Current Board Member Is Inelligible!

Started by EdwardC1 • 62 replies • 4759 views

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EdwardC1 (Florida)
Posts: 90

Posted:

Balloting has begun for the "pare down" election (our rules state that because we have 7 people running for 2 seats, we need to have a "pare down" election to eliminate all but 4) and we've just been informed by management that one of the candidates has been ruled ineligible because his name does not appear on the deed. (Our rules require that the name appear on the deed "or other instrument establishing a record title to a Home located within the Community.")

One of the residents decided to check the other candidates AND the current board and found that one of the elected board members was not on the deed of his home at the time he was elected! Since being elected, his wife -- the deed holder -- died, so he may be the legal owner although his name still does not appear on the deed or on the tax records.

I'm asking for opinions as to what we might do. Some choices are to ask to have the candidate reinstated based on prior practice, or we might call the board's attention to the current situation and point out that publicity of this would be embarrassing, or ????

We'd obviously like to get the candidate reinstated.

Thanks.

EdwardC1 (Florida)
Posts: 90

Posted:

On further review, we found a second board member who is ineligible!!! Yikes!!

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Do y'all not have an Election Committee ?

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By JohnB26 on 03/28/2015 12:34 PM
Do y'all not have an Election Committee ?

No. What would they do?

CarolF (Florida)
Posts: 435

Posted:

Edward - in Florida the beneficiary of a Trust is entitled to be on the board if he/she lives in the residence. I do not know if your state has anything similar in their statutes. Is it possible that the property was set up in a trust?

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By CarolF on 03/28/2015 3:45 PM
Edward - in Florida the beneficiary of a Trust is entitled to be on the board if he/she lives in the residence. I do not know if your state has anything similar in their statutes. Is it possible that the property was set up in a trust?

Some of our properties are owned by trusts but the ones I'm talking about are owned by wives.

KerryL1 (California)
Posts: 14,550

Posted:

Good point, CarolF!

An Election Committee, Edward, might be like our Nominations Committee, required by our bylaws, which checks to see if candidates meet the qualifications in our bylaws for candidates.

The only one we have is ownership.

But a "pare down" election? Doesn't that cost time and money, Edward? What is the quorum needed to pare down to four?

What are these "rules--bylaws??" Do they, by chance, conflict with your state laws on this topic?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By EdwardC1 on 03/28/2015 11:40 AM
(Our rules require that the name appear on the deed "or other instrument establishing a record title to a Home located within the Community.")

Can you quote the rule and tell us what document it's in?

Sikubali jukumu. Read all posts at your own risk.

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By KerryL1 on 03/28/2015 4:01 PM
Good point, CarolF!

An Election Committee, Edward, might be like our Nominations Committee, required by our bylaws, which checks to see if candidates meet the qualifications in our bylaws for candidates. The only one we have is ownership. But a "pare down" election? Doesn't that cost time and money, Edward? What is the quorum needed to pare down to four? What are these "rules--bylaws??" Do they, by chance, conflict with your state laws on this topic?

From the bylaws:

A Home Owner shall become a Beneficial Member of the Association by the recording in the Burlington
County Clerk's Office of a deed or other instrument establishing a record title to a Home located within
the Community.

At each meeting of the Members, Members representing twenty-five (25%) percent of the authorized
votes, present in person, by proxy or ballot by mail, shall constitute a quorum for the transaction of
business except where otherwise provided by law.

Any Trustee elected by its Beneficial Members must be a [Beneficial] Member of the Association.

If at any meeting for election of Trustees to the Board, more than twice the number of
candidates to be elected at such meeting are nominated, there shall be two ballots. At the end of the first
ballot, the field of nominees shall be reduced so that there are twice as many candidates as there are
positions to be filled, with the persons receiving the fewest votes being eliminated from the second ballot.

I don't think these rules conflict with NJ law.

Did I miss anything?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By EdwardC1 on 03/28/2015 4:48 PM

"... by the recording in the Burlington County Clerk's Office of a deed or other instrument establishing a record title ..."

Other than a deed, the only thing I can think of that could qualify would be a will that has been recorded in the County's probate office.

Sikubali jukumu. Read all posts at your own risk.

AmandaR2 (South Carolina)
Posts: 566

Posted:

Quote:

Posted By JohnB26 on 03/28/2015 12:34 PM
Do y'all not have an Election Committee ?

Does your HOA have one? (Mine does not.)

AmandaR2 (South Carolina)
Posts: 566

Posted:

Edward, Sorry Just noticed your thread is back on track and your getting some helpful answers please disregard my question you seem to be past that. I apologize for the interruption.

TimB4 (Tennessee)
Posts: 21,062

Posted:

we appoint an election committee each year.

