Get 2 months of free community web site hosting from Community123.com!
Saturday, August 24, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Board Vacancy
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
MaureenM1
(PA)

Posts:340


01/15/2018 8:16 AM  
A newly elected Board Member (3 year term) had resigned after one month. In the past we have had vacancies and the board member appointed by the board filled the vacancy for the remainder of the term. Our Board attorney is interpreting our bylaw below differently. He is stating the appointed board member serves until the next Annual Meeting? All of the Board Members are interpreting the bylaw that the vacancy will be filled for the remainder of the 3 year term. Please advise.

3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant, vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum. Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor. In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.
MarkM31
(Washington)

Posts:469


01/15/2018 8:29 AM  


3.5........ Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor. In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.




I can see what the confusion is. I think you're right, and the fact that the Bylaws address an instance of staggering multiple resignations also reinforces the interpretation that you are correct.


AugustinD


Posts:1886


01/15/2018 8:38 AM  
Maureen, I too agree with the Board's interpretation. Some HOA attorneys are incompetent. Recently my HOA's attorney pronounced that a director could be removed by a vote of the Board, citing the state statute that covers removal of officers. The attorney did not know there was a difference between an officer and a director. The Board set him straight. He billed us several hours.
RichardP13
(California)

Posts:3791


01/15/2018 8:42 AM  
Look at how a U.S. Senate seat is filled upon a vacancy. Let's take the most recent in Alabama. The Governor appoints a replacement for Jeff Session UNTIL a special election is held to fill the remaining term. Could be as long as 5 years or as little as one year.

Your Bylaws are conflicting. In the same breath they say the appointed person serves the remaining term while also saying a successor shall be elected at the next meeting.

The problems I see are HOA's keeping track of terms and who is up for what and when.There is no consistency in the language lawyers write for HOA's. In my opinion it should be a Board fills the position until the next annual meeting to fill out the term. Otherwise, because of the struggle of many HOA's reaching quorum, only way to get ion a Board is through appointment, which pleases the powers to be to no end.

It is the members who are suppose to elect Directors, not Directors themselves.

Been there, Done that
MaureenM1
(PA)

Posts:340


01/15/2018 8:42 AM  
Thank you. I'm surprised at our Attorney since he specializes in HOA law!
KerryL1
(California)

Posts:6541


01/15/2018 9:01 AM  
The language IS confusing, but I agree the new director serves till the end of the resigning director's term.

Maureen didn't ask this, but IMO, 35 months is an awfully long time for a board-appointed director to serve. It could create a majority of buddies of directors vs. someone Owners would select if they had the choice.

What do your bylaws say about replacing this director if the Board discovers it made a mistake. Can it declare the director position vacant, or must the Owners hold some sort of special election?

Does your board hold open meetings, maureen? I understand they don't need to in PA.
RichardP13
(California)

Posts:3791


01/15/2018 9:20 AM  
Posted By MaureenM1 on 01/15/2018 8:42 AM
Thank you. I'm surprised at our Attorney since he specializes in HOA law!



I stand corrected. The Board appoints a replacement and that person serves until a successor is elected AT the expiration of the term they were appointed to.

Been there, Done that
DouglasK1
(Florida)

Posts:1429


01/15/2018 3:16 PM  
I'll add that some states have HOA laws that could have some bearing on the matter, I have no idea about PA.

Escaped former treasurer and director of a self managed association.
BenA2
(Texas)

Posts:531


01/16/2018 7:06 AM  
I think the bylaw contradicts itself. It says the appointed member would serve the remainder of the term but also says the member would serve until the next annual meeting. Unless the term happens to end at the next annual meeting, its contradictory.

Perhaps the attorney based his opinion on the fact that it is contradictory and recommends acting in a manner that most benefits the membership's right to elect their board members.

It may also be that the attorney is relying on a precedent or state law that prevails when the governing documents are unclear.
RichardP13
(California)

Posts:3791


01/16/2018 7:18 AM  
Posted By BenA2 on 01/16/2018 7:06 AM
I think the bylaw contradicts itself. It says the appointed member would serve the remainder of the term but also says the member would serve until the next annual meeting. Unless the term happens to end at the next annual meeting, its contradictory.

Perhaps the attorney based his opinion on the fact that it is contradictory and recommends acting in a manner that most benefits the membership's right to elect their board members.

It may also be that the attorney is relying on a precedent or state law that prevails when the governing documents are unclear.



No. The election is not at the next annual meeting, but at the next election at which the term would expire.

Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor.

