Question about holding our first "all resident board" election

DavidG45 (Delaware)
Posts: 994

Posted:

Apologies in advance for a LOOOONG post.

I am the sole resident board member on an HOA board for a community that is still under developer control, but is approaching our 75% benchmark which will require the developer to turn control of the HOA Board over to the residents. Currently, the Board consists of myself, a representative of the developer (Board President) and one other person from the developer who I have never seen or heard from. Basically, the Board president speaks for he and the 3rd member.

The Board President has always been pretty disengaged, but we did hold be-weekly phone calls with our PM to discuss things, so we managed to function. However, the last few months he has completely disengaged. He has cancelled our phone calls, does not respond to emails or texts, and has completely gone silent. This presents an impending issue, and I'm curious what my options are.

The Bylaws (posted at the end) specifically say that no later than 60 days after the 75% benchmark (the Declarant Control Termination Date) "the Lot Owners must elect an Executive Board." However, it does not detail how the election is to be held, and suggests that this election may be held earlier than the Termination Date. What I would like to do is this: when we reach the 75% benchmark I would like to hold an election to name our new board of all owners. Then, at 60 days after that date, we hold our first meeting and start functioning as the board.

This would all be easy if the Board President were engaged and cooperative. However, when we reached our first benchmark, in which the lot owners were given our first board representative, he was not cooperative and only submitted to it during an annual meeting that got pretty heated. So my assumption is that he will not cooperate here. If that is the case, can the Lot Owners simply hold an election organized by myself and the PM? Or does the Board actually have to vote to hold an election that is required by our Bylaws?

*************************************************************************

BYLAWS (formatted to make it a bit easier to read)
The affairs of the Planned Community shall be governed by a Board of Directors known as the Executive Board. Persons eligible to serve as members of the Executive Board are natural persons who are designees of the Declarant, or Lot Owners.

The Executive Board shall initially consist of the three (3) persons named in the Declaration. The Declarant shall have the right, in Declarant’s sole discretion, to replace all initial Executive Board members, and to select and designate their successors and thereafter remove Executive Board members and designate their successors from time to time, until not later than sixty (60) days after the conveyance of twenty five percent (25%) of the Lots that may be created in the Planned Community to Lot Owners other than Declarant(the “First Benchmark”).

During the period from the First Benchmark until no later than the earlier of:
• (i)sixty (60) days after the conveyance of seventy five percent (75%) of the Lots that may be created in the Planned Community to Lot Owners other than Declarant
• (ii) two (2) years after Declarant and any other declarants as defined in Section 81-103 (16) of the Act have ceased to offer Lots for residential purposes for sale in the ordinary course of business
• (iii) two (2) years after any right to add new Lots for residential purposes was last exercised, or
• (iv) the day the Declarant, after giving written notice to Lot Owners, records an instrument voluntarily surrendering all rights to control activities in the Corporation (the “Declarant Control Termination Date’),

one (1) member of the Executive Board is to be elected by the Lot Owners pursuant to Section 2 of Article II of these Bylaws and the remaining two (2) members are to continue to be selected and designated by Declarant.

Not later than Declarant Control Termination Date, the Lot Owners must elect an Executive Board of five (5) members, who must be Lot Owners, and at least one of whom must be a Legacy Owner.

AugustinD
Posts: 3,698

Posted:

DavidG45, I read your entire post. Good question.

The PM acts at the direction of a board majority. Furthermore, HOA resources (money) are to be used only at the direction of a board majority. Unless you can get a board majority vote to run the election (which involves the use of HOA resources), then no, I do not think the PM is obliged to work with you alone to make this election happen.

If the PM went "rogue," then all the board majority would have to do is fire him/her.

Here is what I advise:

When the time is right (with 75% of the lots have been conveyed), and pursuant to state law and your governing documents, I think you could, as an owner (not a director) take steps to call a special meeting of the owners. The purpose of the meeting is to remove the old directors and elect new ones.

I strongly advise hiring an attorney for this and subsequently, seeking reimbursement. There is no guarantee that you will be reimbursed for this. Though maybe the new board will approve such a reimbursement as the right thing to do.