If we there are no volunteers, we typically recruit the spouses of Board members. Yes, we know that that isn't the best. However, we do what we must. It should also be noted that the votes are counted in the annual meeting and anyone is allowed to observe.

MarkM31 (Washington)
Posts: 556

Posted:

I think you're making a mountain of a molehill. The "ineligible" do have "another document" at their disposal. They are married, hence without evidence to the contrary, real property held by one is held by the community of marriage.

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By MarkM31 on 03/29/2015 9:17 PM
I think you're making a mountain of a molehill. The "ineligible" do have "another document" at their disposal. They are married, hence without evidence to the contrary, real property held by one is held by the community of marriage.

My board has decided that a candidate is not eligible and you say I'm making a mountain out of a molehill? Really?

I don't believe that NJ is a community property state.

GlenL (Ohio)
Posts: 5,491

Posted:

May just be easier to amend the By-Laws if they don't require a homeowner vote. Here's how OH worded it in the statutes: (emphasis added)

Every condominium property shall be administered by a unit owners association. All power and authority of the unit owners association shall be exercised by a board of directors, which the unit owners shall elect from among the unit owners or the spouses of unit owners. If a unit owner is not an individual, that unit owner may nominate for the board of directors any principal, member of a limited liability company, partner, director, officer, or employee of that unit owner.

Studies show that 5 out of 4 people have problems with fractions

JohnB26 (South Carolina)
Posts: 1,001

Posted:

I like it

Je publier un degagement de responsabilite. = I publish a release of liability.

idiomatically:

I disclaim liability

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JohnB26 on 03/30/2015 7:01 AM
I like it

Je publier un degagement de responsabilite. = I publish a release of liability.

idiomatically:

I disclaim liability

Knew you would John.

Sikubali jukumu. Read all posts at your own risk.

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By GlenL on 03/30/2015 4:39 AM
May just be easier to amend the By-Laws if they don't require a homeowner vote.

Amendments must be voted on by the Members.

EdwardC1 (Florida)
Posts: 90

Posted:

Today, we all got an email from Management:

"There have been no changes on the current ballot for the 2015 Board of Trustees Election."

In addition, the previously ineligible candidate got an email from Management that said:

Dear [NAME],

The information I furnished you can be found in the master documents. It’s my understanding, that in the history of this community the policy was never implemented from its inception.

As a result, you will remain on the ballot.

We apologize for the inconvenience.

*********

So one of the bylaws is now consider policy??? I think not!

Function of Bylaws
Bylaws define the governing and operational rules of the corporation under which the board of directors and management must operate on behalf of the shareholders. They specify when the board meets, when the shareholder meeting takes place annually, the term of office for board members, who appoints management and other governance matters.

Function of Policies
Policies are set by the board and management to define the operations of the company, such as hiring and firing of employees, sales procedures, customer relations, product return policies, charitable giving policies, employee conduct and other operational matters.

Read more : http://www.ehow.com/facts_5921586_difference-between-bylaws-policy.html

NpS (Pennsylvania)
Posts: 4,216

Posted:

Posted By EdwardC1 on 03/30/2015 10:14 AM
Today, we all got an email from Management:

"There have been no changes on the current ballot for the 2015 Board of Trustees Election."

In addition, the previously ineligible candidate got an email from Management that said:

Dear [NAME],

The information I furnished you can be found in the master documents. It’s my understanding, that in the history of this community the policy was never implemented from its inception.

As a result, you will remain on the ballot.

We apologize for the inconvenience.

*********

So one of the bylaws is now consider policy??? I think not!

Edward

When you started this post you said that you wanted the candidate reinstated. Apparently, they have done that.

Good to see that your board does listen. Maybe best to focus on the outcome.

Remember, your requirements allow a "deed or other instrument establishing a record title." I don't see why you would want to spend money chasing down an interpretation of what that phrase actually means when you have acheived your objective.

Just my opinion tho.

Sikubali jukumu. Read all posts at your own risk.

NpS (Pennsylvania)
Posts: 4,216

Posted:

REDO:

Quote:

Posted By NpS on 03/30/2015 10:36 AM

Edward

When you started this post you said that you wanted the candidate reinstated. Apparently, they have done that.

Good to see that your board does listen. Maybe best to focus on the outcome.

Remember, your requirements allow a "deed or other instrument establishing a record title." I don't see why you would want to spend money chasing down an interpretation of what that phrase actually means when you have acheived your objective.

Just my opinion tho.

Sikubali jukumu. Read all posts at your own risk.

EdwardC1 (Florida)
Posts: 90

Posted:

Yes, you're right. I did say that. However, I think there's a larger issue: can a board disregard bylaws and CCRs to suit themselves?

