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Subject: Removal of HOA Board Member in NC
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KarenW19
(North Carolina)

Posts:12


04/08/2019 2:55 PM  
I reside in a planned community of about 1500 homes in North Carolina. I knew people who lived in the community and after talking to others in the neighborhood who had lived here for many years, thought this would be a great place to live. Unfortunately, the former president of the HOA Board moved, and a couple of Board members resigned. The current president was previously the vice president.

I would like to know the exact steps necessary to remove the president of an North Carolina HOA Board. Our bylaws state:

“Removal: Any Director may be removed from the Board of Directors, with or without cause, by a majority vote of the Members of the Association present and entitled to vote at any meeting of the Members at which a quorum of the Membership is present. In the event of death, resignation or removal, pursuant to these Bylaws, of a Director his successor shall be selected by the remaining Directors and shall serve for the unexpired term of his predecessor.”

“Quorum: The presence at the meeting of Members or proxies entitled to cast 10 percent of the votes of the Membership shall constitute a quorum for any action except as otherwise provided in the Declaration or these Bylaws. In the event business cannot be conducted at any meeting because a quorum is not present, that meeting may be adjourned to a later day the affirmative vote of a majority of those present in person or by proxy. Notwithstanding any provision to the contrary in the Declaration or these Bylaws, the quorum requirement at the next meeting shall be 50% of the quorum requirement applicable to the meeting adjourned for lack of a quorum. This provision shall continue to reduce the quorum requirement by 50% from that required at the previous meeting, as previously reduced, until such time as a quorum is present and business can be conducted. Thereafter, the quorum requirements for the next meeting shall return to its original amount.”

Below are my reasons for wanting to remove the president of the HOA Board:

The previous board signed agreements with developer #1 (developer of a planned community being built adjacent to our community) which conveyed easements for 1) a sewer needed for developer’s property and 2) a BMP for a proposed retention pond which would be built on our community’s common area for our use. This common area was a very narrow, heavily wooded parcel which included streams and wetlands, and is adjacent to multiple residents’ properties. The Board did not engage a civil engineer or other expert, nor did the attorney or property management advise one was needed.

The retention pond had initially been seen by the Board as a good idea because our community might not have had a pond to place water used for irrigation (due to litigation with developer #2 – the original developer of this community, who had not properly conveyed all land to the Association, and who is also planning to build a separate development adjacent to our community). The pond was to be fed by overflow from developer #1’s retention pond located next to our common area, and then the collected water to be fed to another retention pond to which our community had access. However, prior to the easement agreements with developer #1 being signed, the community was able to obtain permanent access to a retention pond on developer #2’s property. This was part of the litigation settlement. In exchange developer #2 was conveyed a small parcel from our community property. This annexation agreement required 80% approval from the community.

The Board did not seek nor obtain community approval for the easement agreements with developer #1. After creating a resolution (which I have not seen), the Board approved the easement agreements with developer #1. However, neither the resolution nor the easement agreements with developer #1 were ever mentioned to members in any monthly Board meetings, agendas or minutes. The resolution was never posted to the Association website (not sure if this was required; I am requesting the resolution from the property management company). Additionally, adjacent homeowners were never informed of the possibility of a retention pond being built within 15 feet of their properties. (Although the BMP easement did not include a 15 foot buffer, supposedly the agreement did.) All this was done under the direction of the previous president and the previous vice president (current president).

Six months later, without apparently either providing a plan for the retention pond or giving notice to the Board, developer #1 clear cut approximately one acre or so of the community’s common area, including the 15 foot buffer against resident’s properties. They also clear cut a swath of land on community property for the sewer easement. In the process, wetlands on the common area were destroyed. The developer also removed valuable timber. Police were called and the developer was warned to stay off our community property. A couple of weeks later the developer, once again without notice, accessed the community’s common area to remove the lumber they had placed on top of streams and wetlands. The Board subsequently placed construction fencing along the access points to enforce the cease and desist order.

Reviewing the developer’s plans, it was determined that the developer had enlarged the proposed retention pond on our community property in order to use a smaller portion of his land for his retention pond, thus gaining two or three more town homes.

The residents with backyards adjacent to the community property lost the privacy provided by the woods (as backyards are now opened to nearby commercial properties) and have had their property values damaged. The wooded common area which added value to their homes, would have provided even more value once two planned developments adjacent to our community are built over the next year.

