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JamesC32 (California)
Posts: 20
Posted:
In our continuing saga of one board member and officer (Sam) who values control..., Sam is planning on selling his unit, thus making him ineligible to be on the BOD. He remarked to an owner that he plans to keep his BOD position by getting his sister (who owns another unit) to give Sam power of attorney over her unit, thus turning him into? an owner eligible for the BOD.

Anyone ever heard of this move? I can't find any explicit info on it anywhere.
SheliaH (Indiana)
Posts: 6,964
Posted:
I did a quick Google search (there IS stuff out there, just type in power of attorney HOA). The answer may be in your bylaws, but consult an attorney to be certain. One article said if HOA bylaws require a participant to be an owner in the community, they group the POA granted by the hiring members. At least that's the way a California court saw it - here's the link - http://journal.firsttuesday.us/does-power-of-attorney-trump-hoa-bylaws-excluding-non-owners-from-participating-in-meetings/26226/

If people know this guy is a control freak, why on earth would they elect him or the board appoint/reappoint him to the board, especially if it appears he's trying to do an end run around the rules? Maybe you should put that question to the board - you don't have to name names, but perhaps raise is as a "what if". If the guy is stil on the board, he'll know at least one person's on to him - could get interesting.


If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By JamesC32 on 04/11/2016 10:15 AM
In our continuing saga of one board member and officer (Sam) who values control..., Sam is planning on selling his unit, thus making him ineligible to be on the BOD. He remarked to an owner that he plans to keep his BOD position by getting his sister (who owns another unit) to give Sam power of attorney over her unit, thus turning him into? an owner eligible for the BOD.

Anyone ever heard of this move? I can't find any explicit info on it anywhere.


Giving Sam a POA doesn't make him an owner - So he won't qualify.

POA is like a proxy. It gives B the right to act on A's behalf.

But most state's HOA statutes won't allow a director to vote by proxy under any circumstances.

So don't understand why Sam thinks that he can create a right to act by proxy from his sister.

Sister could add Sam to title on her property which would make him eligible, but without ownership, not legit IMO.

Sikubali jukumu. Read all posts at your own risk.
NpS (Pennsylvania)
Posts: 4,216
Posted:
CORRECTED:

Quote:
Posted By NpS on 04/11/2016 10:43 AM
Posted By JamesC32 on 04/11/2016 10:15 AM
In our continuing saga of one board member and officer (Sam) who values control..., Sam is planning on selling his unit, thus making him ineligible to be on the BOD. He remarked to an owner that he plans to keep his BOD position by getting his sister (who owns another unit) to give Sam power of attorney over her unit, thus turning him into? an owner eligible for the BOD.

Anyone ever heard of this move? I can't find any explicit info on it anywhere.


Giving Sam a POA doesn't make him an owner - So he won't qualify.

POA is like a proxy. It gives B the right to act on A's behalf.

But most state's HOA statutes won't allow a DIRECTOR to vote by proxy under any circumstances.

So don't understand why Sam thinks that he can create a DIRECTOR'S right to act by proxy from his sister.

Sister could add Sam to title on her property which would make him eligible, but without ownership, not legit IMO.


Sikubali jukumu. Read all posts at your own risk.
KerryL1 (California)
Posts: 14,550
Posted:
I agree with NpS, James. POA is not ownership. Meantime, if Sam is such a jerk, why does your Board appoint him as an officer?? Or keep him as an officer??
RichardP13 (California)
Posts: 3,868
Posted:
I had the same situation in my former HOA. A Board member was on due to a quitclaim deed. I don't believe they establish ownership, but Kerry's favorite law firm/website said no problem.
KerryL1 (California)
Posts: 14,550
Posted:
Does my favorite reference cite case law or what, Richard? If someone actually quitclaims property to me, aren't I the Owner? In any case, quit claim deeds and POA are two very different things, right? And the OP asked about POA...
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By KerryL1 on 04/11/2016 2:10 PM
Does my favorite reference cite case law or what, Richard? If someone actually quitclaims property to me, aren't I the Owner? In any case, quit claim deeds and POA are two very different things, right? And the OP asked about POA...