Also, consider researching your options with this Delaware government obmudsperson:

https://attorneygeneral.delaware.gov/fraud/cpu/ombudsperson/

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 8:17 AM
DavidG45, I read your entire post. Good question.

The PM acts at the direction of a board majority. Furthermore, HOA resources (money) are to be used only at the direction of a board majority. Unless you can get a board majority vote to run the election (which involves the use of HOA resources), then no, I do not think the PM is obliged to work with you alone to make this election happen.

If the PM went "rogue," then all the board majority would have to do is fire him/her.

Here is what I advise:

When the time is right (with 75% of the lots have been conveyed), and pursuant to state law and your governing documents, I think you could, as an owner (not a director) take steps to call a special meeting of the owners. The purpose of the meeting is to remove the old directors and elect new ones.

I strongly advise hiring an attorney for this and subsequently, seeking reimbursement. There is no guarantee that you will be reimbursed for this. Though maybe the new board will approve such a reimbursement as the right thing to do.

Also, consider researching your options with this Delaware government obmudsperson:

https://attorneygeneral.delaware.gov/fraud/cpu/ombudsperson/

Thanks, that all makes sense.

The link also might prove to be very helpful.

AugustinD
Posts: 3,698

Posted:

I think this Delaware HOA statute section is key:

81-308. Unit owner meetings.
A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having at least 20 percent, or any lower percentage specified in the bylaws, of the votes in the association. Except in cases of emergency meetings, which may be held without prior notice, not fewer than 10 nor more than 60 days in advance of any regular or special meeting of the unit owners, the secretary or other officer specified in the bylaws shall cause notice of that meeting to be delivered to each unit owner by any means described in § 81-127 of this title or sent prepaid by United States mail to any mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, or must state the website address where the agenda is located as provided in this section including: (i) a statement of the general nature of any proposed amendment to the declaration or bylaws; (ii) a statement that in the absence of objection from any unit owner present at the meeting, the president may add items to the agenda; (iii) any budget changes; and (iv) any proposal to remove an officer or member of the executive board. The agenda may be posted on the website of the association, in lieu of being included in the notice, provided that the association shall, by any means described in § 81-127 of this title, furnish to any unit owner who so requests a copy of the agenda prior to the meeting. Regardless of the agenda, unit owners shall be given a reasonable opportunity at any meeting to offer comments to the executive board regarding any matter affecting the common interest community. If the association does not notify unit owners of a special meeting within 30 days after the requisite number or percentage of unit owners requested the secretary to do so, the requesting members may directly notify all the unit owners of that meeting. Only matters described in the meeting notice required by this section may be considered at a special meeting.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 8:32 AM
I think this Delaware HOA statute section is key:

81-308. Unit owner meetings.
A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the executive board, or by unit owners having at least 20 percent, or any lower percentage specified in the bylaws, of the votes in the association. Except in cases of emergency meetings, which may be held without prior notice, not fewer than 10 nor more than 60 days in advance of any regular or special meeting of the unit owners, the secretary or other officer specified in the bylaws shall cause notice of that meeting to be delivered to each unit owner by any means described in § 81-127 of this title or sent prepaid by United States mail to any mailing address designated in writing by the unit owner. The notice of any meeting must state the time and place of the meeting and the items on the agenda, or must state the website address where the agenda is located as provided in this section including: (i) a statement of the general nature of any proposed amendment to the declaration or bylaws; (ii) a statement that in the absence of objection from any unit owner present at the meeting, the president may add items to the agenda; (iii) any budget changes; and (iv) any proposal to remove an officer or member of the executive board. The agenda may be posted on the website of the association, in lieu of being included in the notice, provided that the association shall, by any means described in § 81-127 of this title, furnish to any unit owner who so requests a copy of the agenda prior to the meeting. Regardless of the agenda, unit owners shall be given a reasonable opportunity at any meeting to offer comments to the executive board regarding any matter affecting the common interest community. If the association does not notify unit owners of a special meeting within 30 days after the requisite number or percentage of unit owners requested the secretary to do so, the requesting members may directly notify all the unit owners of that meeting. Only matters described in the meeting notice required by this section may be considered at a special meeting.