To make matters worse, once the developer built the retention pond on his property -- a monstrosity topped by a 6-8 foot dirt berm and to be topped by a 6 foot chain link fence -- it was clear this type of retention pond cannot be allowed just a few feet from residents’ properties. This is exactly the type of retention pond that the developer plans to build on our community property (albeit smaller in circumference). Not only do realty sites caution against buying a home close to a pond, this retention pond would be a mud pit most of the time since it does not have its own water source. All of this will be noticeable from surrounding homes and will damage the property values of the affected residents, the neighborhood and eventually the entire community. Currently, the downed trees and tree trunks have been left as felled by the developer on community property - a very distressing sight which has ruined multiple holidays and vacations.

Almost half a year has gone by without any communication by the Board. Remember, the president was previously the vice president. He and the former president were the only Board members who worked with the attorney on these agreements, and the only members (I believe) who met with developer #1. We have spoken at the last 4 Board meetings to no avail. I have written two letters to the Board asking for an explanation with no response. I have tried to keep things on friendly terms because I thought that the Board (through the attorney) was negotiating with the developer to repair the common areas - and they simply needed a reminder to keep things moving along.

However, I have learned of several things that make me very concerned that the president is leaning towards letting the developer built the retention pond on the common area. The reasons for this may be: to have a backup retention pond (although the retention pond as planned by the developer would not work as it overran the 15 foot buffer – and, more importantly, we already have access to the retention pond on developer #2’s property), to cover up Board and / or attorney incompetence and/or impropriety, or to save money being spent on a lawsuit…or all of these. When I asked for assurance that the retention pond would not be built, I was told they could not discuss under advisement of the attorney. Once the annexation agreement with developer #2 was finalized, there does not seem to be a valid reason why the Board 1) did not inform developer #1 that a retention pond on our community property was no longer needed, and 2) did not take the opportunity to renegotiate the sewer easement for a larger payment (after receiving 80% community approval).

I’ve been warned by more than one resident that the president may have had an improper relationship with either or both developers #1 and #2, but I don’t see a way of obtaining proof. I do know that when the president brought over a representative of developer #1 the day after the common area was clear cut, the developer’s representative made it seem that they had every right to clear cut the property (except for the 15 foot buffer, which they would replant). The president did not rebut this statement.

The president seems to be very manipulative, and I’m petrified that he may manipulate enough Board members to see things his way, e.g., it’s more economical to let the developer build a retention pond, than to litigate. (At the moment the Board is short one member, and a special election via electronic vote is ongoing until April 19. One candidate is against the retention pond and one candidate is of the president’s choosing -- a former Board member, although not at the time of the signing of the easement agreements with developer #1. He has been used on a consulting basis to review contracts.)

Litigation against the Board is a last resort, with removal of the president a preferred solution to this disaster. May I ask someone to kindly walk me through the exact steps needed to remove the president and guidance on pitfalls to avoid. I want to ensure there are no errors on my part. I am hoping that once the president is removed, the other directors will be able to work together to bring litigation against developer #1. I also do not believe it will be difficult to meet the quorum, as I understand it to be about 77 members (a majority ⎿%] of 10% of 1500 homes).

Please forgive me for this long note and convoluted history. Thanks in advance!

GeorgeS21
(Florida)

Posts:1227


04/08/2019 4:56 PM  
Karen,

Sounds like you need to have a special meeting of the membership for the purpose of removing a director. It looks like you bylaws have a process for this.
KarenW19
(North Carolina)

Posts:12


04/08/2019 5:04 PM  
Yes, that is the good news. However, I am hoping to obtain guidance from someone with NC experience as to the exact steps I need to take, e.g. how do I go about calling for a special meeting? Is it possible to gather signatures by walking the community or do I need to mail 1500 letters? There does not seem to be any formal guidelines for how to handle the process. Thanks for your reply and reading a very long post!
MelissaP1
(Alabama)

Posts:8184


04/08/2019 5:24 PM  
This should be covered in your Articles of Incorporation I believe. If not, check your CC&R's. ALL processes and procedures of the HOA are contained in them. That includes making changes to them and getting rid of board members.

Former HOA President
KerryL1
(California)

Posts:6350


04/08/2019 5:33 PM  
Is there anything in NC state statutes? If you're a corporation, and most HOAs are, you might get good guidance from NC corporations codes. In CA, they affect HOAs a lot concerning such matters as governing procedures.

