HOA board has two husband and wife couples, which seems to conflict with CCR"S and By-laws

Started by JamesJ16 • 30 replies • 955 views

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JamesJ16
Posts: 40

Posted:

The President's wife is treasurer, then he has another buddy and his wife on the board, so these four always can swing the vote out of a total of seven officers. Thus the President is out of control, he just does as he wishes on anything, and then pushes what ever he wants through the meetings.

The CCR's state you must be an active member to vote at any meeting and that there can be No more than one vote per home? It seems they are wanting to try and hide this information from the member's, as we asked who the board member's were for over a month before the president would tell us.

There must be a way they are allowed to do this legally right?

JohnC77 (California)
Posts: 562

Posted:

You may be ,is-interpreting the governing docs. While there may be only vote per household there may be nothing against having multiple people from the same household as long as they are owners.

JamesJ16
Posts: 40

Posted:

The only mention I can find in the by-laws is that "Each lot that is owned by an active member, will entitle that member to one and only one vote in the meetings of the Association."

With the above mentioned situation it appears that there are two lots with with four votes in the meetings.

Everything else is silent about who can be a board member or officer. Except one sentence that states, "After the first Annual meeting only "one director may not be an active member" as defined by the Articles of incorporation.

So I guess I need to see the Articles of incorporation..

ChrisE8
Posts: 454

Posted:

The one vote per home applies at meetings of owners.

The husband and wife on the board would have two votes at meetings of the board, which is different from meetings of owners.

It is fine.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You have to be an owner to be a HOA member. So no even a husband/wife would only have 1 vote together or spouse that is the owner. So the question is: Is the HOA still developer controlled/owned and/or these other people owners as well?

The set up is a bit confusing per what the OP says. You can't just say "His buddies" are on the board as well etc... That relationship has to be defined more. As to this day I don't understand why you can't be friends or friendly toward anyone on your HOA board nor vendor. It makes no sense when people go "Well the PM/Vendor/board member is besties". At some point you all have to work together whether or not you like, married, or dislike each other.

Former HOA President

CathyA3 (Ohio)
Posts: 6,299

Posted:

As Chris said, it's probably not prohibited by your governing documents. But as a rule of thumb, it's also not a good idea for the reasons mentioned.

The solution is to have enough owners who care enough about these things and who are willing to do the necessary work to break up the clique.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Probably need to see the text of the Bylaws and CCRs as they relate.

ChrisE8
Posts: 454

Posted:

Quote:

Posted By JamesJ16 on 11/28/2020 10:44 PM
The only mention I can find in the by-laws is that "Each lot that is owned by an active member, will entitle that member to one and only one vote in the meetings of the Association."

With the above mentioned situation it appears that there are two lots with with four votes in the meetings.

Everything else is silent about who can be a board member or officer. Except one sentence that states, "After the first Annual meeting only "one director may not be an active member" as defined by the Articles of incorporation.

So I guess I need to see the Articles of incorporation..

I'll clarify my response.

There are two types of meetings in a HOA, and two layers of governance.

First: Board meetings, at which the board makes decisions. These happen at various times throughout the year.

Second: HOA-wide owners' meetings, sometimes called "meetings of the Association", at which owners vote on things. These happen sometimes only once a year, or otherwise infrequently.

Each "member" has "one and only one vote" at "meetings of the Association"--the second type of meetings. That's separate from the first type of meetings, and that prohibition has nothing to do with a couple serving on the board.

The statement that "only 'one director may not be an active member'" means that on the board, everyone has to be an active (whatever that means) owner, except one person.

If you want to ban a couple from serving on the board, just change the governing documents to state that "not more than one member of the Board may be an owner of the same lot", or something. But your governing documents don't say that--so the couple serving on the board is fine, as long as there isn't more than one "outsider" (non-active member) on the board.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Fortunately ours Bylaws prohibit a husband and wife form being on the BOD at the same time. Manys docs do not do such thus it is allowed. I agree with no husband and wife on the BOD at the same time.

KerryL1 (California)
Posts: 14,550

Posted:

Cathy says is short & sweet, and Chris' elaboration of the two kinds of meetings, where people vote, is pretty clear, James.

So your choices are to f band together with other other owners and throw out some of the current board at your next annual meeting & election (Meeting for the owners or members).

It's harder and more expensive to change your bylaws--probably, what t do you bylaws say about amending them? If you go that rout, you poorly want to the language to be something like "Co-owners may not serve on the Board simultaneously." "Owners of the same lot" t doesn't eliminate those co-wners who own more than one lot.