Yes, that seems to be the key to holding the special meeting. I am curious, though, about the 20%. Do you read that as 20% of the homes that have been conveyed (which would be about 460) or of the number at full built out (which would be about 650)?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 01/26/2022 8:37 AM
I am curious, though, about the 20%. Do you read that as 20% of the homes that have been conveyed (which would be about 460) or of the number at full built out (which would be about 650)?

DavidG45, this is another great question. What do the Bylaws and CCRs say about how votes are assigned to lots? Does a home's having a vote depend on whether the home has been conveyed? Do homes that are not full built out get a partial vote (voted by the Declarant)? In short, I would want to compute how many votes are available at this time. Then take 20% of this number.

Do clarify: For homes that have been conveyed, is it one vote per home?

Related aside: Based on owners' past success at your HOA getting a Special Meeting called so that an owner-director would be appointed to the Board, I am sort of thinking that the owners here, led yes by you, might demand a special meeting once again, and that this will get action. Such is my hope.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 8:46 AM

Posted By DavidG45 on 01/26/2022 8:37 AM
I am curious, though, about the 20%. Do you read that as 20% of the homes that have been conveyed (which would be about 460) or of the number at full built out (which would be about 650)?

DavidG45, this is another great question. What do the Bylaws and CCRs say about how votes are assigned to lots? Does a home's having a vote depend on whether the home has been conveyed? Do homes that are not full built out get a partial vote (voted by the Declarant)? In short, I would want to compute how many votes are available at this time. Then take 20% of this number.

Do clarify: For homes that have been conveyed, is it one vote per home?

Related aside: Based on owners' past success at your HOA getting a Special Meeting called so that an owner-director would be appointed to the Board, I am sort of thinking that the owners here, led yes by you, might demand a special meeting once again, and that this will get action. Such is my hope.

Thanks! Yes, it is one vote per home. And based on the last sentence in following section, it would appear the 20% requirement would apply just to lots that have been conveyed. I think...

**************************************

VOTING
Voting at all meetings of the Corporation shall be on a percentage basis and the
percentage of the vote to which each Lot Owner is entitled shall be one vote for each Lot. Where
the ownership of a Lot is in more than one person, then the person who shall be entitled to cast
the vote of that Lot shall be the person named in a certificate signed by all of the owners of the
Lot and filed with the Secretary. Such certificate shall be valid until revoked by a subsequent
certificate. The vote of each Lot shall be exercised as the owners of the Lot, among themselves
determine, but in no event shall more than one vote be cast with respect to any such Lot. In the
event of multiple or disputed votes by and between the applicable owners of a Lot, then such
votes shall be ruled invalid and the Executive Board shall disregard any such multiple or
disputed votes cast by the Lot Owners. Any such invalidated votes shall not, however, invalidate
or otherwise alter the effectiveness of such Lot Owners’ attendance at the meeting by proxy or
otherwise for quorum purposes. Whenever the approval or disapproval of a Lot Owner is
required by the Act, the Declaration, or these Bylaws, such approval or disapproval shall only be
made by the person who would be entitled to cast the vote for the Lot Owner at any meeting of
the Corporation, Except where a greater number is required by the Act, the Declaration or these
Bylaws, a majority of the Lot Owners is required to adopt decisions at any meeting of the
Corporation. If the Declarant owns or holds title to one or more Lots, the Declarant shall have
the right at any meeting of the Corporation to cast the vote to which such Lot is entitled. Votes
allocated to a Lot owned by the Corporation may not be cast and shall not be calculated either in
a quorum or in any percentage of Lot votes needed for any action by the Lot Owners.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 01/26/2022 10:33 AM
[snippage] based on the last sentence in following section, it would appear the 20% requirement would apply just to lots that have been conveyed. I think...

I think not. From what you posted from the Bylaws or CCRs:

If the Declarant owns or holds title to one or more Lots, the Declarant shall have the right at any meeting of the Corporation to cast the vote to which such Lot is entitled. Votes allocated to a Lot owned by the Corporation may not be cast and shall not be calculated either in a quorum or in any percentage of Lot votes needed for any action by the Lot Owners.

I believe the HOA corporation is a different entity from the Declarant.

A bit of education: Who signed at the bottom of the Declaration? I think one to several corporations will be listed.