Kelly of NC is a very knowledgeable contributor, but doesn't post regularly.

You can skim your Articles & CC&Rs, but I'd be surprised if they offer guidance.
GeorgeS21
(Florida)

Posts:1227


04/08/2019 5:48 PM  
I would expect the process to be in your bylaws, rather than CCRs.
JohnC46
(South Carolina)

Posts:8347


04/08/2019 5:50 PM  
Karen

Typically it may only take a given % of owners (say 10% of 1500 or 150 members) to call a Special Meeting with the purpose of removing a BOD Member, but it will typically take 51% of ALL OWNERS voting yes to removing a BOD Member or 751 of all members regardless of how many at the Special Meeting.

You are wanting it to be 51% of those attending. Sorry, that is not how it works.

As to how you gather 10% or more agreeing to the Special Meeting, typically you can do it in any number of ways including signed petitions.

Removing a BOD Member is very tricky and often ends up in protracted legal battle.

I keep saying typically as it can vary depending on your HOA docs.

Usually the best bet is to gather support to put others on the BOD. Others that will vote so the President is no longer an Officer in a BOD Officer Election.

My belief is you probably do not stand a snowball's chance in he!! unless you are willing to gather others(including legal advice) and work hard, hard, hard, hard at it.
JohnC46
(South Carolina)

Posts:8347


04/08/2019 5:51 PM  
Posted By JohnC46 on 04/08/2019 5:50 PM
Karen

Typically it may only take a given % of owners (say 10% of 1500 or 150 members) to call a Special Meeting with the purpose of removing a BOD Member, but it will typically take 51% of ALL OWNERS voting yes to removing a BOD Member or 751 of all members regardless of how many at the Special Meeting.

You are wanting it to be 51% of those attending. Sorry, that is not how it works.

As to how you gather 10% or more agreeing to the Special Meeting, typically you can do it in any number of ways including signed petitions.

Removing a BOD Member is very tricky and often ends up in protracted legal battle.

I keep saying typically as it can vary depending on your HOA docs.

Usually the best bet is to gather support to put others on the BOD. Others that will vote so the President is no longer an Officer in a BOD Officer Election.

My belief is you probably do not stand a snowball's chance in he!! unless you are willing to gather others(including legal advice) and work hard, hard, hard, hard at it.




ADD ON

Is your HOA under owner or developer control?
GeorgeS21
(Florida)

Posts:1227


04/08/2019 6:00 PM  
Our Florida HOA Bylaws specifies 2/3 or all members voting to remove a director.

It is supposed to be hard to recall directors, not easy 🙂
KarenW19
(North Carolina)

Posts:12


04/08/2019 6:16 PM  
It is under owner control.
KarenW19
(North Carolina)

Posts:12


04/08/2019 6:24 PM  
Thanks for your reply - although it contained difficult news. I guess I did not correctly interpret the bylaws: I thought a director could be removed by a majority of a quorum at a special meeting - not a majority of members. I guess the statement regarding a quorum misled me. I agree that a majority of members would be very difficult - especially contacting those who have rented their homes.

Here is the NC statute:
"...Notwithstanding any provision of the declaration or bylaws to the contrary, the lot owners, by a majority vote of all persons present and entitled to vote at any meeting of the lot owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant."

Thanks again! I appreciate your remarks.
KarenW19
(North Carolina)

Posts:12


04/08/2019 6:27 PM  
Thanks for your reply. I included the paragraphs from our bylaws in my original note - but obviously did not interpret these correctly.

Thanks again!
KarenW19
(North Carolina)

Posts:12


04/08/2019 6:27 PM  
Thanks for your reply. I included the paragraphs from our bylaws in my original note - but obviously did not interpret these correctly.

Thanks again!
GeorgeS21
(Florida)

Posts:1227


04/08/2019 6:30 PM  
Karen,

Why would it be difficult to contact the non resident owners?

The local tax office has all the addresses ...admittedly, there are a lot of homes in your HOA, but given this number it should also be straightforward to put together committees to help organize a way a to do it.
BobB31
(Florida)

Posts:96


04/08/2019 7:09 PM  
Posted By GeorgeS21 on 04/08/2019 6:00 PM
Our Florida HOA Bylaws specifies 2/3 or all members voting to remove a director.

