Virginia -

Started by ChuckS7 • 9 replies • 234 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

ChuckS7 (Virginia)
Posts: 9

Posted:

One of our directors is facing a recall election next month. I have a question about how to calculate the majority of votes needed to recall him. Neither our articles of incorporation or bylaws address removal of directors at all, so I’m relying on state law for guidance.

The Virginia Nonstock Corporation Act § 13.1-860. Removal of directors., states “… unless the articles of incorporation require a greater vote, a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected.”

We have 31 lots/members entitled to vote. My first thought was that we need 16 votes to recall him. But since our participation has historically been low, I’m concerned we won’t even get 16 votes cast, let alone all 31. So assuming low turnout, can we fall back on a majority of votes cast by members entitled to vote?

For example, we have 20 votes cast, with 12 votes to remove the director and 8 votes to allow him to remain on the board. Given this scenario, there’s a majority of members voting to remove him, but not the 16 the state law seems to require.

Or am I overthinking this and we go with the majority of total votes cast?

Thanks in advance.

ElleN (Idaho)
Posts: 4,420

Posted:

My take: The "entitled to be case at an election of directors" says to me that 16 votes are needed to recall the director. Reading into the statute additional words like "a majority of the votes at a meeting where quorum is met" is not appropriate.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

You say:

a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected.”

You have 31 entitled to cast a vote so 16 would be a majority.

MarkB28 (New York)
Posts: 40

Posted:

A majority of votes cast in removing a Board Member is sufficient. However, you MUST MAKE A QUORUM to conduct legitimate business. Quorum numbers may vary but generally it's half. So with 31 Lots it would have to be 16 to make a Quorum. Of those sixteen it only takes a majority to remove. Theoretically you could have 2 in the affirmative and 1 in the negative and 28 abstain and that would still be enough to remove the Board Member.

KerryL1 (California)
Posts: 14,550

Posted:

I don't think it's correct to say they only need a majority of quorum. Statute states this HOA needs "...a majority of the votes entitled to be cast at an election of directors..." "entitled to be cast" is sometime worded as "eligible voters" or "voting power."

It may not matter, Chuck, but what do your bylaws say about quorum needed, if any, to recall directors?

(Btw, in my CA HOA, our restated bylaws have no quorum requirement for election of directors or amendments to the Bylaws or CC&Rs, but does require a quorum of 25% for a recall.)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MarkB28 on 07/16/2023 11:04 AM
A majority of votes cast in removing a Board Member is sufficient. However, you MUST MAKE A QUORUM to conduct legitimate business. Quorum numbers may vary but generally it's half. So with 31 Lots it would have to be 16 to make a Quorum. Of those sixteen it only takes a majority to remove. Theoretically you could have 2 in the affirmative and 1 in the negative and 28 abstain and that would still be enough to remove the Board Member.

Mark

Pay attention to things like "majority" of members and "majority" of a quorum. Many confuse the two. In our case, 20% of owners form a quorum but it is still requires 51% of ALL OWNERS to change a Bylaw and 2/3rds of ALL OWNERS to change a Covenant. Big difference.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By ChuckS7 on 07/15/2023 9:31 AM
One of our directors is facing a recall election next month. I have a question about how to calculate the majority of votes needed to recall him. Neither our articles of incorporation or bylaws address removal of directors at all, so I’m relying on state law for guidance.

The Virginia Nonstock Corporation Act § 13.1-860. Removal of directors., states “… unless the articles of incorporation require a greater vote, a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected.”

We have 31 lots/members entitled to vote. My first thought was that we need 16 votes to recall him. But since our participation has historically been low, I’m concerned we won’t even get 16 votes cast, let alone all 31. So assuming low turnout, can we fall back on a majority of votes cast by members entitled to vote?

For example, we have 20 votes cast, with 12 votes to remove the director and 8 votes to allow him to remain on the board. Given this scenario, there’s a majority of members voting to remove him, but not the 16 the state law seems to require.

Or am I overthinking this and we go with the majority of total votes cast?

Thanks in advance.

You'll need at least 16 votes to remove this Director. If your HOA articles feature a higher threshold, you must respect your community documents. This is made difficult by design.

ChuckS7 (Virginia)
Posts: 9

Posted:

Quote:

Posted By KerryL1 on 07/16/2023 1:04 PM
I don't think it's correct to say they only need a majority of quorum. Statute states this HOA needs "...a majority of the votes entitled to be cast at an election of directors..." "entitled to be cast" is sometime worded as "eligible voters" or "voting power."

It may not matter, Chuck, but what do your bylaws say about quorum needed, if any, to recall directors?

(Btw, in my CA HOA, our restated bylaws have no quorum requirement for election of directors or amendments to the Bylaws or CC&Rs, but does require a quorum of 25% for a recall.)

Our bylaws state we only need 10% of members for a quorum, so only 4 members for a meeting. The bylaws, covenants and articles of incorporation don’t have any provisions for removing directors.

KerryL1 (California)
Posts: 14,550

Posted:

Thanks, Chuck.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Chuck,

You'll need 17 people to attend the meeting and have 16 to vote against the director. Since there's no provision listed, the sitting director could vote in his/her interest.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here