Once in awhile, a HOA corporation will take ownership of a home. E.g. through foreclosure, or possibly purchasing the unit from the Declarant. This is when corporate-owned homes would not be permitted a vote, per the last sentence of the Bylaws/CCRs above.

The Delaware HOA statute has a similar statement:

Votes allocated to a unit owned by the association may not be cast and shall not be calculated either in a quorum or in any percentage of unit votes needed for any action by the unit owners.As interested, see https://delcode.delaware.gov/title25/c081/sc03/index.html

You could look up the property taxes on any lot in question, and see who is listed as the owner. I presume the lots that the Declarant owns are titled to his/her company and not the HOA corporation. (I could be wrong. Maybe someone else, like CathyA3 who works with developers, builders and such, can chime in. Or someone who has had homes owned by the HOA corporation.)

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 12:36 PM

Posted By DavidG45 on 01/26/2022 10:33 AM
[snippage] based on the last sentence in following section, it would appear the 20% requirement would apply just to lots that have been conveyed. I think...

I think not. From what you posted from the Bylaws or CCRs:

If the Declarant owns or holds title to one or more Lots, the Declarant shall have the right at any meeting of the Corporation to cast the vote to which such Lot is entitled. Votes allocated to a Lot owned by the Corporation may not be cast and shall not be calculated either in a quorum or in any percentage of Lot votes needed for any action by the Lot Owners.

I believe the HOA corporation is a different entity from the Declarant.

A bit of education: Who signed at the bottom of the Declaration? I think one to several corporations will be listed.

Once in awhile, a HOA corporation will take ownership of a home. E.g. through foreclosure, or possibly purchasing the unit from the Declarant. This is when corporate-owned homes would not be permitted a vote, per the last sentence of the Bylaws/CCRs above.

The Delaware HOA statute has a similar statement:

Votes allocated to a unit owned by the association may not be cast and shall not be calculated either in a quorum or in any percentage of unit votes needed for any action by the unit owners.As interested, see https://delcode.delaware.gov/title25/c081/sc03/index.html

You could look up the property taxes on any lot in question, and see who is listed as the owner. I presume the lots that the Declarant owns are titled to his/her company and not the HOA corporation. (I could be wrong. Maybe someone else, like CathyA3 who works with developers, builders and such, can chime in. Or someone who has had homes owned by the HOA corporation.)

Yes, I read that again after posting and I think you are right. I'm not too concerned about that, I'm sure we could get 20% to sign a petition for a Special Meeting given the degree of anger residents hold towards the Developer - not a good history here. And, yes, the Developer is the owner of the remaining lots, not the HOA.

But it does raise another question. When we held our first election for our single board member, only Lot Owners voted. Should the Declarant be allowed to vote for Board members with their remaining 100+ votes? Not that they would, but it does seem odd that unconveyed lots could vote for Board members.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 01/26/2022 12:46 PM
[snip]the Developer is the owner of the remaining lots, not the HOA.

But it does raise another question. When we held our first election for our single board member, only Lot Owners voted. Should the Declarant be allowed to vote for Board members with their remaining 100+ votes? Not that they would, but it does seem odd that unconveyed lots could vote for Board members.

By my reading of the section you posted and the Delaware HOA statute, the owner of a lot is allowed to vote, as long as the owner is not the HOA corporation.

That the Declarant may not have conveyed the lots it owns does not seem relevant to whether the lots get a vote.

But maybe I am missing something. Why does the Declarant voting on behalf of the lots the Declarant owns seem not appropriate to you?

The Declarant, even with a board that is all post-conveyance owners, certainly still has an interest in what the HOA does.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 1:14 PM

Posted By DavidG45 on 01/26/2022 12:46 PM
[snip]the Developer is the owner of the remaining lots, not the HOA.

But it does raise another question. When we held our first election for our single board member, only Lot Owners voted. Should the Declarant be allowed to vote for Board members with their remaining 100+ votes? Not that they would, but it does seem odd that unconveyed lots could vote for Board members.

By my reading of the section you posted and the Delaware HOA statute, the owner of a lot is allowed to vote, as long as the owner is not the HOA corporation.

That the Declarant may not have conveyed the lots it owns does not seem relevant to whether the lots get a vote.