It is supposed to be hard to recall directors, not easy 🙂


So do ours, but they are superseded by the 720.303 statute:
(10) RECALL OF DIRECTORS.—
(a)1. Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, 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 interests.
GeorgeS21
(Florida)

Posts:1227


04/08/2019 8:08 PM  
Good point, Bob.

The HOA to which I referring is actually a FS 617 not for profit - a “voluntary” HOA with mandatory covenants - long story, but Florida statute certainly takes precedence over the FS 720 HOAs (most of them).
BobB31
(Florida)

Posts:96


04/08/2019 8:37 PM  
Posted By GeorgeS21 on 04/08/2019 8:08 PM
Good point, Bob.

The HOA to which I referring is actually a FS 617 not for profit - a “voluntary” HOA with mandatory covenants - long story, but Florida statute certainly takes precedence over the FS 720 HOAs (most of them).



So then why doesn't this apply?
617.0808 Removal of directors.—
(1) Subject to subsection (2), a director may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, which shall provide the following, and if they do not do so, shall be deemed to include the following:
(a) Any member of the board of directors may be removed from office with or without cause by:
1. Except as provided in paragraph (i), a majority of all votes of the directors, if the director was elected or appointed by the directors; or
2. A majority of all votes of the members, if the director was elected or appointed by the members.

That word "shall" is again troublesome, but I think it means that this takes precedence over your bylaws.
GeorgeS21
(Florida)

Posts:1227


04/08/2019 8:40 PM  
Because the bylaws say 2/3 ... am I reading it wrong?
BobB31
(Florida)

Posts:96


04/09/2019 6:32 AM  
Posted By GeorgeS21 on 04/08/2019 8:40 PM
Because the bylaws say 2/3 ... am I reading it wrong?



My understanding is that state law takes precedence over governing documents. In this case, the bylaws say something different from the statute, so the statute should be followed. Especially since that section of the statute says nothing about "Unless otherwise specifically stated in the governing documents" or other words to that effect.
GeorgeS21
(Florida)

Posts:1227


04/09/2019 6:54 AM  
I certainly agree that FS is senior to HOA doc’s, but I’m still reading it as per Bylaws, unless not included, then majority.

I’m gonna keep reading and trying to understand ... I’m not sure why the state would care to involve itself at thus level of detail in run if the mill not for profits, though.
SueW6
(Michigan)

Posts:497


04/09/2019 7:07 AM  
Gee Karen
You don’t mention the city/county role in all this. Around here, there would have been multiple hearings to go over engineering issues, drainage, buffer zones, etc. , etc for a project of this size. There would have been a required notice to residents within 3 hundred feet of any project this size.

I find it hard to believe there is no paper trail leading back to your board and minutes to record discussion.

You sound like you want to cut off the head if the snake, but in reality you need to put a stop- work order on this project.
SheilaJ1
(South Carolina)

Posts:74


04/09/2019 9:50 AM  
I'm not certain for your state but I also believe other replies are correct and it is majority or 51% membership vote, so 765 signatures on a removal petition.

Then 10% in attendance at the meeting unless calling a reduced quorum meeting. So 150 present or by proxy at a properly noticed meeting to act on the petition. Don't know where 77 members from unless it's a reduced quorum which is 75.

Before you do all that, I suggest getting a copy of the settlement. It may be at that time the developer was in control and never needed a 80% vote to annex the property. The settlement looks okay if the developer moved forward with annexing.

So the issues I see, didn't get the 80% annex vote, some common area was destroyed, a few homes have lost the buffer zone on their property. I don't see any avenue to undo this without litigation which seems to be in the developer's favor until more documents come your way.

I don't see any reason to remove the president, those decisions were board decisions. You have already shown when the previous president moved, the vice president followed in their foot steps.


KarenW19
(North Carolina)

Posts:12


04/09/2019 11:41 AM  
Thanks to everyone who has commented - I am grateful for any suggestions! I lived in a much larger planned community in South Florida for 7 years, and never had any complaints. I'm ashamed to say I also never attended Board meetings. So there may have been problems during those 7 years of which I was unaware -- just 90% of my community is unaware of this problem. Hardly anyone attends the monthly Board meetings, and I did not broadcast this issue because I was under the impression that they were working with the developer to rectify this situation, as litigation would take a long time. Right now I'm living next to all these downed trees and water -- not a pleasant thing.

I have not listed the city/county because I am concerned that someone could recognize the community if I do, and I don't want to give the Board notice of what I'm doing. I can say it's in a fast growing-formerly rural part of NC, and developers have a lot of power...

