NC HOA Special Meeting - Who can run it?

Started by JeffS33 • 22 replies • 677 views

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JeffS33 (North Carolina)
Posts: 9

Posted:

This is a bit of a follow-on to another post I recently had, where as always, I've gotten my answer. So thank you all ahead of time for helping me with this one, if you can.

We've called a Special Meeting for the removal of BOD members, however we have not specified in the petition who they are. Our attorney has been going back and forth with the Board's attorney, who clearly has no concerns with violating statue's and CCR's, and I am contending has "unclean hands" in this situation. But I digress..

Anyway, since their attorney "thinks" he knows who we are going to call for the removal of, he has announced that "he" is going to run this Special Meeting. I don't know about NC, but in some other states where I've been a part of situations like this, the attorney representing the BOD and community CANNOT run a meeting, as he is neither a member, nor a Director. We do not have any specific restrictions on "who" can attend these meetings, but I would contend he does not have the authority to run this meeting. He may "think" that we are trying to remove the President, but even if that were true, another Director could just as easily take over the meeting, like the VP, if/when the President is removed.

Thoughts? Thanks!!!

GeorgeS21 (Florida)
Posts: 3,808

Posted:

IMO, the president of the board presides, but can assign responsibility to administer the meeting to another - like the property manager, and I believe, the attorney.

If the president is removed as a director, the general flow is to the VP. Then to other officers.

JeffS33 (North Carolina)
Posts: 9

Posted:

Thanks George. Since NC statue doesn't appear to speak to this, nor do our CC&R's, it appears that it's open to as you outlined. Thanks!

JohnC77 (California)
Posts: 562

Posted:

The president can turn over running a meeting to the association's attorney, s this can follow parliamentary procedure.

JeffS33 (North Carolina)
Posts: 9

Posted:

Ok thanks. I believe this will open the attorney up for a number of bar issues given that he is clearly violating other aspects of the state statues with his other actions, but I suppose that he's not worried about hiding behind attorney-client privilege at this point. They have all gotten away with breaking laws and our CCR's for so long, they feel untouchable. Thanks for the clarification everyone

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JeffS33 on 12/07/2020 9:07 PM
the attorney representing the BOD and community CANNOT run a meeting, as he is neither a member, nor a Director.

First, I bet there's nothing in the covenant that prohibits an agent of the HOA/condo from presiding at a meeting.

Quote:

We do not have any specific restrictions on "who" can attend these meetings, but I would contend he does not have the authority to run this meeting.

Second, the real problem is that the HOA attorney's client is the HOA. This translates to the HOA attorney taking direction from the Board. The HOA attorney has a legal obligation to zealously represent the wishes of the Board. Which means the HOA attorney is prohibited by law from doing anything that might be in the least way opposed to his client's best interests, as represented by the beliefs of the Board. Also the HOA attorney would be addressing HOA members with adverse interests and who are not represented. This is another no-no, for the most part.

There was an appeals court case on the subject of attorneys addressing HOA membership meetings sometime in the last 20 years. It was not a Carolina appeals court case, but I feel it is instructive.

AugustinD
Posts: 5,144

Posted:

Also, I do not know how your group can legally get away with having a Special Meeting to recall Directors without specifying which directors it intends to recall. I think this is game-playing.

ChrisE8
Posts: 454

Posted:

Can the directors be removed by written consent? If so, I'd try that.

Is this in Charlotte?

JeffS33 (North Carolina)
Posts: 9

Posted:

Thank you very much for your feedback. I’ll look into these as I’m curious about that case

JeffS33 (North Carolina)
Posts: 9

Posted:

Quote:

Posted By AugustinD on 12/07/2020 10:37 PM
Also, I do not know how your group can legally get away with having a Special Meeting to recall Directors without specifying which directors it intends to recall. I think this is game-playing.

We absolutely can. There is nothing in statue or CCRs in NC which require that we specify The Who, only The Purpose. Our petition is entirely legal and actually put attorney wrote the petition and letter for us.

JeffS33 (North Carolina)
Posts: 9

Posted:

They could if we had told them who we want removed. This BOD is so corrupt and has been for years that we didn’t specify. We only need quorum and majority present requirements to achieve the outcome, so no, we don’t want a written ballot, but it’s not up to us. It’s up to the BOD how they address the issue.

Durham, not Charlotte

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Y'know, Jeff, I'm wondering if you made this more difficult and less clear by not naming those you want replaced - and who you want replace them. What is your goal and why is sharing the goal with those you want to vote for your goal not the best approach?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JeffS33 on 12/08/2020 5:51 AM

We absolutely can. There is nothing in statue or CCRs in NC which require that we specify The Who, only The Purpose. Our petition is entirely legal and actually put attorney wrote the petition and letter for us.

I hear you that your attorney prepared this. But I have strong doubts about this. To me, the Purpose would be too vague and could cause other problems. It's as though you are saying the Special Meeting could remove all the directors in one fell swoop. But then who would replace them? Your HOA would have no Board for awhile.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GeorgeS21 on 12/08/2020 6:24 AM
Y'know, Jeff, I'm wondering if you made this more difficult and less clear by not naming those you want replaced - and who you want replace them. What is your goal and why is sharing the goal with those you want to vote for your goal not the best approach?

Yuppers, I agree. Why Jeff's group's attorney would write the petition et cetera this way is certainly interesting and IMO, highly risky legally.