Been there, Done that
JohnC46
(South Carolina)

Posts:8561


01/16/2018 7:30 AM  
Posted By RichardP13 on 01/16/2018 7:18 AM
Posted By BenA2 on 01/16/2018 7:06 AM
I think the bylaw contradicts itself. It says the appointed member would serve the remainder of the term but also says the member would serve until the next annual meeting. Unless the term happens to end at the next annual meeting, its contradictory.

Perhaps the attorney based his opinion on the fact that it is contradictory and recommends acting in a manner that most benefits the membership's right to elect their board members.

It may also be that the attorney is relying on a precedent or state law that prevails when the governing documents are unclear.



No. The election is not at the next annual meeting, but at the next election at which the term would expire.

Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor.




This is also my reading of it.

The tricky wording is at the next annual meeting upon expiration of the term. This does not mean the next annual meeting regardless. The term may not expire for say two years so the election would not be at the next annual meeting.
BenA2
(Texas)

Posts:531


01/16/2018 7:37 AM  
Posted By RichardP13 on 01/16/2018 7:18 AM
Posted By BenA2 on 01/16/2018 7:06 AM
I think the bylaw contradicts itself. It says the appointed member would serve the remainder of the term but also says the member would serve until the next annual meeting. Unless the term happens to end at the next annual meeting, its contradictory.

Perhaps the attorney based his opinion on the fact that it is contradictory and recommends acting in a manner that most benefits the membership's right to elect their board members.

It may also be that the attorney is relying on a precedent or state law that prevails when the governing documents are unclear.



No. The election is not at the next annual meeting, but at the next election at which the term would expire.

Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor.



Maybe you have information about the HOA that I don't have. Most HOAs elect officers at the annual meeting and the statement "shall be elected at the next annual meeting" implies this HOA does the same.

The fact that the attorney and board disagree and we are having this debate is evidence that the bylaw is unclear, at best.
RichardP13
(California)

Posts:3791


01/16/2018 7:49 AM  
Normal people write something that can be understood with the first reading. Attorneys consistently write something that take 2-3 read throughs to MAYBE understand what they are trying to convey. That become a problem.

Been there, Done that
ArtL1
(Florida)

Posts:140


01/16/2018 5:01 PM  
You need a more competent attorney. It's pretty darn clear.

"Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor."

"remainder of the term of the member being replaced" The latter half of that sentence is mostly (totally?) redundant and just makes clear that the board-appointed replacement isn't permanent.

Besides...the attorney just gives advice (not orders). The board should do what it believes is right...and should have been able to get through this without any "help".
DaveD3
(Michigan)

Posts:796


01/16/2018 5:20 PM  
Posted By MaureenM1 on 01/15/2018 8:16 AM
A newly elected Board Member (3 year term) had resigned after one month. In the past we have had vacancies and the board member appointed by the board filled the vacancy for the remainder of the term. Our Board attorney is interpreting our bylaw below differently. He is stating the appointed board member serves until the next Annual Meeting? All of the Board Members are interpreting the bylaw that the vacancy will be filled for the remainder of the 3 year term. Please advise.

3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant, vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum. Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor. In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.





Your attorney is wrong but not for the reason you think.

The board has an interpretation. The question to the attorney should be "is our interpretation legally supported by the text?"

Can he twist the words in favour of your interpretation or not?

We're not attorneys here, so the best we can do is to affirm your interpretation or tell you that you're off your rocker. From my armchair, I'd say your interpretation is appropriate.
BenA2
(Texas)

Posts:531


01/16/2018 9:13 PM  
Posted By DaveD3 on 01/16/2018 5:20 PM
Posted By MaureenM1 on 01/15/2018 8:16 AM
A newly elected Board Member (3 year term) had resigned after one month. In the past we have had vacancies and the board member appointed by the board filled the vacancy for the remainder of the term. Our Board attorney is interpreting our bylaw below differently. He is stating the appointed board member serves until the next Annual Meeting? All of the Board Members are interpreting the bylaw that the vacancy will be filled for the remainder of the 3 year term. Please advise.

3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant, vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum. Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor. In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.





Your attorney is wrong but not for the reason you think.

The board has an interpretation. The question to the attorney should be "is our interpretation legally supported by the text?"

Can he twist the words in favour of your interpretation or not?

We're not attorneys here, so the best we can do is to affirm your interpretation or tell you that you're off your rocker. From my armchair, I'd say your interpretation is appropriate.



Do you really think an attorney's should try to twist words in favor of the board's interpretation? Boards lose in court all the time because they try to read or twist something into the CC&Rs that is not there. An attorney should be advising against any twisting of words, shouldn't they?
TimB4
(Virginia)

Posts:16416


01/16/2018 9:32 PM  
Posted By BenA2 on 01/16/2018 9:13 PM

Do you really think an attorney's should try to twist words in favor of the board's interpretation? . . . An attorney should be advising against any twisting of words, shouldn't they?