"Actie memmen" is new to me, James, but you Articles will clear it up. It might mean a non-owner.

JamesJ16
Posts: 40

Posted:

Thanks to everyone on clearing this issue up, it appears to be allowed by the silence in the documents, I am going to try and find the articles of incorporation for further clarity.

To be honest, I am conflicted on whether or not this is a good or bad thing. I can see both pros and cons to husband and wife board member teams. As it is there are 500 homes roughly in our neighborhood, and supposedly
very few people that wish to participate on the Board, but I believe some of the lack of participation comes from a President that is very aggressive and or passive aggressive to anyone that questions his decisions?

Also, why would I or anyone else wish to be a board member when there are 7 members, and the President has the majority of votes (4) to do as he wishes?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JamesJ16 on 11/29/2020 11:26 AM
Also, why would I or anyone else wish to be a board member when there are 7 members, and the President has the majority of votes (4) to do as he wishes?

To have a better understanding of real-life politics and what a brutal job it is to serve in government as an elected official.

I continue to support paying HOA/condo directors, to entice better qualified people to serve.

And nope, I do not like husbands and wives tag-teaming via simultaneous service on boards or possibly the board and ARC. But often in HOAs/condos, any warm body will have to do.

ChrisE8
Posts: 454

Posted:

Quote:

Posted By JamesJ16 on 11/29/2020 11:26 AM
the President has the majority of votes (4) to do as he wishes?

I don't see a problem with that, if your assertion that the President has 4 votes is based on one spouse and two of the president's friends being on the board. If someone lived in a HOA and wasn't friends with others in the community, that would be a problem, and it's pretty common for friends to end up on nonprofit boards together.

If you don't like it, get the bylaws changed. Usually that can be done with either board or owner approval.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Same property family members on an HOA board? Always a bad idea.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JamesJ16 on 11/29/2020 11:26 AM

very few people that wish to participate on the Board,

This is typically the answer as to why this happens.

Quote:

Posted By JamesJ16 on 11/29/2020 11:26 AM

but I believe some of the lack of participation comes from a President that is very aggressive and or passive aggressive to anyone that questions his decisions?

Highly possible.

Lack of participation can mean that others don't want to be involved (several reasons, work,family,etc).
Lack of participation can mean that most are ok with how things are ran (i.e. nothing has ticked them off).

Quote:

Posted By JamesJ16 on 11/29/2020 11:26 AM

Also, why would I or anyone else wish to be a board member when there are 7 members, and the President has the majority of votes (4) to do as he wishes?

One can be a watch dog, so to speak, and keep things mostly on track.
One can change opinions of others if presented correctly.
If there are enough willing to serve, the husband wife teams can be broken up (simply by stating it's not a good idea at the election - or by collecting proxies).
One can actually learn how and why things are done the way they are (before I joined the board I thought I understood HOAs, after I joined I received one heck of an education).

If not you, who?

ND (PA)
Posts: 792

Posted:

JamesJ16,

A few important details for you to find out, know, and understand in regard to your HOA. You will find most of this in your governing documents (Covenants, Conditions, Restrictions (CCRs) and/or Bylaws) . . .

1) You need to know how many Directors are presently on (or supposed to be on) your HOA Board of Directors.
2) You need to understand that Directors are not the same thing as Officers (Pres, VP, Treasurer, Secretary, possibly others).
3) Sometimes Directors must be owners/members in the HOA, sometimes not.
4) Sometimes Officers must be owners/members in the HOA, sometimes not.
5) Sometimes Directors are also Officers, sometimes not.
6) Typically owners/members are defined as those who are on the deed to a property. A husbands and wife would both need to be on their deed to both be considered owners/members and to be eligible to be a Director and/or an Officer (if your docs indicate those positions can only be held by owners/members).
7) Typically only Directors cast votes to make decisions. Officers typically do not vote. But a person who is a Director and also an Officer would vote.

In regard to this group of 4 . . . to be able to know who is eligible to be on the Board and/or be an Officer, you need to understand what your documents say/require and then know who in the group are owners/members and what positions they actually claim to hold . . . whether it be just a Director, just an Officer (Pres, VP, etc.), or a Director/Officer combo.

As an example, in my HOA (and I don't necessarily agree with this because we have a small HOA, but the documents permit it) . . . we have 3 people occupying the 3 required Director positions and 4 other people occupying the 4 required Officer positions (Pres, VP, Treasurer, Secretary) . . . for a total of 7 people involved in running the HOA. The Directors do the voting to make the decisions, and the Officers essentially run the day-to day and carry out the decisions of the Directors.