The community was never informed about either of the easements. There was no discussion with members during monthly Board meetings, there are no agendas or minutes reflecting discussion or approval of the easement agreements by the Board. The resolution was never posted to the Association's website. Furthermore, while the sewer easement to the City has been recorded with the County, the easement to developer #1 seems not to have been. I spent the day trying to locate the easement, but was unsuccessful. I'm not sure what this means.

By our governing documents and NC statute, both easements (BMP to the developer and sewer easement to the city - the latter easement for which the Association received a sum of money from the developer) required 80% community support. The only reason these easements to community property could have been conveyed without community support would have been if the Board determined that it was required for the Association. However, this argument does not hold because the Board was aware of the prior permanent easement to developer #2's retention pond.

I've attached text from our governing documents pertaining to community property - hopefully, it will upload properly



Attachment: 149412581371.pdf

KarenW19
(North Carolina)

Posts:12


04/09/2019 12:10 PM  
Here is the relevant paragraph from "Extent of Members Easement." Our governing documents have not ever been updated, and still retain the declarant language. I've removed it except in one instance...

The rights of the Association to dedicate or transfer all or any part of the Common Properties (which includes streets and roads) or private water/sewer lines to any public agency, authority or utility (public or private) for such purposes and subject to such conditions as may be agreed to by the Members. Except as provided below, no such dedication or transfer shall be effective unless at least 80% of the votes in the Association are cast in favor of such dedication or transfer and the Owners of such votes signify their agreement in writing; provided that, notwithstanding the foregoing, the Association and the Declarant shall each have the right, power, authority to grant easements and rights-of-way for the installation and maintenance of drainage facilities and of utilities whether private , public or quasi-public, including cable television, water, gas and sewer upon, over under and across any Common Area, without the assent of the Members when, in the sole opinion of the Board, as applicable, such easements are required or reasonably necessary for the development and/or the convenient use and enjoyment of the Property and, in the sold opinion of the Board, as application, will not unreasonably interfere with the overall use and enjoyment of the Common Areas; and provided further this Subjection shall not preclude the Board from conveying at such purchase price as the Board deems appropriate strips or potions of the Common Areas to any Owner in order to resolve any gap, gore, overlap or other boundary line conflict or to make the Lot more usable as a homesite provided such conveyance does not in the good faith judgement of the Board adversely affect the overall use and enjoyment of the Common areas

Below are relevant NC statutes:

§ 47F-3-112. Conveyance or encumbrance of common elements.
(a) Portions of the common elements may be conveyed or subjected to a security interest by the association if persons entitled to cast at least eighty percent (80%) of the votes in the association, or any larger percentage the declaration specifies, agree in writing to that action; provided that all the owners of lots to which any limited common element is allocated shall agree in order to convey that limited common element or subject it to a security interest. The declaration may specify a smaller percentage only if all the lots are restricted exclusively to nonresidential uses. Distribution of proceeds of the sale of a limited common element shall be as provided by agreement between the lot owners to which it is allocated and the association. Proceeds of the sale or financing of a common element (other than a limited common element) shall be an asset of the association.
(b) The association, on behalf of the lot owners, may contract to convey common elements or subject them to a security interest, but the contract is not enforceable against the association until approved pursuant to subsection (a) of this section. Thereafter, the association has all powers necessary and appropriate to effect the conveyance or encumbrance, free and clear of any interest of any lot owner or the association in or to the common element conveyed or encumbered, including the power to execute deeds or other instruments.
(c) Any purported conveyance, encumbrance, or other voluntary transfer of common elements, unless made pursuant to this section is void.
(d) No conveyance or encumbrance of common elements pursuant to this section may deprive any lot of its rights of access and support. (1998-199, s. 1.)


