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Started by RicH1 • 21 replies • 1832 views

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RicH1 (Georgia)
Posts: 23

Posted:

If you have served on the Board of Directors as the Secretary for over 2 years and live with the president, but aren't on the deed(Secretary). Also you are not married but have been together since common law marriage, but now the treasurer wants to take over and is mad that she can't have her way. The treasurer wants to control everything, but the Secretary let her have it one day. Now she wants to say that Secretary isn't on the deed and that 2 votes can't be counted from the same household. Remember that President and Secretary have held position for over 2 years, because no one wanted the president nor secreataries position. Does the treasurer have grounds to dismiss the secretary, especially if you are volunteering and have got a lot accomplished every since? What is the worst that can happen if the Secretary and President live together and continue to do what we've been doing and no one ever said anything?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Look up your bylaw requirement for officers. How do they get elected?

Does it say anything about one officer per household, or even that an officer MUST be a member?

RicH1 (Georgia)
Posts: 23

Posted:

We got elected at our HOA meeting, because no one wanted to do it. It says that the President and Secretary can't hold office at the same time, same place. Also, I live there but I am not a Home Owner, and I don't understand what marital status has to do with anything, since we aren't getting paid. What are we doing wrong?
Thank you so much for responding.

AnnaD2 (Florida)
Posts: 960

Posted:

As Susan said: READ YOUR DOCUMENTS. This should be addressed somewhere in there. Ours state that ONLY a deeded owner may serve on the board of directors. In Florida a husband and wife may not both serve on the board at the same time. I also doubt that "common law marriage" is legal or recognized in many (if any) states anymore. But I doubt anyone would complain if any "resident" volunteered to "get a lot done" around there if you'd like to be on a committee.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Rich,

As Susan and Anna have stated, your bylaws should answer your question. It should be stated whether or not non-owners can be board members. If not, then you are not authorized to serve on the board. Your name must be on the deed to be considered an owners. A "spouse" of a common law "marriage" doesn't cut it and neither does a spouse of a sanctioned marriage. It's what is written on the deed that determines ownership. Also, not getting paid doesn't enter into this either. You may not be doing anything wrong, in fact both of you are to be commended for stepping up to the plate when no one else wanted to. However, if the bylaws state only members may serve then that's the way it should be done. As far as two members of the same household serving at the same time, that usually is not addressed in the bylaws or state law. FL seems to be the exception on this. Mostly it's just an unwritten rule.

AnnaD2 (Florida)
Posts: 960

Posted:

Rich, I should have added exactly what Mary also stated here. You ARE to be commended for your devotion and dedication to your association when "deeded" owners/residents won't step up to the plate.

It seems as if your treasurer wants to take on the extra task of secretary. So let her.

I'm in the same boat as you. I'm the secretary/treasurer of my association and I'm also the only one on my deed; yet my significant other of THIRTEEN years lives with me and has helped out; run errands; done small repair/painting work, spread mulch; etc.,etc., for the association since we moved here. He does it because he CARES; even when the "owners" always seem to want "someone else" to do it.

But no....he can't serve on the board....even though he'd be great.

RicH1 (Georgia)
Posts: 23

Posted:

Hi Anna D2 thanks for responding. To be clear, are you saying that I can't serve on the board, althouh I have done it wrong for 2 years and didn't know, because we were elected- nearly begged to do it? Could I be a committee member? What is the worst that can happen? The treasurer brought this out after getting upset because she couldn't control everything? Previously it wasn't mentioned. Shouldn't I be able to at least finish my term or be voted out?

EvaM1 (Florida)
Posts: 190

Posted:

Look up your bylaw requirement for officers. How do they get elected?
__

There seems to be some confusion about directors vs officers. IMO Directors are appointed by the membership. Officers are appointed by the Board of Directors. True?

In Florida, the Articles of Incorporations allow non-members to serve on the Board unless the by-laws state otherwise. If the by-laws state only members can serve on the Board then a non-member cannot run for the Board.
Don't forget, the by-laws are just a by-product of the Articles of Incorporation and if in conflict the Articles prevail.

EvaM1 (Florida)
Posts: 190

Posted:

In Florida a husband and wife may not both serve on the board at the same time.. Anna
__

Anna,

where in the world did you get that restriction from? Any Howmeowners' Association member can run for the board. And that is the law as far as I can tell.

The condo law may be changing that, but that is another story.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Rich - you need to ask the Treasurer to tell you what specific bylaw you are in conflict with.

If you served for 2 years - and someone is just now speaking up, then shame on them.

KirkW1 (Texas)
Posts: 1,665

Posted:

Regardless of how long you have already served, I would put money down that you can't legally serve on the Board and certainly not at the same time as the owner.

First, most HOA documents restrict Board members to members or members and their spouses. That would disqualify you altogether.

Second, I believe also limit it to one person per household serving on the Board at the same time.

I understand that someone should have said something two years ago. I also understand nobody wanted the positions. But in all likelihood you are not eligible to serve.

