When does the term of a member of the Board end

First, our client is located in Dallas County, Texas.

Our client is a Property Code Chapter 81 Condominium Association organized before the TUCA became effective on January 1, 1994. Our client has not elected to be governed by TUCA/Chapter 82.

This is the issue and question:

An annual meeting of the Association was held this afternoon. One seat on the Board of Directors was open to be filled as the 3 year term had expired.

The incumbent did not run for reelection, for which the incumbent was eligible as there are no term limits. The incumbent did not resign.

No owner submitted a candidate form (self-nominations are permitted and encouraged).

No owner was nominated for the floor during the annual meeting, permissible in Texas.

No owner volunteered (self-nominated from the floor, also permissible in Texas).

Question: I have seen discussion on this forum which indicates incumbents continue in office until new Board members are found and appointed. The scenario generally seems to be the entire Board is up for election and there are no volunteers.

In this case, only one Board seat was up for election. If there are no candidates, as there were not, when does the term of the incumbent expire?

Those who developed the governing documents of this condominium association in 1981 (probably earlier) never envisioned this scenario. The documents are silent.

What is your advice and counsel, especially my colleagues in Texas who may have encountered this situation.

Thanks for your input, thoughts, and reasoning.

My take is that no resignation is required, or appropriate, as the term of the director has expired.

Bill,

From your posting, it sounds like this is only one seat on the board and not the whole board.

Based on the statutes provided by Augustin and what you posted, I would say that the seat became vacant. This would allow the remaining board of Directors to appoint someone to the seat.

The proper procedure might not have been followed, but I suspect that the end result would be the same.

The key point here is, if you don't want those who are willing to serve to serve, volunteer to serve so the members have a choice.

Do boards in the corporate world have terms of service, or are things more open-ended?

For what it's worth, in my community we assume that at the end of a term, the incumbent must seek re-election or else is off the board. If no one else is elected to fill the position, we have an open, unexpired term which the board may fill by appointment. A director who is in the middle of his term and who does not want to serve any longer must formally resign; otherwise he remains on the board until the end of this term, whether or not he fulfilling his duties. (Although three consecutive absences from board meetings are deemed to constitute a "resignation", and the board shall declare the position vacant and appoint a replacement - the only instance where the board may remove a director. Per our bylaws.)

I agree with Mark - the board member decided not to run again, no one stepped up to volunteer for the spot so the seat is now vacant. If sometime in the future,someone steps up, I think the clock for that term will start at that point.

Cathy,
I was also surprised about the 3 year term for the Board seat. I have always on seen that in the first elected homeowner board. This is how the staggered elections get started. Once that first 3 year term expires on a 5 member board it should become Next year 3 2 members are up for the election and then the following year 2 members are up for the election. This is an older HOA and it appears like they did not make that change after the Declarant turnover.

The Bylaws of my association stated the directors shall hold office until their successors are elected.

I agree. Also my belief is the only time BOD Members would carry over was if there was not a Quorum thus no election. In this case an attempt was made to have an election but no one wanted the job. I say the position is vacant and the BOD should act accordingly.

In our docs, when one is appointed to a vacancy by the BOD, that person fills the remaining length of the term.

I think the Nonprofit Corporation statute, section 22.208 both sections (a) and (b), actually does provide solid guidance.

Regardless, to me a willing volunteer, who evidently is agreeable to all, stepping up to serve on the board denotes a happy ending.

Could very well be. What's infuriating to me is the obvious need to amend the relevant statutes, at least in Florida, and what is sure to be the abject failure of state legislators to do it. I will be SHOCKED if there's anything noteworthy that changes in the Florida HOA and Condo laws next year in response to the pandemic.

What are "our new abilities to have online meetings"? What we've got is a preponderance of FL attorneys advising their clients that it's highly unlikely that any judge or court would rule against a board that's "doing its best" in unprecedented times re. the pandemic. From 30,000 feet I think that's reasonable and justified. But every board who flounts the law is rolling the dice. Especially with the "ability" of homeowners to attend meetings remotely or virtually. Nothing in the statutes allows that. It's explicitly allowed for Directors to attend Board meetings remotely, but there's nothing that allows the same sort of attendance by Homeowners (or Unit owners) to attend any sort of meetings remotely.

If there were truly "mew abilities to have online meetings" then I think we wouldn't be seeing a surge in the number of Annual Meetings that are being cancelled or postponed.


Florida doesn't technically allow it. Again, what we've got is most lawyers saying, "Have online meetings and don't worry about it."