what happens if ...

Are you on the Board, Trista?

Does your HOA have more candidates than one board spots?

Your writing is hard to go follow. It will help if you do not "digress."

Per Texas HOA/COA law; the Texas nonprofit corporation act; and/or the Bylaws, the Board appoints a new director anytime there is a vacancy on the Board and the HOA/COA is between its annual elections.

I hope Trista will start a thread about the MC appointing a board. But that's not her topic today.

I agree with others Trista. whether or not you're on the Board, your Bylaws will tell you how to fill vacancies, which most likely is as Augustin found for you.

If the MC is picking the board, and is often pointed out here at hoatalk, this is because the Board lets the MC do so.

I am pretty sure the only way to fix this is to get on the board with a like-minded majority.

It appears to me that whether a board-appointed director serves until the next election or serves for the remainder of the term of the vacated seat requires a review of the governing documents and the applicable statutes. By my reading and depending in part on the governing documents, where a seat on a Texas HOA/COA board becomes vacant because of a resignation, statutes say the appointed director may very well lawfully end up serving for the unexpired term of the seat the appointed director is filling.

What the statutes say:

For all HOAs/COAs that are nonprofit corporations, the Texas Nonprofit Corp Act states:
"Unless otherwise provided by the certificate of formation or bylaws of the corporation, a vacancy in the board of directors of a corporation shall be filled by the affirmative vote of the majority of the remaining directors, regardless of whether that majority is less than a quorum. A director elected to fill a vacancy is elected for the unexpired term of the member's predecessor in office."

For Texas HOAs subject to TPC 209, and quoting from the latter:
"A board member may be appointed by the board to fill a vacancy on the board. A board member appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position."

The "shall" above is not trivial. I expect the "shall" means that TPC 209 trumps governing documents saying otherwise.

For Texas condos subject to TPC 82, and quoting from the latter:
"The board may fill a vacancy in its membership for the unexpired portion of a term."
(Does not apply to condos that are established pre-1994)

For Texas condos subject to TPC 81:
TPC 81 is silent on the subject.

I looked up two associations in Texas, one a condo (Condo Act) the other a HOA (Residential Act).

The Condo states vacancies appointed by the board are in effect until the next annual meeting.

The HOA states vacancies appointed by the board are in for the unexpired term.

So HOA's have to fill the vacancy for the unexpired term, while Condos will go by the governing docs, and if they are silent, then the unexpired term.

An important part of 209 was omitted:

Sec. 209.00593. ELECTION OF BOARD MEMBERS. (a) Notwithstanding any provision in a dedicatory instrument, any board member whose term has expired must be elected by owners who are members of the property owners' association. A board member may be appointed by the board to fill a vacancy on the board. A board member appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position.

The first link has nothing in regards to directors, nothing. The second, based on Section 209.00593, shows the director, once appointed, served out the unexpired term.

I agree, the type of association and the governing documents will dictate how long an appointee shall serve. I am focused on Section 81 and 82 associations and have not managed a 209 association in several years.

However, none of that discussion is relevant to the OPs concern about the the name of the person who resigned appearing on the Proxy/Ballot. Trista's concern is the chain of previous events, and not how long a person appointed to a vacancy shall serve on a Board.

It matters not which section of the property code is applicable to the OPs association, the person who resigned, if qualified under the Bylaws to serve, is a viable candidate for a vacancy on the Board regardless of previous service as an appointed (or even elected) member of the Board who resigned, regardless of when the resignation took place, assuming there is no language in the Governing Documents which states otherwise.

Regardless of the statements of the person who resigned and is now a candidate, this may simply be a tactic to be elected to a full term slot on the Board (if there is one) as opposed to being appointed to serve out (Section 209) or elected to serve out (Section 81 or 82) the remaining term of a resigned seat on the board.

The foregoing assumes, of course, the board members are elected to staggered terms of longer than one year. Three years seems to be the norm for staggered term associations. If this is an association with one year terms and every board member is up for election every year, the entire discussion is moot, regardless of which property code section governs the association.

Max

In broad general terms, condominium associations in Texas are governed by Section 81 or Section 82 of the Texas Property Code, depending on the date of original formation of the corporation.

Someplace in the governing documents of the Association, language should exist which states the condominium regime was organized under the Texas Condominium Act (Section 81) or the Texas Uniform Condominium Act (Section 82) also known as the 'TUCA'. Citations to the property code Section or Chapter number may or may not be present.

Caveats:

1. Section 81 organizations may elect to be governed by Section 82 after it was implemented, I believe in 1994.

2. Some condominium associations may use the term 'Homeowners Association' in the corporate name but they are in reality a condominium association. Two of our clients are so named. The word condominium may not appear in the corporate name at all, as is the case of 3 other of our clients.

3. The Texas Legislature, in its infinite wisdom, has implemented changes to Section 82 of the Property Code which also apply to Section 81 Associations. They did so in the most recent regular session which adjourned in late May or June to require condominiums governed by either section to implement association document access and retention guidelines and provisions which are already required for Section 209 Homeowners Associations.

In similar broad general terms, Homeowners Associations are governed by Section 209 of the Property Code. The formation documents similarly should (must?) contain language stating the entity is incorporated as a homeowners association governed by Section 209 of the Property Code or words to that effect.

Associations in some counties, while falling under Section 209, have certain carve-outs depending on the county in which they are located, or adjacent counties. I am not familiar with the reasons and logic for such exceptions.

I'm not going to address how the corporation code and other laws higher up the food chain fit into this, if we find ourselves dealing with such issues we seek advice and counsel from our or the association attorney.

Our docs are quite clear. Any Director appointed by the BOD, fills out the term of the person they are replacing. I believe this was done to keep our 5 person BOD in rotation of three being up for election one year. Two up for election the next year.

We shot that in the ass last year with no election so all 5 spots will be open this year. If we have 5 or more we will take the largest 3 vote getters for a two year term. The lesser 2 vote getters for a one year term. My expectation is we will go begging for people to be on the BOD. We BOD will be discussing that scenario prior to this years election.

Given the numerous political remarks I have made here, and how no one has told me to knock it off, it would be hypocritical to object to the same by others. So:

Very well.

Well some of us would call such a move wise.

I would have to see all the proposed bill's provisions to see if this seriously could be done without chaos ensuing.

Regarding your other comments: Duly noted.

Max, I would ask for a time out to research the answer.

Our client associations range in age from 41 years to 5 years. Some are Texas Property Code Chapter 81 associations, other are Chapter 82 associations.

Some of the wording in the documents of the 41 year old association is identical to that found in the documents of the 5 year old association, most of it is not.

That being the case, we have found we must research everything every time to ensure we provide a correct response.

To complicate matters from a personal perspective, our home is located in a Section 209 homeowners association. My wife is the vice-president, I served as a member of the board for 8 years, including 5 as president.