There is no case law, just someone's opinion. BTW, the quitclaimer has no obligation to the mortgage company or the HOA to pay the mortgage or the assessment. Think about that.
JamesC32 (California)
Posts: 20
Posted:
this is - sadly - an often heard situation where owners are just not that interested in what's happening if they're not part of the Board. Some version of it doesn't affect me directly in this instance, or I'm not wanting to get involved, or...
KerryL1 (California)
Posts: 14,550
Posted:
You're on the board, right, James? Or Not? Do you know what the Board appoints the jerk as an officer??????
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By RichardP13 on 04/11/2016 2:01 PM
I had the same situation in my former HOA. A Board member was on due to a quitclaim deed. I don't believe they establish ownership, but Kerry's favorite law firm/website said no problem.


Interesting.

D-S provides case law to support an argument that only an owner may attend a board meeting; an owner's attorney may not attend in place of the owner. Since a POA appoints someone to act as an attorney-in-fact, I cannot imagine why the courts would prevent a real attorney from attending a meeting while allowing a pretend attorney to not only attend but to sit on the board.

See: SB LIBERTY v. ISLA VERDE ASSOCIATION, (2013) 217 Cal.App.4th 272 at
https://www.davis-stirling.com/tabid/4032/Default.aspx#axzz2aOyLfegU

I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed. Despite the laws, there are an incredible number of properties transferred with quitclaim deeds. A person who has acquired an interest in real estate through a quitclaim deed will find himself in a bind should he try to obtain a mortgage or sell the property through a realtor; he will need to file a quiet title action in superior court to obtain a clean title.

NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By LarryB13 on 04/11/2016 6:16 PM
I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed.

No such prohibition on quitclaim deeds in many Eastern states.

Of course, title insurance won't be available.

Sikubali jukumu. Read all posts at your own risk.
DouglasK1 (Florida)
Posts: 2,046
Posted:
Quote:
Posted By LarryB13 on 04/11/2016 6:16 PM
Posted By RichardP13 on 04/11/2016 2:01 PM
I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed. Despite the laws, there are an incredible number of properties transferred with quitclaim deeds. A person who has acquired an interest in real estate through a quitclaim deed will find himself in a bind should he try to obtain a mortgage or sell the property through a realtor; he will need to file a quiet title action in superior court to obtain a clean title.

I'm far from an expert on quitclaim deeds, and this may vary by state, so take this with a grain of salt. My understanding of a quitclaim deed is that someone grants whatever interest they have in a property to another, without any guarantee that the title is clear. I did some searches on my county property appraiser web site and found a variety of properties that had ownership changes via quitclaim deed. Over half of my small sample were cases where there had been two owners and after the quitclaim only one of the owners was listed, this is the case listed above. These might be because of divorce, death, and other relationship breakups, but there is nothing to say for sure. On the other hand, there were a significant number where the new owner listed was a different party than the conveying owners. In quite a few cases, one of the parties was a corporation or trust, I don't know if that is significant. In any case, after the quitclaim deed, the new owner shows up on the property appraiser site as the owner, and that would be enough for us to consider someone a member of the HOA. That person may not have clear enough title to get title insurance or a mortgage, but they are the owner of record as far as we are concerned.

Escaped former treasurer and director of a self managed association.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By DouglasK1 on 04/11/2016 7:24 PM
Posted By LarryB13 on 04/11/2016 6:16 PM
I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed. Despite the laws, there are an incredible number of properties transferred with quitclaim deeds. A person who has acquired an interest in real estate through a quitclaim deed will find himself in a bind should he try to obtain a mortgage or sell the property through a realtor; he will need to file a quiet title action in superior court to obtain a clean title.


I'm far from an expert on quitclaim deeds, and this may vary by state, so take this with a grain of salt. My understanding of a quitclaim deed is that someone grants whatever interest they have in a property to another, without any guarantee that the title is clear. I did some searches on my county property appraiser web site and found a variety of properties that had ownership changes via quitclaim deed. Over half of my small sample were cases where there had been two owners and after the quitclaim only one of the owners was listed, this is the case listed above. These might be because of divorce, death, and other relationship breakups, but there is nothing to say for sure. On the other hand, there were a significant number where the new owner listed was a different party than the conveying owners. In quite a few cases, one of the parties was a corporation or trust, I don't know if that is significant. In any case, after the quitclaim deed, the new owner shows up on the property appraiser site as the owner, and that would be enough for us to consider someone a member of the HOA. That person may not have clear enough title to get title insurance or a mortgage, but they are the owner of record as far as we are concerned.