JamesJ16
Posts: 40

Posted:

Always is an absolute, maybe we could say most of the time? I have seen where there are no volunteers willing to participate, and like Chris said a warm body is better than nobody.

But, when there are plenty of people that want to participate, my opinion is it should not be allowed.

JamesJ16
Posts: 40

Posted:

Thanks TimB4,

Sounds like I have your vote! It has been suggested by many neighbors that I should run in the upcoming election, so thanks for the reasons you give above. However these people that are so willing to volunteer myself are retired and yet they want nothing to do with the Board? And won't go to even the annual meetings?

Not sure if this is an issue, But our President is known as a rough, tuff, angry, bully type, aggressive, well I am a type A personality, and have been told I am similar to the current President, whom I do not know very well, just that he has made a lot of people unhappy over the years. But to me that is kind of his job.

However, recently in my personal dealings with him, he has not dealt with me honestly, he has manipulated facts, and tried to control the whole narrative, and he and the board should have tried to mediate my issues and concerns per the by-laws. This was never done. I am actually more angry about his unprofessional behavior than the thousands of dollars and loss of enjoyment and depreciation to our property his decisions are going to make on my family.

Anyway, I have dealt with his type, yes I could learn a lot, maybe add some value to the aging Board line-up, hell his wife asked me to consider to join the Board, in front of all the Board? It was an awkward moment, and I have a feeling he did not like this seed She was planting. but she may also know that I could possible beat him.

He has been President for at least 5 years, he is older and dealing with cancer, or it is in remission, so even with all his faults and things he has done that I do not agree with, has he earned the right to
die in the position and just let all his many recent mistakes go without questioning them?

I have asked you this question as I see you number of posts is the highest I have seen. Thanks...

JamesJ16
Posts: 40

Posted:

ND,

Thank you for the very informative and detailed response! I just looked and all of the group of 4 are on the deeds, but the President's and treasurer's deed wash just changed to a living revocable trust this year, but it appears they are both trustees.

So 3 of the 4 are officer's and one a board member.
The positions they claim to hold are President and his wife the treasurer,
and couple #2 Board Member and his wife the Secretary. Again the documents are silent as far as I can tell as to who can be on the Board and or an Officer.

A Board member cannot succeed himself, and are elected for 3 year terms, and officers are elected every year, I think this is for the most part standard. The elections though require 10% of active members present or by proxy to have a quorum at an annual meeting, with us having 500 homes I think it would be hard to get 50 people to attend an annual meeting and get a quorum?

I just tried to get a copy of our By-laws online, where they have always been, looks like they have been taken down, by the management company?

TimB4 (Tennessee)
Posts: 21,059

Posted:

James,

All I can say is that the current board members have deserved thanks, regardless if one agrees with their decisions or not.
They deserve thanks because they were willing to step up and do a job few want or are willing to do.

They dedicated time and energy and, in their eyes, likely thought that they were doing the best they could.

This doesn't mean that they shouldn't be held accountable for their errors.
It simply means that they should be thanked for what they have done that was right.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By ND on 11/29/2020 8:12 PM
... snip ...
6) Typically owners/members are defined as those who are on the deed to a property. A husbands and wife would both need to be on their deed to both be considered owners/members and to be eligible to be a Director and/or an Officer (if your docs indicate those positions can only be held by owners/members).

... snip ...

Just one caveat to ND's excellent summary: Item 6 can vary by state. In mine, someone who is legally married to a person whose name is on the deed is also considered to be an owner whether or not their name to be on the deed. But the operative phrase is "legally married" - we don't recognize common law marriage or any other form of domestic partnership for purposes of deciding who is an "owner" in an HOA or COA.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

James

Many HOA's could not make Quorum without Proxies. Check about Proxies. If allowed and no limit on how many one holder can have, you could control the election.

JamesJ16
Posts: 40

Posted:

Thanks for this perspective Tim, I will keep it in mind, I just do not like being snaked and stabbed in the back, he has lied to us many times, and now prefers to go legal than to do his job.

He will not even produce minutes of meetings? But yes he and his wife do work for free, and I guess you get what you pay for? But, again I asked your opinion on this because I am too angry, and felt you could keep things in perspective. "THEY SHOULD BE THANKED FOR WHAT THEY HAVE DONE THAT WAS RIGHT!" O.K. I can do that. The guy is a hard worker, and dedicated.

So I will thank him for his service and what he has done right, as I become a thorn in his side for being a dishonest snake, So, for anyone reading this that is a board member, please do not intentionally abuse your power, authority or knowledge against your members. As when you do you make an enemy of a neighbor for life.