Who said anything about spending money? We're just investigating at this point.

Thanks for your input.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By EdwardC1 on 03/30/2015 10:52 AM
Yes, you're right. I did say that. However, I think there's a larger issue: can a board disregard bylaws and CCRs to suit themselves?

Who said anything about spending money? We're just investigating at this point.

Thanks for your input.

Spending money means that there can easily be more than one interpretation of what the phrase means - and the next step needed to clarify would be a legal opinion - and that costs money.

Personally, I think that if you achieved your objective, let sleeping dogs lie. If on the other hand, you wanted the 2 sitting board members to resign, that would be a different story. If not, why would you want to divert energy and attention away from things that actually need to be done.

So at the end of the day, if I had to choose between a responsive board and a rules-only board, I would pick the former. There are many here who would make the other choice, but that's because we have different priorities. On thing for sure - there in no such thing as a perfect board.

Sikubali jukumu. Read all posts at your own risk.

MarkM31 (Washington)
Posts: 556

Posted:

I think spending effort to disqualify a Board Member who is a spouse of the individual on title, when it can be shown that the spouse not on title has lived at the home is a loser. Nothing to gain but animosity

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MarkM31 on 03/30/2015 11:49 AM
I think spending effort to disqualify a Board Member who is a spouse of the individual on title, when it can be shown that the spouse not on title has lived at the home is a loser. Nothing to gain but animosity

Well said Mark.

Sikubali jukumu. Read all posts at your own risk.

MarkM31 (Washington)
Posts: 556

Posted:

What's the back story:

1) OCD'ing about the rules for the sake of OCD'ing about the rules?
2) Trying to eliminate candidates because you disagree with them?

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By MarkM31 on 03/30/2015 12:17 PM
What's the back story:

1) OCD'ing about the rules for the sake of OCD'ing about the rules?
2) Trying to eliminate candidates because you disagree with them?

Those are revealing comments. You're obviously a board member, no?
Why do we have CCRs and bylaws? Are they just guidelines or they the letter of the law? Should a board be able to disregard some and enforce others? Why do bylaws have to be amended if the board can just "reinterpret" them?

I never said anything about my wanting to eliminate candidates!

MarkM31 (Washington)
Posts: 556

Posted:

I'm not a board member in any organization right now, but I have been.

I also think that if you attempted relief in the courts, and it was challenged by, for instance, a long time married resident who's name does not appear on the deed for whatever reason, that the courts would uphold his or her candidacy and also chide you for meeting the PITA threshold

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Edward

People questioning BOD eligibility, BOD term limits, etc, should ask themselves a few questions:

1. Are those presently there doing a good job?

2. Are others willing to step forward?

If the answer to #1 is yes and the answer to #2 is no, then one might want to leave it alone.

The name not on the deed but is a spouse of the name on the deed can open a real Pandora's box and could vary from state to state.

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By JohnC46 on 03/30/2015 3:30 PM
People questioning BOD eligibility, BOD term limits, etc, should ask themselves a few questions:
1. Are those presently there doing a good job?
2. Are others willing to step forward?

If the answer to #1 is yes and the answer to #2 is no, then one might want to leave it alone.

The name not on the deed but is a spouse of the name on the deed can open a real Pandora's box and could vary from state to state.

1. Define "good job".
2. In case you haven't been watching :-) we have 7 people running for 2 seats.

In this case, it matters only whether that box is in NJ or not. :-)

JohnB26 (South Carolina)
Posts: 1,001

Posted:

To simplify:

From 'boilerplate' legalese:

Membership is appurtenant to and may not be separated from ownership.

Hence the term: Homeowners Association

Owner = Member ~ Non owner = Bystander

The crux of the issue is HOW the HOA actually determines ownership.

Case in point: Single homeowner gets married, puts spouse on deed at attorney's office, fails to record new deed with register of deeds.

Or a bill of sale transfer goes unrecorded.

Or an, as yet, unrecorded foreclosure.

Y'ALL BE CAREFUL

VERY CAREFUL

EdwardC1 (Florida)
Posts: 90

Posted:

JohnB26,
I quoted the portion of our bylaws that defined ownership.
"A Home Owner shall become a Beneficial Member of the Association by the recording in the XXXX County Clerk's Office of a deed or other instrument establishing a record title to a Home located within the Community. "
Seems pretty clear.
Not sure what you want me to be careful of.

BREAKING NEWS!!! (May be old news)
The board has decided that that definition will not be enforced (at least at this point in time).

So we have nothing to do.
*************
One big problem with the software we are using in this forum is that it does not "thread" messages. Thus, it's difficult to tell when a person responds what that person is responding to (in some cases).

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Then seek an injunction forcing compliance by your BOD.

