Board Members with expired terms wont step down

Started by KarenD3 • 7 replies • 354 views

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KarenD3 (Missouri)
Posts: 2

Posted:

I live in a HOA community with 94 homes. We usually have 3 trustees.
In June 2023 there was only One elected Trustee remaining- term expired 6/30/24. That elected trustee "appointed" 2 other Homeowners to be trustees with terms expiring in June 2024.

Appointing trustee isnt allowed in our Covenants.

We have informed the President that he could not just "appoint trustees" That requires a special election.

The President informed me he could appoint anyone to be a Trustee. In May, 2024 He organized an annual meeting. He said during that meeting that voting for new Trustees was tabled - so people could "think about it".

In the mail today we received a Newsletter that anyone interested in serving should contact any board member so ex President can make Ballots for a meeting in Sept. to elect new Trustees.

However, none of the people on "the board" are Valid Trustees. They have no power to do anything for the HOA.

Any advice on this would be welcome.

SheliaH (Indiana)
Posts: 6,964

Posted:

The covenants usually dictate how the common area is to be used and bylaws dictate how the association is to be run (e.g. terms of board members) are you sure you looked in the right spot?

Generally, the last board member standing could appoint board members to serve - or talk to the association attorney about placing the association in receivership due to a lack of homeowners willing to serve. Read a few conversations on this website about receivership or Google it and you’ll see how he probably did you a solid by at least selecting someone to help.

Consider how you got to this point - all of you knew you were down to one board member - why didn't anyone (including you) step up? The association can't run itself and if there is no board, that puts the president, appointees (such as they are) and every single homeowner (yes, you too) at personal risk if a disaster should occur or someone got injured on association property.

This isn't a pleasant situation, so I suggest all of you get hold of yourselves and hold that election as soon as possible to get some people elected so the association can function like it's supposed to. September will be upon us shortly, do try to get sonething scheduled before the middle of the month. I don't know why the other members stepped down- I'd start that meeting with a presentation by each of them explaining why. The rest of you should keep quiet and listen- you may hear something you won't like, but just because you don't like it doesn't mean it isn't true. Maybe these folks became burned out or really weren't up to the job in the first place - I would hope they'd be honest about that.

After that, let's hope you have at least two people step up - you might need three because I wouldn't be surprised if the president tells all of you about yourselves and to go play in traffic for all he or she cares, resigns, effective immediately and then walks out. Yes, he's partially responsible for this because he should have had a come to Jesus meeting with the homeowners long before things got to this point.

Oh, and YOU may need to be one of the new members, so consider taking the president's suggestion about considering what the job entails and if you're willing to work accordingly. If not, you can always volunteer our an advisory committee that can do more detailed research on certain association issues and make recommendations to the board to consider.

Until then, you may need to postpone major decisions other than paying the bills - the president may be able to authorize that because the association's creditors don't care how screwed up the community is - if they provided a service they expect to be paid in full and on time. Good luck to you.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

LetA (Nevada)
Posts: 2,679

Posted:

Generally speaking if the HOA sends out nomination letters to all the homeowners and no nomination form is returned, any board member is
re-elected via acclimation.

You should check your governing documents, there likely is a provision where sitting board members can appoint a homeowner to fill a
vacant position on the board, it happens all the time and is perfectly legal.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quite common that sitting board members can appoint a homeowner to fill a
vacant position on the board, it happens all the time and is perfectly legal. The main question does the appointed person fill the term of the appointed person or only to the next election cycle? In our case, they fill the balance of the term of the person they replaced.

CathyA3 (Ohio)
Posts: 6,299

Posted:

The remaining board members usually always have the authority to appoint people to vacant board positions. An association can't hold an election every time a director steps down. (If my community had to hold elections every time someone resigned, we'd be holding three or four elections a year, and the board wouldn't get anything else done.)

The only quibble is that the entire board does the appointing. It's not just the President's decision - the same as with any other board decision.

I agree with other commenters. The authority to appoint will be in the bylaws, not in the covenants (unless you're in a state that lumps these two documents together or calls them something different). And - also depending on state law - the appointed directors serve either until the next annual meeting, or they serve out the remainder of whatever term they were appointed to. Serving only until the next annual meeting is almost certainly incompatible with staggered terms (it's a long-ish explanation, but I'd be happy to run through it if someone is interested).

DeanJ
Posts: 1,786

Posted:

Are you certain vacancies cannot be filled by appointment? This would be a rather odd declaration.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Karen,

Expecting that your Association is incorporated under Missouri Nonprofit Corporation Law, most associations are, but check to be sure.

What do your governing documents say about vacancies?

If they are silent, the applicable statute allows the board to appoint individuals to vacant seats with the appointed individual serving until the next election. However, if nobody is running, they would continue to serve.

See: 355.361. Vacancy on board. which states [emphasis added]:

1. Unless the articles or bylaws provide otherwise, and except as provided in subsection 2 of this section and subsection 3 of this section, if a vacancy occurs on a board of directors, including a vacancy resulting from an increase in the number of directors:

(1) The members, if any, may fill the vacancy; if the vacant office was held by a director elected by a class, chapter or other organization unit or by region or other geographic grouping, only members of the class, chapter, unit or grouping are entitled to vote to fill the vacancy if it is filled by the members;

(2) The board of directors may fill the vacancy; or

(3) If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office.

2. Unless the articles or bylaws provide otherwise, if a vacant office was held by an appointed director, only the person who appointed the director may fill the vacancy.

3. If a vacant office was held by a designated director, the vacancy shall be filled as provided in the articles or bylaws. In the absence of an applicable article or bylaw provision, the vacancy may not be filled by the board.

4. A vacancy that will occur at a specific later date, by reason of a resignation effective at a later date under subsection 2 of section 355.341 or otherwise, may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.

See: 355.331. Terms of directors, generally which states [emphasis added]:

1. The articles or bylaws shall specify the terms of directors. Except for designated or appointed directors, the terms of directors may not exceed six years. In the absence of any term specified in the articles or bylaws, the term of each director shall be one year. Directors may be elected for successive terms.

2. A decrease in the number of directors or term of office does not shorten an incumbent director's term.

3. Except as provided in the articles or bylaws:

(1) The term of a director filling a vacancy in the office of a director elected by members expires at the next election of directors by members; and

(2) The term of a director filling any other vacancy expires at the end of the unexpired term which such director is filling.

4. Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated or appointed and qualifies, or until there is a decrease in the number of directors.

TimB4 (Tennessee)
Posts: 21,059

Posted:

My suggestion, once you verify that your Association is incorporated under the statute I posted earlier, would be to contact the board and ask why the seats of the appointed directors are not up for election as required by the statute 355.331(1)(3)(1)?

Let us know how they respond.

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