But, you are right Tim, thanks for this perspective. That is the reason I am here seeking counsel.

As I go on the offensive with the Board and or neighbor, I will try to remain professional, and thankful for their contributions, but when someone is as dishonest as this guy has been, I start to question what else are they hiding and or being dishonest about?

JamesJ16
Posts: 40

Posted:

Yes thank you for this info, I understand this but, I am new to the neighborhood and he has been hear 5 years! I know several people that give proxies to him, so I am not sure how many he has in his pocket. That is why I requested the last annual meeting minutes, as I do not think he had enough to get a quorum?

500 houses 10% for a quorum is 50 members at the last meeting either physically or by proxy, I just do not think they had enough, so this means the last few annual meetings were potentially fraudulent. Oh, but it is the group of 4 that check to see that the proxies are valid, and they each bring 7-8 and have 10-20 active members show up. So maybe they make it?

I have to get enough to go against 5-6 Board members, that have lived here a long time and understand the proxy system, Not impossible but will probably take an "October surprise". Along with a lot of proxies, as soon as you ask for one from a friend of his, he will send his group of 4 out begging and pleading.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TimB4 on 11/30/2020 1:10 AM
All I can say is that the current board members have deserved thanks, regardless if one agrees with their decisions or not. They deserve thanks because they were willing to step up and do a job few want or are willing to do.

-- It's not clear to me that this husband-wife team on the board did not cheat their way to their positions. Others may very well have stepped up to run. I do not understand this notion of TimB4's (that all directors must be thanked).

-- James, I would only run for the board if I had a like-minded majority running with me. Then I'd campaign extensively with my fellow co-candidates.

JamesJ16
Posts: 40

Posted:

O.K. so do not do it unless you have "a like minded majority". What does this mean exactly, cause the board seats a staggered. But I guess there are four officer seats every year. And 1 Board seat, each annual election.

But, I am still confused even if I cannot convince other's to join right now, I can get my foot in and start learning, and be a thorn in this idiot's side, sure he'll take credit for all my good ideas and any hard work I do, but he and his buddies are old and sickly, gotta go sometime.

See, I have actually been in this same situation, Our union President died where I worked, and his V.P. tried to cheat into his position, I made a stink about it, and they had to have a fair election, but no one else wanted the position, so I had to run against the V.P., I choose a running mate and had like minded people that supported me. The V.P. offered me the V.P. to not run against her, I did not take it and she cheated me by 2 votes using mail in ballots.

In hind sight, I should have been happy with the V.P. as she was old and I could have learned and waited for my time.

So, can you expound upon your thoughts on this a little as it goes against my previous experience.
Then I want to ask you help on the other topic, as well, if you have time...

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Can’t let it pass .

How did she cheat you with mail in ballots?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JamesJ16 on 11/30/2020 8:02 PM
O.K. so do not do it unless you have "a like minded majority". What does this mean exactly, cause the board seats a staggered. But I guess there are four officer seats every year. And 1 Board seat, each annual election.

-- First, keep in mind that directors and officers are two different categories of positions. Sometimes the Bylaws require all officers to be directors, but not always. Usually the membership elects directors, but then, once elected, the directors pick who is President, VP, Secretary and Treasurer. Review your Bylaws for more info.

Quote:

Posted By JamesJ16 on 11/30/2020 8:02 PM

But, I am still confused even if I cannot convince other's to join right now, I can get my foot in and start learning, and be a thorn in this idiot's side, sure he'll take credit for all my good ideas and any hard work I do, but he and his buddies are old and sickly, gotta go sometime.

Second, I agree this is fine. Just watch your backside. With a board majority who may not like you, they can publicize all manner of lies about you; exclude you from board meetings using a bit of legal cleverness; deny you records (most likely, unlawfully); and the like. All of these actions would require a lot of time to fight.

But again, you are absolutely correct that another route is to slowly, year after year, re-constitute the board so that there are people who are less political; less blindly loyal to a friend; and far more loyal to what the governing documents and law say.

From the standpoint of practical politics and more, your union experience, including of course running for the officer positions, sounds invaluable to me. A caveat or two: Keep in mind that unions are not corporations and are not subject to, for example, Oklahoma's corporate statutes. Signs are that your HOA is incorporated. I would appreciate your confirming this. If you are unsure how to do so, then go to
https://www.sos.ok.gov/corp/corpInquiryFind.aspx; put in the name of your HOA (or variants of the name); and see what comes up. Nationwide, most HOAs and condos are incorporated and so subject to their respective state's corporate statutes.