EvaM1 (Florida)
Posts: 190

Posted:

Does the treasurer have grounds to dismiss the secretary, especially if you are volunteering and have got a lot accomplished every since? What is the worst that can happen if the Secretary and President live together and continue to do what we've been doing and no one ever said anything?
___

IMO, the Treasurer alone can not dismiss the secretary. The removal of the Board member is stated in the by-laws. BUT the new HOA State law prevails. The Florida law says:

‘Regardless of any provisions to the contrary contained in the governing documents .. any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interest'.

You have to check your state law. And if the law is the same as the Florida law, then the Board would be required to send out ballots asking for your removal.

Or, you could step down.The Board could hire you as an officer in which case you do not have to be a member.

How many Board members do you have? Three or five?

EvaM1 (Florida)
Posts: 190

Posted:

‘First, most HOA documents restrict Board members to members ‘ Kirk
__
Kirk,
you may be right. But, do you really think it is a good idea? Why could not a daughter who lives with her mother (owner) serve on the Board? Or, a spouse who is automatically disqualified just because he is not on the deed? I am not sure I like this restriction for small communities at all; am seriously thinking about proposing an amendment to remove it. What do you think?

‘Second, I believe also limit it to one person per household serving on the Board at the same time.’Kirk
__

Does one person per household apply to HOAs in Texas? Not in Florida, not yet.
But I believe it may apply to Condos (another 'brilliant law').

MicheleD (Kentucky)
Posts: 4,491

Posted:

Well, several things here.

First, Kentucky still recognizes common-law marriage.

Second, there are, in fact, many HOAs that do allow for non-members to sit on the board and to be officers of the corporation.

Only the Original Poster's own documents will clarify that for her.

Third, our documents also allow for members of the same household to serve on the board at the same time.

And the votes made in board meetings are not the same as votes of the membership on items that require membership-only votes.

Board members vote on different types of things, like motions to buy garbage cans for the lake area (not a membership vote), or motions to select one contractor over another.

In these votes, "membership" status isn't an issue. Only whether or not one is on the board. If all board members lived in the same house (for some odd reason, if it worked out that way), they would all still have a vote in board-related "things to vote on."

Membership usually votes on things like amendments to the CC&Rs or the elections of the board of directors.

So in those votes, only one vote from the household is allowed.

KirkW1 (Texas)
Posts: 1,665

Posted:

Texas also recognizes common law marriages, though one may not desire the full effects of such recognition.

And while it is possible the HOA's bylaws allow non-members to serve on the Board, it would be unusual at least in this area.

The whole thing is that if the person does not have a legitimate standing on the Board, then any member of the HOA can make a claim against the standing. I would state that for them not to look in their documents and actually find out what the legal standing is would amount to breaching one's fiduciary duty. There is really no excuse to not look this up now.

As for the authority of the Treasurer, if in the right yes the person has the authority. If you fail to recognize it, then a suit could follow and it would not be good for the association. Another thing to consider: would the D&O insurance cover actions of the member who was not legitimately on the Board? While I am sure they would during the "I didn't know" phase, I have doubts about continued coverage after one pointed out they didn't have standing.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Kirk,

You said: "As for the authority of the Treasurer, if in the right yes the person has the authority." I'm sure you meant the Treas has the authority to question but not the authority to remove this board members. That is an action for the whole board to vote on. I agree this is something that needs to be researched and dealt with immediately. I'm sure at the time, no one was thinking about whether or not this was legal, only that "Great we finally have someone who will commit!!" And, as Michele pointed out, some docs do allow non-members to serve on the board; perhaps this is the case here. Then the only issue remaining is whether or not 2 members of the same household can serve at the same time. I think you'll find very few bylaws and/or state laws which address this; I think in most cases it's just unwritten law that they cannot. The mindset being -- one vote per lot.

EvaM1 (Florida)
Posts: 190

Posted:

Then the only issue remaining is whether or not 2 members of the same household can serve at the same time. I think you'll find very few bylaws and/or state laws which address this; I think in most cases it's just unwritten law that they cannot. The mindset being -- one vote per lot. Mary
__

Mary,

How true. I think it is a mind set as well; however the new Condo law may say and I paraphrase ‘two family members can serve on the Board providing they live in separate units.’ Ha.
I have four other people working with me on the Doc Reviews and one of them is my husband. One Board member is really upset about it and he is writing one complaint letter after another stating that ‘it is not legal because two family members cannot serve on the board and the same applies to Committees. Soon, I may have to ask him -nicely- where he got that idea from? I just do not like confrontations which don’t make any sense.

DanaB1 (Connecticut)
Posts: 319

Posted:

Quote:

Posted By RicH1 on 06/06/2009 1:49 PM
If you have served on the Board of Directors as the Secretary for over 2 years and live with the president, but aren't on the deed(Secretary). Also you are not married but have been together since common law marriage, but now the treasurer wants to take over and is mad that she can't have her way. The treasurer wants to control everything, but the Secretary let her have it one day. Now she wants to say that Secretary isn't on the deed and that 2 votes can't be counted from the same household. Remember that President and Secretary have held position for over 2 years, because no one wanted the president nor secreataries position. Does the treasurer have grounds to dismiss the secretary, especially if you are volunteering and have got a lot accomplished every since? What is the worst that can happen if the Secretary and President live together and continue to do what we've been doing and no one ever said anything?

RicH,

You bring up a litany of items that other posters are all addressing so I will only say this............

Many original documents comprised for the developer included the statement that board members need not be owners. What does yours state? You happen to have a very unique situation wherein you also both live in the same unit. Some documents address this and others don't. I've heard of associations wherein officers aren't even board members.

If this Treasurer wants to also be Secretary, do you think she will have the votes of your fellow board members to achieve this? A) the board needs to then remove you (with our without cause depending on your documents) and B) vote for her to fill the spot. If she doesn't have the votes to become Secretary then this whole issue is a mute point, is it not? Unless of course she'd be willing to then sue the association to try to garner the position. Not to say that she wouldn't win depending on your legal ability to be on the board.

EvaM1 (Florida)
Posts: 190

Posted:

but aren't on the deed(Secretary). Rich
__

Dana,

The way Rich describes the scenario one can safely assume that the board member must be the Association member and Rich is not. The question was if the Treasure can remove Rich from the Board?

Is it a three member Board?

President + Secretary + Treasurer where the President + Secretary live together and the Secretary is not a member then the Treasurer is right. It does not sound to me that the Treasurer wants all the power. It sounds to me that the President and Secy want all the power. While the Treasurer cannot remove Rich, I’d resign if I were Rich. And yes, Rich has been on the Board for two years, but the Treasurer may be a new member and perhaps wants to play by the rules?

If it is a five member Board a different scenario would apply. Rich does not say what the VP or assistant Secy say. And that bothers me.

DanaB1 (Connecticut)
Posts: 319

Posted:

Quote:

Posted By EvaM1 on 06/07/2009 12:07 PM
but aren't on the deed(Secretary). Rich
__

Dana,

The way Rich describes the scenario one can safely assume that the board member must be the Association member and Rich is not. The question was if the Treasure can remove Rich from the Board?

Is it a three member Board?

President + Secretary + Treasurer where the President + Secretary live together and the Secretary is not a member then the Treasurer is right. It does not sound to me that the Treasurer wants all the power. It sounds to me that the President and Secy want all the power. While the Treasurer cannot remove Rich, I’d resign if I were Rich. And yes, Rich has been on the Board for two years, but the Treasurer may be a new member and perhaps wants to play by the rules?

If it is a five member Board a different scenario would apply. Rich does not say what the VP or assistant Secy say. And that bothers me.

To answer your question Eva, no; the Treasurer can't remove Rich from the Board, but the owners can.

I don't see where Rich has stated a board member has to be an owner. I also haven't seen anything posted yet that states an officer has to be either an owner or a board member. I haven't seen anything yet that said two members of one household can't be officers.

Furthermore you raise the point as to voting rights; that has nothing to do with this situation as their documents most likely due address that point with the answer most likely being "one vote per household".

Plain truth is...... they have no volunteers, what is the treasurer's problem? What control does a secretary have? I never hear of Secretary's abscounding with thousands of dollars of the associations money.

What would be different in your opinion if it was a 5 member board?

Asst. Secretary? They can't even get enough members to sign up without two people being from the same home; do you think they have asst. Secretaries?

We don't have all the facts to know whether Rich can stay or go.

EvaM1 (Florida)
Posts: 190

Posted:

Donna,
Let’s please try again. ‘The question was if the Treasurer can remove Rich from the Board?’ That was Rich’s question. Not mine. I said the Treasurer cannot remove the Secretary. (see my post @ 4:02 am) So, we agree on that.

Rich said he was not on the deed. Why in the world he/she would say that if not a requirement? Or, are we supposed to assume that the Secretary who serves on the Board for two years does not even know that? Are we to assume that even the President does not know?

Also, I did not say that two households cannot serve on the Board either. On the contrary I said in Florida they can.(posted as reply to Mary@ 7:08 pm)
But what I said was: if the President and Secretary live together and the Secretary is not on the deed (assuming must be) the Treasurer has a point. If it is a three member Board the Treasurer is probably concerned about something.

The Secretary in our Association has a lot of power. In fact, the President + Secretary basically run our association. We too have two absentee board members and we also have a problem attracting people to serve. So, I am quite familiar with those problems.
There is a very good reason, why the President cannot be a Secretary. (At least our by-laws say that.) Rich may be a very nice person, but obviously there is a conflict and the President has to resolve it. Not Rich.

MaryA1 (Arizona)
Posts: 7,043

Posted:

This is just a classic example of a BOD who hasn't taken the intiative to know what the gov. docs say. I wonder how many other provisions are being violated. And we know the members don't know anything because no one questioned Rich when he ran 2 yrs ago! Oh well, if NO ONE knows what the gov docs say then I guess there isn't anything wrong. Nothing like walking around with your head in the sand. Oh, I'm sorry, I forgot about the treasurer. Appears she had a "brain fart" after 2 years and now says Rich cannot be a director because he's not a member.

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