may want to read your documents to know what counts as a violation and what can be done about them.

I find many people have fantasy HOA in their mind when complaining or finding illegal things about their HOA. When they actually do the work to make changes and be involved, they find it is nothing like the fantasy. Many of us regular posters here have done the legwork and changed our HOAs for the better. It wasn't because we complained about the lack of what our HOA did. It was because we worked toward the HOa working for us.

Daryl

As Tim said. It is not uncommon nor improper, nor illegal, etc. for people to remain in their BOD positions when election criteria (quorums etc.) were not met.

I am not justifying it. I am just saying that, like what they do or not, they might well be the legal BOD.

Trying to question or remove them based on legalities, believes, suppositions, what ifs, etc. can be long, drawn out, expensive, frustrating, and not successful. I say work on recalling/replacing within your Covenants/Bylaws. It will take effort and time, not just wishing so. Last time I was involved in such it took a lot of effort and two election cycles for us to do so.

Stop playing lawyer. Work to replace them.

Thanks again for the replies. One thing that I may not have been clear on, it's not just that existing board members have stayed on. Board members have resigned at the end of their term and in mid term, and have been replaced. I firmly believe not holding an election is willful negligence because they have a procedure to follow if they don't get a quorum, and they know about it because I told them about it. They are actively choosing to ignore it and do their own thing.

If a homeowner willfully ignored the CC&R's because it was inconvenient they'd be jumped on and fined. Why is it okay for the board to willfully ignore the CC&R's?

As to the comments about suing myself, and who i'd bring it up to... Just an example, there are a few people in our community pushing to make it a gated community, which would cost a lot of money. I don't want to live behind a gate and I really don't want to pay for it. In that situation I'd rather sue the HOA/myself as the attorney fees are preferable to the gate. And I'm not a legal expert, but the first thing I'd do is contact the state attorney general and if that's a dead end i'd hire an HOA attorney. No I would not call the police...

But like i said from the beginning, the hope was that if I could tell them they lost indemnity coverage because they failed to follow their own rules, maybe that would scare them into following their own rules. that's all I really want.

Daryl

It is vey common when a Director resigns that the BOD names a replacement. As to how long (until next election or fill the term out) will be dependent on the Bylaws. In many cases they do not even have to appoint someone.

Tough love here but it seems you have several things you disagree with but it seems you are not sure the proper procedure to change, modify, recall, elect, etc. I believe you need to become more familiar with your association's docs.

Daryl,

Your question about indemnity seems to be tied to a belief that the board is not legitimately elected. That is, because the board members assumed power without the proper procedures they cannot use the shield of immunity if sued.

I disagree with your conclusions.

If a non-member were to sue, he would have no standing whatsoever to argue that the board members were not lawfully elected. That is an internal matter and a non-member has no lawful means of challenging the directors’ status.

If a member were to sue, he would have standing to argue that the board members usurped the power of the association by declaring themselves to be the board without an election. The fatal problem with this argument is that no one has made any meaningful challenge to the board members’ assertion of leadership. No one has circulated a petition to call for an election. No one has sought to recall the members. No one else claims to be a duly elected board member. Rampant apathy has constructively confirmed the board members assumption of the helm.

This does not mean that the board members could never be held personally liable under any circumstance. All I am saying is that there are no grounds for anyone to assert that the board members are personally liable solely because they were not elected according to the law.