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Subject: Would you rather...
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CjC


Posts:180


04/09/2019 7:56 AM  
Lets say an HOA has a covenant that no elected BOD member may serve more than 2 consecutive terms.

Would you rather:
1. Violate this and reelect a person to 3 terms if no one else volunteers
2. have a board that is not full (ie- 6 members instead of 7)


BobB31
(Florida)

Posts:96


04/09/2019 8:07 AM  
What do your bylaws say about director terms. In mine, it says, paraphrasing, 1 year unless no replacement is elected. The effect is that, if no volunteers run for the board, terms are for life, or until resignation.
Your state might have statutes that affect this as well.
As long as there are an odd number of directors, reducing the size of the board would be acceptable. Our bylaws say 3 to 7. Florida says 3 or more are acceptable.
GeorgeS21
(Florida)

Posts:1227


04/09/2019 9:02 AM  
CjC,

Your state is not showing - need to fix that so we will know what state you are in.

Covenants don't address director terms - bylaws do.

And, you answered your own question - if you use the term violate, you have violated. Perhaps held accountable in court? Entire Board could be involved since the Board would have to schedule the meeting to elect, right?

Who care if you have six directors and not seven? Only real effect is that there can be tied votes. I'm assuming the Board has decided not to appoint a replacement for a director who departed?
SheilaJ1
(South Carolina)

Posts:74


04/09/2019 9:58 AM  
Agree with George, who cares if the board has 6 members. You shouldn't violate the Bylaws because one person cannot wait a year for the next election.

Look for a contingency for this in your Bylaws in case you get down to 4 or less directors, then the board size must be reduced to meet quorum.
NpS
(Pennsylvania)

Posts:3367


04/09/2019 10:33 AM  
It seem to me that the purpose of a 2-term limit rule is to keep someone from hogging a seat on the Board when someone else wants it.

Here, no one else wants it.

Do your documents allow the Board to modify the bylaws so that the 2-year limit applies only when there's someone waiting in the wings?

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
ND
(PA)

Posts:300


04/09/2019 10:59 AM  
I would rather option 2 . . . have a BOD that is 6 members and not 7.

Regarding option 1 . . . how can a BOD knowingly violate the very documents they are elected to uphold? Tough to hold the rest of the owners accountable to the docs if following them is optional for the BOD.

There's nothing wrong with a 6-member BOD as long as business can still be carried on. Further, if the other BOD member who has served 2 consecutive terms still wants to be a part of things and the existing BOD still wants that individual a part of things, then they could hold an officer position. Typically (except for President), Officers do not need to also be BOD members. This way that individual will still be kept in the loop with much of what is going on.



NpS
(Pennsylvania)

Posts:3367


04/09/2019 11:18 AM  
Posted By ND on 04/09/2019 10:59 AM

Regarding option 1 . . . how can a BOD knowingly violate the very documents they are elected to uphold? Tough to hold the rest of the owners accountable to the docs if following them is optional for the BOD.



Would your answer be any different if those same documents gave the BOD authority to make changes to the Bylaws?
Are you saying that the bylaws are written in stone and can never be modified under any circumstances?
The OP hasn't said who has authority to change the bylaws. Maybe homeowners only. Maybe the Board alone. Depends on what else the docs say.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
GeorgeS21
(Florida)

Posts:1227


04/09/2019 11:39 AM  
NpS,

Not sure the OP was asking about changing Bylaws.

Clearly can go down that path - just a matter of following the requirements to do so.
ND
(PA)

Posts:300


04/09/2019 11:46 AM  
Posted By NpS on 04/09/2019 11:18 AM
Posted By ND on 04/09/2019 10:59 AM

Regarding option 1 . . . how can a BOD knowingly violate the very documents they are elected to uphold? Tough to hold the rest of the owners accountable to the docs if following them is optional for the BOD.



Would your answer be any different if those same documents gave the BOD authority to make changes to the Bylaws?
Are you saying that the bylaws are written in stone and can never be modified under any circumstances?
The OP hasn't said who has authority to change the bylaws. Maybe homeowners only. Maybe the Board alone. Depends on what else the docs say.



We all know docs can be changed IAW the rules for doing so contained in each doc (CCRs, bylaws, etc.).

OP stated, "Lets say an HOA has a covenant that no elected BOD member may serve more than 2 consecutive terms."

"covenant" = CCRs which typically can be changed only w/ sufficient member agreement and not by the BOD alone.

However, if the "2 consecutive term" statement is w/in the bylaws and the bylaws can be changed by only the BOD, then sure the BOD can make and implement the change. No issue there. The question was brief w/o additional context, so I just answered w/ a brief response instead of creating a bunch of hypothetical scenarios and what-ifs.