47F-3-113. Insurance.
(a) Commencing not later than the time of the first conveyance of a lot to a person other than a declarant, the association shall maintain, to the extent reasonably available:
(1) Property insurance on the common elements insuring against all risks of direct physical loss commonly insured against including fire and extended coverage perils. The total amount of insurance after application of any deductibles shall be not less than eighty percent (80%) of the replacement cost of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations, and other items normally excluded from property policies; and
(2) Liability insurance in reasonable amounts, covering all occurrences commonly insured against for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the common elements.
(b) If the insurance described in subsection (a) of this section is not reasonably available, the association promptly shall cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all lot owners. The declaration may require the association to carry any other insurance, and the association in any event may carry any other insurance it deems appropriate to protect the association or the lot owners.
(c) Insurance policies carried pursuant to subsection (a) of this section shall provide that:
(1) Each lot owner is an insured person under the policy to the extent of the lot owner's insurable interest;
(2) The insurer waives its right to subrogation under the policy against any lot owner or member of the lot owner's household;
(3) No act or omission by any lot owner, unless acting within the scope of the owner's authority on behalf of the association, will preclude recovery under the policy; and
(4) If, at the time of a loss under the policy, there is other insurance in the name of a lot owner covering the same risk covered by the policy, the association's policy provides primary insurance.
(d) Any loss covered by the property policy under subdivision (a)(1) of this section shall be adjusted with the association, but the insurance proceeds for that loss are payable to any insurance trustee designated for that purpose, or otherwise to the association, and not to any mortgagee or beneficiary under a deed of trust. The insurance trustee or the association shall hold any insurance proceeds in trust for lot owners and lienholders as their interests may appear. Subject to the provisions of subsection (h) of this section, the proceeds shall be disbursed first for the repair or restoration of the damaged property, and lot owners and lienholders are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the property has been completely repaired or restored, or the planned community is terminated.
(e) An insurance policy issued to the association does not prevent a lot owner from obtaining insurance for the lot owner's own benefit.
(f) An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the association and, upon written request, to any lot owner, mortgagee, or beneficiary under a deed of trust. The insurer issuing the policy may not cancel or refuse to renew it until 30 days after notice of the proposed cancellation or nonrenewal has been mailed to the association, each lot owner, and each mortgagee or beneficiary under a deed of trust to whom certificates or memoranda of insurance have been issued at their respective last known addresses.
(g) Any portion of the planned community for which insurance is required under subdivision (a)(1) of this section which is damaged or destroyed shall be repaired or replaced promptly by the association unless (i) the planned community is terminated, (ii) repair or replacement would be illegal under any State or local health or safety statute or ordinance, or (iii) the lot owners decide not to rebuild by an eighty percent (80%) vote, including one hundred percent (100%) approval of owners assigned to the limited common elements not to be rebuilt. The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If any portion of the planned community is not repaired or replaced, (i) the insurance proceeds attributable to the damaged common elements shall be used to restore the damaged area to a condition compatible with the remainder of the planned community, (ii) the insurance proceeds attributable to limited common elements which are not rebuilt shall be distributed to the owners of the lots to which those limited common elements were allocated, or to lienholders, as their interests may appear, and (iii) the remainder of the proceeds shall be distributed to all the lot owners or lienholders, as their interests may appear, in proportion to the common expense liabilities of all the lots. Notwithstanding the provisions of this subsection, G.S. 47F-2-118 (termination of the planned community) governs the distribution of insurance proceeds if the planned community is terminated.
(h) The provisions of this section may be varied or waived in the case of a planned community all of whose lots are restricted to nonresidential use. (1998-199, s. 1.)
KarenW19
(North Carolina)

Posts:12


04/09/2019 1:09 PM  
I'm in NC. Now that I correctly understand the bylaws, I think it would difficult/impossible to gather a majority since it's a large community - and only a handful of residents are aware of what happened with community property. The developer has not been in control of this community for several years (although there is declarant language in the governing documents because they have never been updated). My concern is that for whatever reason, the Board will let Developer #1 build the retention pond on community property adjacent to my home - although it will not work properly since they overran the 15 foot buffer, and more importantly, is no longer needed (if it ever was to begin with).

It's a convoluted story, but there are two developers involved. Developer #1 was given an easement by the Board (without proper community support) to community property in 2018. Developer #1 then clear cut the woods on community property adjacent to my home. Developer #2 is the original developer of this community, who is building a new development adjacent to our community, and forced by litigation (and the conveyance of a small parcel of our community property -- not located near my home) gave permanent access to our community to a retention pond on his property. The permanent access to developer #2's pond, meant that our community never needed a back up retention pond proposed by developer #1. My apologies if this is still too convoluted. It's a complicated mess.

The president is steering the Board, and an upcoming special election will decide what course the Board will take. The next election is too far away to help stop the retention pond, or to ensure the Board takes action against Developer #1.

Litigation is a last resort - although I've been advised it's feasible, I'm not interested in pursuing that path until there are no other choices.