No and yes.

Unfortunately, that doesn't always happen.
A lot depends on how the question is asked and what questions the attorney asks the client.




Having read that section of the Bylaws and disagree with the attorney's interpretation (which I'll show later). Keep in mind that legal cases are based on differing opinions.

Now for my interpretation:


3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant,

Not applicable, as the Declarant is not in the picture.


vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners

This section applies to any vacancy that is not due to a recall and is not an appointee by the Declarant.


shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum.

Standard language. The remaining board members (regardless if the remaining members can make a quorum) appoints someone to fill the vacancy.


Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced

Said appointee SHALL serve out the remainder of the term of the vacancy.

and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor.

The membership votes for a replacement for the appointee at the annual meeting when that seat would have normally been up for election (i.e. at the end of the term).


In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.

Addresses if there are multiple vacancies with staggered terms and who gets what seat.


DaveD3
(Michigan)

Posts:796


01/18/2018 5:41 PM  
Posted By BenA2 on 01/16/2018 9:13 PM
Posted By DaveD3 on 01/16/2018 5:20 PM
Posted By MaureenM1 on 01/15/2018 8:16 AM
A newly elected Board Member (3 year term) had resigned after one month. In the past we have had vacancies and the board member appointed by the board filled the vacancy for the remainder of the term. Our Board attorney is interpreting our bylaw below differently. He is stating the appointed board member serves until the next Annual Meeting? All of the Board Members are interpreting the bylaw that the vacancy will be filled for the remainder of the 3 year term. Please advise.

3.5 Vacancies –Except as set forth in Section 3.4 above with respect to members of the Executive Board appointed by Declarant, vacancies in the Executive Board caused by any reason other than the removal of a member by a vote of the Unit Owners shall be filled by a vote of a majority of the remaining members at a special meeting of the Executive Board held for such purpose promptly after the occurrence of any such vacancy, even though the members present a such meeting may constitute less than a quorum. Each person so elected shall be a member of the Executive Board for the remainder of the term of the member being replaced and until a successor shall be elected at the next annual meeting of the Association at which such seat is to be filled upon expiration of the term of his predecessor. In the case of multiple vacancies, the member of the Executive Board receiving the greatest number of votes shall be elected for the longest term.





Your attorney is wrong but not for the reason you think.

The board has an interpretation. The question to the attorney should be "is our interpretation legally supported by the text?"

Can he twist the words in favour of your interpretation or not?

We're not attorneys here, so the best we can do is to affirm your interpretation or tell you that you're off your rocker. From my armchair, I'd say your interpretation is appropriate.



Do you really think an attorney's should try to twist words in favor of the board's interpretation? Boards lose in court all the time because they try to read or twist something into the CC&Rs that is not there. An attorney should be advising against any twisting of words, shouldn't they?




Yes. That's their job. Perhaps "twist words" is a bit of an overstatement though.

Question to attorney: "Is my interpretation of this document legally defensible?"
There is no black and white when it comes to the interpretation of what someone else put into word. What they actually meant is up for debate. How you interpret what they wrote is the point that is argued.
MaureenM1
(PA)

Posts:340


03/17/2019 10:07 AM  
Thank you all for all of your input. We now have another vacancy. One of our new board members who was elected (I say elected but no one else stepped up), is resigning due to moving. He served 6 months of a three year term.

The last year when we had a vacancy I asked your help on interpreting our bylaws. The board voted to go with our attorney's interpretation (I was outvoted) and our appointed board member was on the ballot for "re election".

Anyway, I think since the board voted to fill a vacancy for the remaining term and to the next election we set "past practice" and must again go with that interpretation.

It does make it difficult during elections because we had 2 (3 year terms) and had to make the 1 a (2 year term) with having three vacancies. I think it should have been the appointed board member was serving the remainder (which was 2 years) and we had an election for 2 3 year terms. The other two board members had one year left on their terms.

Regardless, I think we set the past practice so the person the Board appoints will be up for relection for a 2 year term (which makes no sense) because there are 2 board members who terms are up also in September and those are 3 year terms.


It should be that the appointed board member serves 2 years, 2 Elected board members serve 3 years and the one board member who was elected to the 2 term position last year (no one else stepped up) is a one year term.

The bottom line is that the Board set a past practice.

Thoughts?
GenoS
(Florida)

Posts:3132


03/17/2019 10:28 AM  
Posted By RichardP13 on 01/16/2018 7:18 AM
No. The election is not at the next annual meeting, but at the next election at which the term would expire.

This. The wording is confusing but it is consistent when you parse it out.

"at which the term would expire"
Please login to post a reply (click Member Login on the menu).



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement