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Subject: Common Space
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Author Messages
AM3
(Georgia)

Posts:10


09/02/2017 10:46 AM  
The president of our board (who is just another director) has given one homeowner the authority to fence off common area around her condominium which is an end unit. This homeowner is a board member and a friend of the president and all of the board members violate the by-laws but the President wants to enforce the bylaws with all other homeowners. This is unfair treatment and is a direct violation of the bylaws as it relates to all common space. We plan to write a letter to the president of the board and the HOA attorney demanding that this not be allowed and demand that the fence be removed. We plan to take further action to have this board removed since we have not been able to vote them off due to the failure of the board to provide us with eligible voter information and they have failed to hold an election each year. What do you suggest?
AM3
KerryL1
(California)

Posts:4162


09/02/2017 11:10 AM  
Sounds like you're on the right track, AM. I do urge you & others to band together to pool your funds to hire a good attorney to show you exactly how you can get rid of this rogue president and, apparently, rogue board. Whether it's a real or an actual annual election, you need to proceed corruptly per your docs & GA law.

Do you by chance have a property manager? What size is your HOA? Detached homes? How many on the Board?
AM3
(Georgia)

Posts:10


09/02/2017 11:47 AM  
100 unit condominiums in Georgia. We are beginning some actions with an HOA attorney. This president agreed to step down in front of homeowners and it was recorded after being on the board for 5 terms and then said no. The board has failed to hold an election for the last few years. We sent a petition demanding a special meeting to hold and election to remove the entire board which has been ignored by the board and the their HOA attorney.
JohnC46
(South Carolina)

Posts:6802


09/03/2017 6:56 AM  
AM3

There is a procedure for recalling a BOD Member or for that matter, the whole BOD. Petitions mean nothing. Follow the procedure.

1. Start by looking in your docs for how to call a Special Meeting. This is the meeting to be used for the recall. Find out how many votes are needed to call a Special Meeting.

2. Search your docs as to how to recall a BOD Member. If they were elected by the owners, then the owners can remove them. The removal will be along the lines of how they got elected as there was a Quorum, they received the majority of the votes, etc.

3. A special Meeting must have a defined Agenda such as recall Harry Smith and replace him with Bill White. It is not an open bytching session. It must follow the agenda.

A recall can be dome. That said it is often easier to work toward electing BOD Members who think like you do at the Annual Election rather then do a recall.

KerryL1
(California)

Posts:4162


09/03/2017 12:17 PM  
I agree with JohnC that while a recall can be done, "... it is often easier to work toward electing BOD Members who think like you do at the Annual Election rather then do a recall."

Your independent attorney should be able to tell you how to call an annual meeting and election. But, A, don't your bylaws say when the annual meeting and election should be held???
DaveD3
(Michigan)

Posts:726


09/03/2017 7:32 PM  
Sounds like the president has overstepped his authority. A good first course of action would be a letter from you (or your attorney) to the board, pointing out the violation, with a notice that legal action may be taken in order to ensure that the CC&Rs, rules, and regulations of the association are properly followed.

JanetB2
(Colorado)

Posts:3355


09/03/2017 7:44 PM  
Posted By JohnC46 on 09/03/2017 6:56 AM
AM3

There is a procedure for recalling a BOD Member or for that matter, the whole BOD. Petitions mean nothing. Follow the procedure.

1. Start by looking in your docs for how to call a Special Meeting. This is the meeting to be used for the recall. Find out how many votes are needed to call a Special Meeting.

2. Search your docs as to how to recall a BOD Member. If they were elected by the owners, then the owners can remove them. The removal will be along the lines of how they got elected as there was a Quorum, they received the majority of the votes, etc.

3. A special Meeting must have a defined Agenda such as recall Harry Smith and replace him with Bill White. It is not an open bytching session. It must follow the agenda.

A recall can be dome. That said it is often easier to work toward electing BOD Members who think like you do at the Annual Election rather then do a recall.