JamesJ16
Posts: 40

Posted:

Augutin,

You stated, "From the standpoint of practical politics and more, your union experience, including of course running for the officer positions, sounds invaluable to me. A caveat or two: Keep in mind that unions are not corporations and are not subject to, for example, Oklahoma's corporate statutes. Signs are that your HOA is incorporated. I would appreciate your confirming this. If you are unsure how to do so, then go to
https://www.sos.ok.gov/corp/corpInquiryFind.aspx; put in the name of your HOA (or variants of the name); and see what comes up. Nationwide, most HOAs and condos are incorporated and so subject to their respective state's corporate statutes."

Again your thoroughness and has impressed me, to the point I would not want to mess with you on any legal issue. I have been on a wild goose chase all morning trying to find the filed corporation documents of our HOA? And they simply do not exist. There were two other identical HOA'S filed with the state in other city's so I purchased their filings to make sure they were not our HOA and they are not? No DBA's, LLC or 501c3, on file with the state?

When I bought this home the Real-Estate Attorney for the Title company told me there was not an active HOA for this neighborhood, I argued with them and finally someone contacted the Management Company, that manages the HOA. But I still was confused how a real-estate attorney for a Title Company could make this mistake. Maybe the title companies real-estate attorney could not find an entity operating legally as our HOA either? I even called the state and they searched and could find nothing?

I guess the management company could have set up an entity under another name? I am so confused. I am starting to get worried about this, but if you hold yourself out there to the public as SO and So HOA and there is no business entity registered with the state, no articles of incorporation, as the by-laws state then to me that is Deceptive Trade Practices at the very least and could be a whole host of other legal issues involved. Please tell some logical explanation for this that is common place for HOA's if there is one?

Thanks for everything again, I am indebted for you assistance especially on that Demand Letter!

Notice the By-Laws have no corporate seal at the bottom or really anything, signatures dates?
This is the most recent version emailed to me from the management company yesterday.

Also CCR"S and By-laws state our dues will not exceed $50.00 but our dues were 115.00 according to the website, in 2015, last year they were 145.00 a year, and this year they have increased to 153.00? All very reasonable amounts that do not bother me in the least, but I would think that with every maintenance increase the members need to vote, it appears the CCR'S and the By-laws would need to be updated and and filed with the city? As current CCR's say dues shall not be more than $50.00? Wow

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AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JamesJ16 on 12/02/2020 1:20 PM
I have been on a wild goose chase all morning trying to find the filed corporation documents of our HOA?

JamesJ16, if you are comfortable emailing me the name of your HOA, please feel free to do so at augustin1919[at]gmail yada. I will see what I can find out.

I found a declaration from a HOA in Oklahoma that is so similar to yours that I suspect the developer, back in the 1990s, was the same. This other HOA is on the Oklahoma Secretary of State site.

Based on all you found so far, I too would have concerns about whether your HOA is properly registered with the state.

So far I am not too worried about the Bylaws not having a seal and so on. In many (most?) states, Bylaws are not on record with the County or the state's Secretary of State.

I would expect your HOA's Certificate of Incorporation (a.k.a. "the Articles of Incorporation") to be filed with the Oklahoma Secretary of State. Occasionally, the Articles do contain legally important information, of course.

Quote:

Posted By JamesJ16 on 12/02/2020 1:20 PM
Also CCR"S and By-laws state our dues will not exceed $50.00 but our dues were 115.00 according to the website, in 2015, last year they were 145.00 a year, and this year they have increased to 153.00? All very reasonable amounts that do not bother me in the least, but I would think that with every maintenance increase the members need to vote, it appears the CCR'S and the By-laws would need to be updated and and filed with the city? As current CCR's say dues shall not be more than $50.00? Wow

I see this in the Bylaws you posted. On the one hand, I agree membership votes were needed at least for the first few years where the dues were over $50. On the other hand, there is abundant case law that says that if a Board does xyz for many years and no one complains about a violation of the Bylaws (specifically in this case, Bylaw Article X, Section 2), then this Bylaw section is nullified or voided or abandoned or whatever the correct lingo is in the law.

Is the HOA attorney aware of this Bylaw Article X, Section 2? For the reasons I give above, I would not jump all over anyone over this, but I think your Board would be wise to get the attorney to do a bit of case law research and put something in writing in the vein of what I wrote above. (Hopefully the attorney is sharp enough to know that tidbit I described above. Meaning no disrespect to him or her, but it is getting into some finer points of HOA/corporate law. Plus maybe he or she has something more intelligent to say on the point. Like get the membership to amend the frickin' Bylaws, and do it now?)

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