But maybe I am missing something. Why does the Declarant voting on behalf of the lots the Declarant owns seem not appropriate to you?

The Declarant, even with a board that is all post-conveyance owners, certainly still has an interest in what the HOA does.

Well, if you look at the first post, in Delaware the "First Benchmark" is when, in the common parlance here, the "residents" get to vote for a board member, and the Declarant gets to select the other two. Given that the First Benchmark is when 25% of homes have been conveyed, the Declarant could simply cast their 75% of the votes for the person of their choice. Which would render the entire concept of the First Benchmark to be completely meaningless. What am I missing?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 01/26/2022 1:30 PM
if you look at the first post, in Delaware the "First Benchmark" is when, in the common parlance here, the "residents" get to vote for a board member, and the Declarant gets to select the other two. Given that the First Benchmark is when 25% of homes have been conveyed, the Declarant could simply cast their 75% of the votes for the person of their choice. Which would render the entire concept of the First Benchmark to be completely meaningless. What am I missing?

Good point. Before responding, I want to try to be thorough. You posted this excerpt:

one (1) member of the Executive Board is to be elected by the Lot Owners pursuant to Section 2 of Article II of these Bylaws and the remaining two (2) members are to continue to be selected and designated by Declarant.

Can you quote Bylaws Article II, Section 2 here?

Also is there a definitions section in the Bylaws or CCRs that defines "Lot Owner"? Again, to be thorough.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 01/26/2022 1:30 PM

Well, if you look at the first post, in Delaware the "First Benchmark" is when, in the common parlance here, the "residents" get to vote for a board member, and the Declarant gets to select the other two. Given that the First Benchmark is when 25% of homes have been conveyed, the Declarant could simply cast their 75% of the votes for the person of their choice. Which would render the entire concept of the First Benchmark to be completely meaningless. What am I missing?

Maybe the point is that, before 75% of the homes are conveyed, the Declarant has to run an annual election for one seat on the board. When the Declarant controls more than half the votes, you are right that the Declarant is going to get the person the Declarant wants elected. But at some point before 75% of the homes have been conveyed, the non-Declarant owners will have more than half the votes.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 1:41 PM

Posted By DavidG45 on 01/26/2022 1:30 PM
if you look at the first post, in Delaware the "First Benchmark" is when, in the common parlance here, the "residents" get to vote for a board member, and the Declarant gets to select the other two. Given that the First Benchmark is when 25% of homes have been conveyed, the Declarant could simply cast their 75% of the votes for the person of their choice. Which would render the entire concept of the First Benchmark to be completely meaningless. What am I missing?

Good point. Before responding, I want to try to be thorough. You posted this excerpt:

one (1) member of the Executive Board is to be elected by the Lot Owners pursuant to Section 2 of Article II of these Bylaws and the remaining two (2) members are to continue to be selected and designated by Declarant.

Can you quote Bylaws Article II, Section 2 here?

Also is there a definitions section in the Bylaws or CCRs that defines "Lot Owner"? Again, to be thorough.

******

Article II Section 2
Section 2. Annual Meetings.
XXXXX, a Delaware limited liability company (the “Declarant’’)
shall notify the Lot Owners of the existing Lots that an annual meeting of the Corporation has
been called, on or before the date at least ten (10) but not more than sixty (60) days prior to the
date of the first annual meeting of the Corporation. The first annual meeting of the Corporation
shall be held within one (1) year of the formation of the Corporation. Thereafter, annual
meetings of the Corporation must be held in each succeeding year at the time and place
determined by the Executive Board, no later than one (1) year following the previous annual
meeting. At such annual meetings the Executive Board, except to the extent otherwise provided
in Section 1 of Article III of these Bylaws prior to the Declarant Control Termination Date
(hereinafter defined), shall be elected by ballot of the Lot Owners in accordance with the
requirements in Section 4 of Article III of these Bylaws. The Corporation
may transact such other business at such meetings as may properly come before them.