Thanks again for your comment!


GenoS
(Florida)

Posts:2960


04/09/2019 1:59 PM  
Posted By GeorgeS21 on 04/08/2019 6:00 PM
Our Florida HOA Bylaws specifies 2/3 or all members voting to remove a director.

It is supposed to be hard to recall directors, not easy 🙂

You might want to clarify that your association is a non-mandatory one. In a mandatory FL HOA under FS 720, there's nothing you could put in your bylaws that would override the statutory language that ONLY a majority of homeowners can recall a director.
GeorgeS21
(Florida)

Posts:1227


04/09/2019 2:23 PM  
Previous in the thread ...

"Good point, Bob.

The HOA to which I referring is actually a FS 617 not for profit - a “voluntary” HOA with mandatory covenants - long story, but Florida statute certainly takes precedence over the FS 720 HOAs (most of them)."
SheilaJ1
(South Carolina)

Posts:74


04/09/2019 3:13 PM  
But it seems the decision is already made to build the pond. It does not matter if you remove the president because it's probably the attorney that is telling them to go by the conditions of the settlement so even if you change the composition of the board, it's very slim that they will some how turn around and start suing the developer.

So you want to elect someone so they can start suing the developer or at least put a stop to the construction of the pond, they won't do that if someone is telling them not to.

If the the special election is for one person, how will that change anything. Perhaps talking to the other board members might give you their reasoning on why they will continue the project, that shouldn't be privileged information.

Lack of proper records and following procedures is normal in most HOA's, it's bad but the lack of documentation and verbal decisions keeps a lot of homeowners from exercising their rights.

KarenW19
(North Carolina)

Posts:12


04/09/2019 4:05 PM  
The proposed retention pond to be constructed on our community property would have been for our community's benefit; therefore, it does not have to be built - unless the Board wants it to be. It was not paid for. The only money that changed hands was for the easement for the sewer settlement. The only reason to build a retention pond on our community property now would be to cover up incompetence or worse. The president (formerly vice president) and former president (moved away) were the only board members who worked with the attorney on the two easements, and I believe were the main contacts for developer #1 regarding the easements. These two board members and the attorney were also the people involved with the settlement with developer #2. Therefore, all these parties understood another retention pond was not needed.

Removing the president who is very manipulative would very likely remove the impetus to build the retention pond.

The settlement with developer #2 was totally unconnected with this sewer easement and the proposed retention pond -- except for the fact that the settlement gave our community access to a retention pond on developer #2's property. This was done prior to the agreements with developer #1. Which means that the proposed retention pond was not needed.

I know - it's convoluted.

Thanks again for spending time trying to help me through this - I really appreciate it!

GeorgeS21
(Florida)

Posts:1227


04/09/2019 4:11 PM  
Karen,

So, there is a chance the board members felt the retention pond WAS needed, and there is just a difference of opinion?
KarenW19
(North Carolina)

Posts:12


04/09/2019 7:47 PM  
I believe originally it could have been necessary as the Board didn't know if/when the community would have access to the large retention pond on developer #2's property. (However, the proposed retention pond would never have worked as designed; unfortunately, no civil engineer was hired to assess the developer's proposed retention pond prior to the agreements being signed. I hold the attorney responsible for this, as well as the property management company.)

More importantly, by the time the agreements were signed with developer #1 (BMP easement and sewer easement), the Board had already negotiated permanent access to the retention pond on developer #2's property.

Therefore, there was no urgent reason to convey community property (which meant, according to NC Statute 47F, community approval was required). I believe the Board was trying to save money by having developer #1 construct a retention pond at no cost, but overreached and created a disaster.

I just want what the original owners of my home had: a house adjacent to wooded community property. Unfortunately, unless a way is found to stop it, I might end up with a house adjacent to a retention pond with a 6-8 foot dirt berm and a 6-8 foot chain link fence.



SueW6
(Michigan)

Posts:497


04/10/2019 6:13 AM  
Around here, requirements to place vegetative or decorative berms are required when abutting residential properties. That would have been ordered at the stage when these plans are permitted by the city or county. Take your concerns there.
KarenW19
(North Carolina)

Posts:12


04/10/2019 7:34 AM  
Hi, thanks for the advice! I will try, although my intent is to ensure that the retention pond (no longer needed) is not constructed.

Thanks again!
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Forums > Homeowner Association > HOA Discussions > Removal of HOA Board Member in NC



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