JeffS33 (North Carolina)
Posts: 9

Posted:

Appreciate the responses. I have actually written a number of these in other HOA's over the years and they are perfectly valid. We did not name members for a reason, which is this BOD does not follow statue, CCR's, and have had 3 years of election fraud accusations and other clearly improper actions taken by them. Our attorney advised that based on all of that, that we specifically write the letter, which he wrote, and the petition, which he wrote, in the manner he did. I'll just stick with him and not bother you all. I was just hoping for some clarity on a single answer, which I received and am thankful for. Appreciate the help, and obviously I did not explain the entire situation, hence there are very rationale and legal reasons for taking the specific actions which we did. I don't want to waste everyone's time with the dissertation that I would take to convey the situation. Thanks

JohnT38 (South Carolina)
Posts: 1,631

Posted:

"I did not explain the entire situation, hence there are very rationale and legal reasons for taking the specific actions which we did. I don't want to waste everyone's time with the dissertation that I would take to convey the situation. Thanks"

Actually many of us are here to learn and if you are willing providing this information might help someone else out.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

I agree. They could have avoided this if they named who they want to recall.

ND (PA)
Posts: 792

Posted:

Quote:

Posted By JohnC46 on 12/08/2020 10:01 AM

I agree. They could have avoided this if they named who they want to recall.

Naming specifically who was to be recalled may have initiated a chess match of resignations, subsequent appointments, or other shenanigans to try and find loopholes in process/procedure that is possibly being avoided by leaving things vague as they have elected to do.

But I haven't thought too hard about this in regard to what may or may not actually be possible.

AugustinD
Posts: 5,144

Posted:

JeffS33, I think what is most important is that your group is using an attorney. I am more than fine trusting that he knows what he is doing. Of course I'd rather you take his advice than mine.

Increasingly I am realizing that the average Jane or Joe is not capable of understanding covenants; statutes; case law; or how to write an appropriate demand letter. In the short amount of time they have to address problems with their HOA/condo, and with limited experience in general in these matters, this is particularly pronounced. Doh. Hence the aggrieved HOA Owners are stuck with --

-- trying to find an attorney willing to represent them. This is often an enormous battle all by itself because of conflicts of interest the attorneys have or the money the HOA Owner is offering does not make the case worthwhile. Law firms are businesses. They want the cases that will earn them more than chump change.

-- hoping this attorney takes the dispute as seriously as the Owner does. For large disputes, this won't happen, ever. The attorney cannot give the dispute the attention the Owner does and still make a living.

-- paying a lot of money to an attorney and getting little in return.

-- a court process where all sides lose due to the length of time and expense litigation takes. But the individual HOA Owner stands to lose the most, even if the judge rules in her or his favor.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By AugustinD on 12/07/2020 10:25 PM
There was an appeals court case on the subject of attorneys addressing HOA membership meetings sometime in the last 20 years.

Correction. This was a 1987 ethics opinion by the Michigan Bar. See https://www.michbar.org/opinions/ethics/numbered_opinions/CI-1175 .

=== Excerpt ===
Summary:
"A lawyer defending a lawsuit brought by a condominium owners' association, may not give advice other than to obtain counsel to unrepresented individual members of a condominium association not parties to the lawsuit, where there is a reasonable possibility that the interests of the unrepresented members may conflict with interests of the lawyer's client.

A lawyer's dissemination of pleadings, explanation of defenses and posture of case, and question answer session to unrepresented members would constitute prohibited advice to persons of adverse interest.

References: MCPR DR 7-104(A)(2)."
=== End Excerpt ===

"MCPR" is the Model Code of Professional Responsibility for attorneys. MCPR DR 7-104(A)(2) states:
"During the course of his representation of a client a lawyer shall not [g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 12/08/2020 11:34 AM
JeffS33, I think what is most important is that your group is using an attorney. I am more than fine trusting that he knows what he is doing. Of course I'd rather you take his advice than mine.

Increasingly I am realizing that the average Jane or Joe is not capable of understanding covenants; statutes; case law; or how to write an appropriate demand letter. In the short amount of time they have to address problems with their HOA/condo, and with limited experience in general in these matters, this is particularly pronounced. Doh. Hence the aggrieved HOA Owners are stuck with --

-- trying to find an attorney willing to represent them. This is often an enormous battle all by itself because of conflicts of interest the attorneys have or the money the HOA Owner is offering does not make the case worthwhile. Law firms are businesses. They want the cases that will earn them more than chump change.

-- hoping this attorney takes the dispute as seriously as the Owner does. For large disputes, this won't happen, ever. The attorney cannot give the dispute the attention the Owner does and still make a living.

-- paying a lot of money to an attorney and getting little in return.

-- a court process where all sides lose due to the length of time and expense litigation takes. But the individual HOA Owner stands to lose the most, even if the judge rules in her or his favor. <

I agree.

GenoS (Florida)
Posts: 4,276

Posted:

JeffS33, I certainly don't want you to reveal anything of your strategy ahead of time here on a public forum, but when all is said and done I would really appreciate it if you would please return and give us something of an after-action report. I think it would be very informative to learn of the underlying issues and how you were able to go against a corrupt board right under their noses without jeopardizing that strategy. Obviously you've hired an attorney, but beyond that I think the details might be very interesting. Good luck to you.

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