My understanding of quitclaim deeds is that they are meant to allow one of several owners of real estate to surrender his interest to one or more of the other owners. I think one reason so many quitclaim deeds are recorded is that the mailbox stores sell pre-printed packages of quitclaim deeds. They have no forms for just plain deeds, warranty deeds, or special warranty deeds. I also think there are many people who think that a pre-printed typeset form is somehow more official than a form they draw up themselves on their own computers. But that is just a guess.

I do not think that an HOA should be in the business of adjudicating property claims. As defective as a deed may be, the association should accept any recorded deed as legitimate until directed otherwise by a court. Any disputes over the validity of a deed should be between the parties claiming the property and not with the HOA.

RichardP13 (California)
Posts: 3,868
Posted:
James

A POA doesn't make an outsider a owner, thus allowing them a chance to serve on a BOD. There is a new law, that took effect January 2, 2015, that allows homeowners to be represented by an attorney at their Internal Dispute Resolution hearing.

Years ago, I quit claimed my interest in my home to my ex-wife during divorce proceedings. I was still on the hook for the mortgage, until it was refinanced. For a HOA, a quit claim should be treated as a worthless piece of paper, IMO.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By NpS on 04/11/2016 7:15 PM
Posted By LarryB13 on 04/11/2016 6:16 PM
I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed.

No such prohibition on quitclaim deeds in many Eastern states.

Of course, title insurance won't be available.


Quitclaim deeds are not prohibited in Arizona; the statutes even provide a model to follow for writing your own.

The problem is that they are used improperly, mostly by do-it-yourself sellers who find these pre-print forms at the mailbox stores. The problems start when the buyer, maybe years after the sale, tries to obtain some sort of mortgage or loan against the property.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By LarryB13 on 04/11/2016 11:43 PM
Posted By NpS on 04/11/2016 7:15 PM
Posted By LarryB13 on 04/11/2016 6:16 PM
I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed.

No such prohibition on quitclaim deeds in many Eastern states.

Of course, title insurance won't be available.


Quitclaim deeds are not prohibited in Arizona; the statutes even provide a model to follow for writing your own.

The problem is that they are used improperly, mostly by do-it-yourself sellers who find these pre-print forms at the mailbox stores. The problems start when the buyer, maybe years after the sale, tries to obtain some sort of mortgage or loan against the property.


If it's not prohibited, then I suspect that you should revise your statement that it's not a conveyance. If the grantor had rights, those get conveyed. If not, no.

But getting back to the OP's issue, here are my thoughts:

1. Each unit owner is entitled to vote and to sit on the board;

2. If there's only one person who claims these rights and her name is on the deed, then a quitclaim deed is good enough for us;

3. If more than one person claims the right to vote and sit, we'd look to the state statute on multiple people claiming voting rights for guidance.

My point is that I don't think we have the right or responsibility to decide the "quality" of the deed.

I would apply the same thinking if the deed was in the name of a corporation or trust, but no individual names on the deed. We have statutes saying that even though an individual's name is not on that deed, an individual can vote when there's corporate/trust ownership - so I figure that person can also serve on the board. When that person steps forward to vote or be elected, our board would accept a piece of paper (maybe as little as a letterhead and a signature that we have no way to verify) saying that she has the voting/sitting rights. We aren't going to dig into trust or corporate documents to validate the request - and especially not if only one person is stepping forward.

Sikubali jukumu. Read all posts at your own risk.
NpS (Pennsylvania)
Posts: 4,216
Posted:
CORRECTED:

Quote:
Posted By NpS on 04/12/2016 4:35 AM
Posted By LarryB13 on 04/11/2016 11:43 PM
Posted By NpS on 04/11/2016 7:15 PM
Posted By LarryB13 on 04/11/2016 6:16 PM
I do not know about California, but in AZ a quitclaim deed is not a deed of conveyance. I can surrender my interest in real estate by quit-claiming to another person whose name is already on the deed but I cannot convey my interest to a third party via a quitclaim deed.

No such prohibition on quitclaim deeds in many Eastern states.

Of course, title insurance won't be available.


