Who has priority

Laura,

Note that the state law begins with the statement: "Notwithstanding any provision of the declaration or bylaws to the contrary,. . .". This means no matter what your docs say, this state law prevails. Read it carefully and follow it to a "T".

A majority vote of the members entitled to vote at a meeting called for removal of a member is required for a successful removal. "Members who are entitled to vote" means those members who are not delinquent or in violation of the CCRs, IF that is specified in your docs. There may be 100 members in the assn but only 80 attend the meeting; therefore the majority is based upon the 80 attending, minus any who are not entitled to vote. The quorum for the meeting is based upon 20% of the membership or 1,000 votes, whichever is less.

The statute also calls for a petition to be circulated and presented to the board. The board has 30 days to call a special meeting, which must be noticed and IAW state law (33-1804 (planned communities) or 33-1248 (condos). A petition to recall the same member of the board cannot be submitted more than once during that board member's term of office.

Make certain to follow the provisions of the statute exactly as written. Good luck!

oooh, i know this one!

In arizona, you cannot use proxy voting. the legislators took that away from us a couple years ago.

So, you cannot have your out of state owners use a proxy to vote. However, they MIGHT be able to give power of attorney to someone in state, to vote AS them, and thereby end around the proxy ban. However, this is a really really bad idea: giving up power of attorney can be a huge issue.

Marry - you said:
Note that the state law begins with the statement: "Notwithstanding any provision of the declaration or bylaws to the contrary,. . .". This means no matter what your docs say, this state law prevailst"

I'm wondering about that. To me it says, "Unless there's anything in the declaration or bylaws that is different, . . . "

Maybe we can get George to clarify

SusanW, I would have interpreted "Notwithstanding" as you did.

Go figure...............

Always something to be learned here.

That's why lawyers make so much money, we laymen keep misenterpreting their language.

They must sit in college law classes and laugh going, "Hey listen everybody, here's a good one; you know the word notwithstanding? Well idiots (non-lawyers) will think it means "this" when used at the beginning of a sentence but actually we'll have it mean "this"....... and since we have a degree on our office walls that the idiots (non-lawyers) don't have we can charge them a lot of money to learn the difference. (everyone in class erupts in laughter...)". I may have been born at night but it wasn't "last" night!!!!!!!!! I know how things work....... ;)

Dana

Friedly reminder, you guys are NOT attorneys, CPAs, or the highest authority on HOAs in the country. Your opinions are just that, opinions as the disclaimer on this website says.

Ouch! That hurt!

You are correct; we are actually the biggest morons to walk the planet Susanna. The fact that we each put in more time than any of those above and do it all for "free" no less (for our communities) just shows how dumb we are.

And yet people ask our advice? How silly are they?

What's your problem, Susanna? I know of no one here who's ever claimed to be an attorney or CPA unless they actually are! If you're referring to my "opinion" regarding the meaning of "notwithstanding"; I don't need to be an attorney, or have an attorney tell me, the meaning of the word!! All that's required is a look up in your dictionary!

Mary said: This means no matter what your docs say, this state law prevailst"

With that reasoning: If the state law trumphs all bylaws and declarations, then why even have them?

I think that if your bylaws say that you must have a 2/3 vote for a procedure, and the state law says you must have a majority to pass the procedure, your own bylaws take precedent.

Susan,
This statement is right and wrong--"Mary said: This means no matter what your docs say, this state law prevailst"

The State laws are higher in guideance IF the governing documents do NOT address the subject or if the State laws say notwithstanding nor may they contradict with each other. In that case, the State laws have priority. This is one of those "who's on first" situations.

Susan,

If the state statute is prefaced with the phrase, "notwithstanding any provision in the declaration, bylaws or other documents to the contrary,. . ." then the state law prevails. Notwithstanding means "in spite of the fact that". I didn't say state law trumps all bylaws and covenants, I said it depends upon the wording of the state law. There are some state laws that do defer to the bylaws and covenants in which case they say, "unless otherwise provided in the provisions of the bylaws and declaration" or words to that effect.

I keep hearing the word "trump" being tossed around loosely. Isn't this a case of the state law being least restrictive as compared to the rule described in the CCR's. If the state law doesn't have a direct conflict with the CCRs and the state law is not as restrictive as the CCR's; wouldn't the Rules as described in the CCRs apply here?

Mary I think that you're mixing apples and oranges here. The CCRs maintain that they need a simple majority of more than 50% ot the entire membership and the state law says that you need 20% of the membership in order to establish quorom. CCRs are addressing total number of votes required and the state is defining Quorum. In addition, the state maintains that you needs a simple majority. I submit that the CCRs are more restrictive since it calls for the simple majority of the entire membership and not just 20%.

I would love for one of the sponsors to weigh in on this one.

Mike,

First of all, I understood the OP to say a majority of the membership is required for both the quorum and the vote. The state statute addresses both the quorum and the vote requirement. But, regardless of what the CCRs or bylaws say, and regardless of whether the CCRs are more restrictive or not, the state statute prevails, as I explained earlier.

No matter what you say or think, I will not back down on my opinion. I don't mean to sound arrogant, it's just that I "know" I am right on this one.

Laural,

Recalled member running again?? This is when the membership needs to take over and make sure they vote to keep a recalled Board member off of the Board. I know of no rule that says that they may not run again. VOTE, VOTE, VOTE!

With all your good advice and lots of work we had our recall vote last night and the president was recalled!!!! Our annual meeting is in two weeks where we will fill two vacant positions and would you believe he has put his name in the running!!!We weren't expecting him to go off quitley but he is full of surprises. I am in shock. What advice do you all have for me now?

Laura,

Well, some people never learn. Can't imagine who would vote for him (except his closest friends and himself!). But, if he does get re-elected then he can be recalled again, since this would be a new term of office.

I would suggest including a statement in the annual meeting notice -- something to this effect:

"There are two vacancies on the board, one of which was created by the recall of John Smith." This would serve as a reminder to those with short memories!