Or begin the recall process.

Or start campaigning prior to the next election cycle.

TAKE ACTION

or

QUIT WHINING

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By JohnB26 on 03/31/2015 4:58 PM
Then seek an injunction forcing compliance by your BOD.

Or begin the recall process.

Or start campaigning prior to the next election cycle.

TAKE ACTION

or

QUIT WHINING

I have no idea what you're respondinf to!! I came here to find out what experiences other people have had and instead of giving me that information, a few of you have decided that I need to be yelled at. Now if you were here in NJ. I'd know what to do with you. :-) Uh, how do you know that we haven't taken action, pray tell?

Look, John...if you do not have anything to contribute in a positive way, why not just do nothing?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By EdwardC1 on 03/31/2015 1:57 PM

*************
One big problem with the software we are using in this forum is that it does not "thread" messages. Thus, it's difficult to tell when a person responds what that person is responding to (in some cases).

That is why we use quotes.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Uh, how do you know that we haven't taken action, pray tell?

Because you are here bit%&*$g and moaning.

You are free to seek legal redress through the court system.

You are free to attempt a BOD 'recall'.

You are free to elect better directors.

You are free to move on down the road.

You are free to ignore my advice.

MarkM31 (Washington)
Posts: 556

Posted:

Quote:

Posted By JohnB26 on 04/01/2015 6:12 AM

Uh, how do you know that we haven't taken action, pray tell?

This is why when John worked for the State Department his nick-name was "Miss Manners"

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Adlai Stevenson's definition of diplomacy:

"Sending your adversary on a journey to Hell in such a manner that they anticipate the first step with joy in their heart."

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By TimB4 on 03/31/2015 8:39 PM

That is why we use quotes.

"We" apparently doesn't include JohnB from South Carolina! But he did have a good suggestion so I think I will indeed ignore him from here on. Too bad there's no KILL LIST! :-)

JohnB26 (South Carolina)
Posts: 1,001

Posted:

Quote:

Posted By EdwardC1 on 04/01/2015 8:58 AM

Posted By TimB4 on 03/31/2015 8:39 PM

That is why we use quotes.

"We" apparently doesn't include JohnB from South Carolina! But he did have a good suggestion so I think I will indeed ignore him from here on. Too bad there's no KILL LIST! :-)

Thank you !

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By JohnB26 on 04/01/2015 10:00 AM

Posted By EdwardC1 on 04/01/2015 8:58 AM

Posted By TimB4 on 03/31/2015 8:39 PM

That is why we use quotes.

"We" apparently doesn't include JohnB from South Carolina! But he did have a good suggestion so I think I will indeed ignore him from here on. Too bad there's no KILL LIST! :-)

Thank you !

(Now if I could get him to ignore me!! :-)

MarkM31 (Washington)
Posts: 556

Posted:

Poor Eddie

JohnB26 (South Carolina)
Posts: 1,001

Posted:

oh, boo hoo hoo

whining AND crying

KarenC15 (Florida)
Posts: 118

Posted:

We had this problem at our HOA and the ineligible person was elected President by the board and then paid a lawyer to create bylaws stating roommates/renters were eligible to run the HOA. It was never voted on by members, however, so I'm not sure it's legal. In any case, having someone approve assessments and contracts who has no legal, financial interest in your property is probably a very bad idea -- legal or not.

Hatred is contagious, so one should work to avoid it.

JohnB26 (South Carolina)
Posts: 1,001

Posted:

You think ?

D'OH

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By JohnB26 on 04/10/2015 1:44 PM
You think ?

D'OH

Another sage post from JohnB!! And it's "DOH", not "D'OH". :-)

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By EdwardC1 on 04/10/2015 4:29 PM

Posted By JohnB26 on 04/10/2015 1:44 PM
You think ?

D'OH

Another sage post from JohnB!! And it's "DOH", not "D'OH". :-)

Actually, it'e eau de John.

Sikubali jukumu. Read all posts at your own risk.

EricH8 (Virginia)
Posts: 116

Posted:

Quote:

Posted By MarkM31 on 03/29/2015 9:17 PM
The "ineligible" do have "another document" at their disposal. They are married, hence without evidence to the contrary, real property held by one is held by the community of marriage.

How do you determine conclusively that two people are married? Even though they have different last names and do not live in the HOA. Wouldn't you have to check with every county government in every state and in every nation in the world? There's just a mess of difficult questions like this when you buy into an HOA.

EdwardC1 (Florida)
Posts: 90

Posted:

Quote:

Posted By EricH8 on 04/10/2015 7:35 PM

Isn't "community of property" a concept only in states with community property laws (NJ not being one of the)? And doesn't that come in to play when the marriage is dissolved???

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