Quitclaim deeds are not prohibited in Arizona; the statutes even provide a model to follow for writing your own.

The problem is that they are used improperly, mostly by do-it-yourself sellers who find these pre-print forms at the mailbox stores. The problems start when the buyer, maybe years after the sale, tries to obtain some sort of mortgage or loan against the property.


If it's not prohibited, then I suspect that you should revise your statement that it's not a conveyance. If the grantor had rights, those get conveyed. If not, no.

But getting back to the OP's issue, here are my thoughts:

1. Each unit owner is entitled to vote and to sit on the board;

2. If there's only one person who claims these rights and her name is on the deed, then a quitclaim deed is good enough for us;

3. If more than one person claims the right to vote and sit, we'd look to the state statute on multiple people claiming voting rights for guidance.

My point is that I don't think we have the right or responsibility to decide the "quality" of the deed.

I would apply the same thinking if the deed was in the name of a corporation or trust, but no individual names on the deed. We have statutes saying that even though an individual's name is not on that deed, an individual can vote when there's corporate/trust ownership - so I figure that person can also serve on the board. When that person steps forward to vote or be elected, our board would accept a piece of paper (maybe as little as a letterhead and a signature that we have no way to verify) saying that she has the voting/sitting rights. We aren't going to dig into trust or corporate documents to validate the request - and especially not if only one person is stepping forward for that particular unit.


Sikubali jukumu. Read all posts at your own risk.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By NpS on 04/12/2016 4:43 AM
If [a quitclaim deed is] not prohibited, then I suspect that you should revise your statement that it's not a conveyance. If the grantor had rights, those get conveyed. If not, no.


ARS 33-402 describes four deed types. One may convey, convey and warrant, mortgage, or quitclaim. There is no quitclaim deed of conveyance set forth in the statutes.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By LarryB13 on 04/12/2016 6:41 AM
Posted By NpS on 04/12/2016 4:43 AM
If [a quitclaim deed is] not prohibited, then I suspect that you should revise your statement that it's not a conveyance. If the grantor had rights, those get conveyed. If not, no.


ARS 33-402 describes four deed types. One may convey, convey and warrant, mortgage, or quitclaim. There is no quitclaim deed of conveyance set forth in the statutes.

Gotcha. Has to do with specific language used in AZ statute and forms.

Other states don't necessarily use the same language.

Using more common language, if A conveys and warrants RE to B and then B quit claims that RE to C (for whatever reason) - I would say that C now owns whatever A owned. RE was conveyed (a.k.a. transferred) from A to B to C.

Sikubali jukumu. Read all posts at your own risk.
NpS (Pennsylvania)
Posts: 4,216
Posted:
Quote:
Posted By NpS on 04/12/2016 7:06 AM
Posted By LarryB13 on 04/12/2016 6:41 AM
Posted By NpS on 04/12/2016 4:43 AM
If [a quitclaim deed is] not prohibited, then I suspect that you should revise your statement that it's not a conveyance. If the grantor had rights, those get conveyed. If not, no.


ARS 33-402 describes four deed types. One may convey, convey and warrant, mortgage, or quitclaim. There is no quitclaim deed of conveyance set forth in the statutes.

Gotcha. Has to do with specific language used in AZ statute and forms.

Other states don't necessarily use the same language.

Using more common language, if A conveys and warrants RE to B and then B quit claims that RE to C (for whatever reason) - I would say that C now owns whatever A owned. RE was conveyed (a.k.a. transferred) from A to B to C.


Example: In PA, we can Warranty Deeds, Quit Claim Deeds, and Deeds of Trust. The word "conveyance" doesn't have any special attachment to one form of transfer or another.

Sikubali jukumu. Read all posts at your own risk.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By NpS on 04/12/2016 7:14 AM
Example: In PA, we can Warranty Deeds, Quit Claim Deeds, and Deeds of Trust. The word "conveyance" doesn't have any special attachment to one form of transfer or another.


Just guessing, but common law (aka case law) may be more controlling than the statutes in the use of quitclaim deeds.

NpS (Pennsylvania)
Posts: 4,216
Posted:
Too many variables. That's why I don't think the HOA should put itself in the position of evaluating the "quality" of a deed when only only one "owner" is stepping up to vote or be elected.

Sikubali jukumu. Read all posts at your own risk.

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