Agree ... Plus you need to be familiar with your State Statutes:

If you are incorporated as a Non-Profit here is a link:
http://law.justia.com/codes/georgia/2010/title-14/chapter-3

Your Condominium Statutes are here where you can check on rights with regards to the fencing of common area:
http://law.justia.com/codes/georgia/2010/title-44/chapter-3/article-3


The Non-Profit code states the following for removal of directors:

2010 Georgia Code
TITLE 14 - CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS
CHAPTER 3 - NONPROFIT CORPORATIONS
ARTICLE 8 - DIRECTORS AND OFFICERS
PART 1 - BOARD OF DIRECTORS
§ 14-3-808 - Removal of directors

O.C.G.A. 14-3-808 (2010)
14-3-808. Removal of directors


Unless the corporation's articles or bylaws provide otherwise:

(1) The members may remove, with or without cause, one or more directors elected by them;

(2) If a director is elected by a class, chapter, or other organizational unit or by region or other geographic grouping, the director may be removed only by the members of that class, chapter, unit, or grouping;

(3) Except as provided in paragraph (9) of this Code section, a director may be removed under paragraph (1) or (2) of this Code section only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors;

(4) If cumulative voting is authorized, a director may not be removed if the number of votes, or if the director was elected by a class, chapter, unit, or grouping of members, the director may not be removed if the number of votes of that class, chapter, unit, or grouping, sufficient to elect the director under cumulative voting is voted against the director's removal;

(5) A director elected by members may be removed by the members only at a meeting called for the purpose of removing the director and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the director;

(6) In computing whether a director is protected from removal under paragraphs (2) through (4) of this Code section, it should be assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of that director's election;

(7) An entire board of directors may be removed under paragraphs (1) through (5) of this Code section;

(8) A director elected by the board may be removed with or without cause by the vote of two-thirds of the directors then in office; provided, however, that a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board; and

(9) If, at the beginning of a director's term on the board, the articles or bylaws provide that the director may be removed for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors then in office vote for the removal.
AM3
(Georgia)

Posts:10


09/04/2017 1:44 PM  
Yes we have pooled some funds and we are working with a good HOA attorney. The President, Secretary-Treasurer and the remainder of the board are not managing according to the CC&R's and the HOA attorney is not advising them of the wrong doing.
KerryL1
(California)

Posts:4162


09/04/2017 1:46 PM  
I'll try again, AM: don't your bylaws state when elections for directors must be held?
AM3
(Georgia)

Posts:10


09/04/2017 1:52 PM  
There is a President and Secretary Treasurer who are running the board alone. Two months ago, the President appointed two new directors to the board without holding an election in April 2017. The four of them are violating the CC&R's constantly (it is rogue management). A special meeting was requested at the end of July to be held in August in order to vote in new directors (there is 4 on the board and there should be 7). The request for the special meeting was ignored by the board and the attorney representing the board of directors as of this date. We are working with an attorney.

We intend to follow up with the fence issue where one of the board members was given permission by the board president to fence off a large area of common space near that person's condo and the fence was installed three days ago. A letter is going to the board and the HOA attorney about this serious violation and a demand to take it down. We may have to filer an injunction and ask the court to have the fence removed.
JohnC46
(South Carolina)

Posts:6802


09/04/2017 1:57 PM  
I wince when I hear recall as it is very easy for those being recalled to lawyer up and legally defeat the recall especially when those doing the recall do not have an attorney.

It is much easier to defeat one or two of them at election time. If unable to defeat them at election time, I doubt enough would be interested in a recall to make it happen.

In the last replace the BOD I was involved in we were able to get two on the BOD the first go around thus assuring the President did not have the BOD votes to remain President. We had two votes in our pocket, he had two votes in his pocket, and we had 3 left that were in no ones pocket. He lost the Officers Election 4 to 3. It took one more election cycle to get him and a crony off the BOD.
AM3
(Georgia)

Posts:10


09/04/2017 1:58 PM  
Thanks for the recall information. We called a special meeting for the purpose of election directors in August. The request has been ignored by the board and HOA attorney as of now. The board has also refused to give us a list of eligible voters so we can prepare (some voters may not qualify if they are more than 30 days late paying their fees). This list has not be provided also. The last two directors (friends of the President) were simply placed on the board without any notice to homeowners or an election this past April. We were told at the annual meeting by the President to wait to fill the 3 open director positions until April 2018 for an election.!

We are working with an HOA attorney on these issues.
JanetB2
(Colorado)

Posts:3355


09/04/2017 3:31 PM  
Posted By AM3 on 09/04/2017 1:44 PM
Yes we have pooled some funds and we are working with a good HOA attorney. The President, Secretary-Treasurer and the remainder of the board are not managing according to the CC&R's and the HOA attorney is not advising them of the wrong doing.


That is awesome ... attorney can help with mtg info. Some states do not need Board to set up ... owners can do so themselves. Might be something to ask and may get ball rolling more quickly.
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