*****

LOT OWNERS
There is nowhere that seems to specifically define a "Lot Owner" We do have:

Article II
Section 1. Composition.
All of the owners of Lots contained in the Planned Community, acting as a group in
accordance with the Act, the Declaration and the Bylaws, shall constitute the Corporation of Lot
Owners, which has been incorporated as THE PRESERVE AT DEEP CREEK PROPERTY
OWNERS CORPORATION, a Delaware non-profit corporation (the “Corporation”). This
Corporation shall have the responsibility of administering the Planned Community, maintaining
the Common Elements and Lawn Areas, establishing the means and methods of collecting the
contributions to the Common Expenses, arranging for the management of the Planned
Community and performing all of the other acts that may be required to be performed by the
Corporation pursuant to the Act and the Declaration. Except as to those matters which the Act
specifically requires to be performed by the vote of the Lot Owners, the administration of the
foregoing responsibilities shall be performed by the Executive Board as more particularly set
forth in Article III.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 1:49 PM

Posted By DavidG45 on 01/26/2022 1:30 PM

Well, if you look at the first post, in Delaware the "First Benchmark" is when, in the common parlance here, the "residents" get to vote for a board member, and the Declarant gets to select the other two. Given that the First Benchmark is when 25% of homes have been conveyed, the Declarant could simply cast their 75% of the votes for the person of their choice. Which would render the entire concept of the First Benchmark to be completely meaningless. What am I missing?

Maybe the point is that, before 75% of the homes are conveyed, the Declarant has to run an annual election for one seat on the board. When the Declarant controls more than half the votes, you are right that the Declarant is going to get the person the Declarant wants elected. But at some point before 75% of the homes have been conveyed, the non-Declarant owners will have more than half the votes.

The thing is, as a practical matter here, every HOA follows the same process. When 25% of the homes have been conveyed the residents - and only the residents - get to vote for a board member. At 75% the residents - and only the residents - elect a fully board. This is confirmed by every other HOA member I speak to, every property management company, as well as our attorney. Not only that, but even if the residents got 75% of the votes, those votes will be split among multiple candidates. So the Developer, with could still overwhelm the divided residents with their 25% block.

It just seems that how things are actually done here don't seem to match the verbiage. Which makes it difficult for me to extrapolate other rules.

However, in our particular case the important thing is getting enough sigs for to hold a Special Election. That is the starting point.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 01/26/2022 2:05 PM

The thing is, as a practical matter here, every HOA follows the same process. When 25% of the homes have been conveyed the residents - and only the residents - get to vote for a board member. At 75% the residents - and only the residents - elect a fully board. This is confirmed by every other HOA member I speak to, every property management company, as well as our attorney.

Thank you for sharing this and the excerpts from your Bylaws. I pondered this reality, then went looking at the Delaware UCIOA (HOA) statute. I think this is the answer, from UCIOA section 81-303:

(d) Not later than 60 days after conveyance of 25 percent of the units that may be created to unit owners other than a declarant, at least one member and not less than 25 percent of the members of the executive board must be elected by unit owners other than the declarant.

When there is a bona fide conflict between the statute and the Bylaws, the statute will prevail. This means some of my posts above are erroneous. I think it's also a bit of good news for you all, when it comes to electing directors with the Declarant still owning a number of lots.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 01/26/2022 2:21 PM

Posted By DavidG45 on 01/26/2022 2:05 PM

The thing is, as a practical matter here, every HOA follows the same process. When 25% of the homes have been conveyed the residents - and only the residents - get to vote for a board member. At 75% the residents - and only the residents - elect a fully board. This is confirmed by every other HOA member I speak to, every property management company, as well as our attorney.

Thank you for sharing this and the excerpts from your Bylaws. I pondered this reality, then went looking at the Delaware UCIOA (HOA) statute. I think this is the answer, from UCIOA section 81-303:

(d) Not later than 60 days after conveyance of 25 percent of the units that may be created to unit owners other than a declarant, at least one member and not less than 25 percent of the members of the executive board must be elected by unit owners other than the declarant.

When there is a bona fide conflict between the statute and the Bylaws, the statute will prevail. This means some of my posts above are erroneous. I think it's also a bit of good news for you all, when it comes to electing directors with the Declarant still owning a number of lots.

Thanks for taking so much time on this! That clears things up.

AugustinD
Posts: 3,698

Posted:

Good thread. I learned something.

DavidG45, if you can get directors as competent and dedicated as yourself (in a world where competence that to me, seems hard to find), you all will have an amazing HOA.