NpS
(Pennsylvania)

Posts:3367


04/09/2019 12:32 PM  
Posted By ND on 04/09/2019 11:46 AM
Posted By NpS on 04/09/2019 11:18 AM
Posted By ND on 04/09/2019 10:59 AM

Regarding option 1 . . . how can a BOD knowingly violate the very documents they are elected to uphold? Tough to hold the rest of the owners accountable to the docs if following them is optional for the BOD.



Would your answer be any different if those same documents gave the BOD authority to make changes to the Bylaws?
Are you saying that the bylaws are written in stone and can never be modified under any circumstances?
The OP hasn't said who has authority to change the bylaws. Maybe homeowners only. Maybe the Board alone. Depends on what else the docs say.



We all know docs can be changed IAW the rules for doing so contained in each doc (CCRs, bylaws, etc.).

OP stated, "Lets say an HOA has a covenant that no elected BOD member may serve more than 2 consecutive terms."

"covenant" = CCRs which typically can be changed only w/ sufficient member agreement and not by the BOD alone.

However, if the "2 consecutive term" statement is w/in the bylaws and the bylaws can be changed by only the BOD, then sure the BOD can make and implement the change. No issue there. The question was brief w/o additional context, so I just answered w/ a brief response instead of creating a bunch of hypothetical scenarios and what-ifs.




We are in agreement.

Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
TimB4
(Virginia)

Posts:16360


04/09/2019 3:20 PM  
I would rather follow the covenant and work to amend it to remove that statement.

As long as you have a quorum, business can be done.

There is also nothing that prevents you from appointing the individual to an Officer position that doesn't have qualifiers. They can provide input at board meetings. They simply can't vote at board meetings and can't be counted toward a quorum.
ND
(PA)

Posts:300


04/10/2019 4:31 AM  
Posted By TimB4 on 04/09/2019 3:20 PM
I would rather follow the covenant and work to amend it to remove that statement.

As long as you have a quorum, business can be done.

There is also nothing that prevents you from appointing the individual to an Officer position that doesn't have qualifiers. They can provide input at board meetings. They simply can't vote at board meetings and can't be counted toward a quorum.



Agreed with a caveat. Simplest and best in my opinion to leave things as they are. Existence of the statement will help prevent someone with ulterior motives from more easily making themselves a permanent BOD member. Also, it shouldn't prevent those who wish to stay involved past their 2 consecutive terms (as an Officer for 1 year) as long as the BOD wanted them to continue to be involved. Just because someone wants to stay involved doesn't necessarily mean others want them involved or their involvement is value-added. Having no volunteer could be better than having them volunteer.

Finally RE quorum . . . quorum is defined as the minimum number of voting members who must be present at a properly called meeting in order to conduct business in the name of the group . . . which for an HOA BOD may be defined as a majority of the directors in office. Say as an example your docs allow you to have 3 to 7 directors. If you have 7 BOD members, then quorum is 4. 6 BOD, quorum = 4. 5 BOD, quorum = 3. 4 BOD, quorum = 3. 3 BOD, quorum = 2. Quorum changes as the number of your directors in office changes.
RoyalP
(South Carolina)

Posts:770


04/10/2019 6:54 AM  
..... Having no volunteer could be better than having them volunteer. .....



Truer words were never spoken.


DouglasK1
(Florida)

Posts:1407


04/10/2019 8:41 AM  
Posted By CjC on 04/09/2019 7:56 AM
Lets say an HOA has a covenant that no elected BOD member may serve more than 2 consecutive terms.

Would you rather:
1. Violate this and reelect a person to 3 terms if no one else volunteers
2. have a board that is not full (ie- 6 members instead of 7)



Elect 6 members and the board can appoint the 7th member back on after the election. The verbiage says nothing about appointed directors, only elected ones.

Escaped former treasurer and director of a self managed association.
JohnC46
(South Carolina)

Posts:8347


04/10/2019 12:27 PM  
Posted By DouglasK1 on 04/10/2019 8:41 AM
Posted By CjC on 04/09/2019 7:56 AM
Lets say an HOA has a covenant that no elected BOD member may serve more than 2 consecutive terms.

Would you rather:
1. Violate this and reelect a person to 3 terms if no one else volunteers
2. have a board that is not full (ie- 6 members instead of 7)



Elect 6 members and the board can appoint the 7th member back on after the election. The verbiage says nothing about appointed directors, only elected ones.




I agree.
GeorgeS21
(Florida)

Posts:1227


04/10/2019 4:48 PM  
I’m not sure the BoD can appoint someone if the seat was originally empty following the election.

Most Bylaws allow BoD to appoint to fill a position that became empty following the election of someone to that position.

Did I misread?
JoyceR2
(Virginia)

Posts:150


04/10/2019 6:41 PM  
Always do the right thing for the right reason.
ND
(PA)

Posts:300


04/11/2019 3:52 AM  
With great power comes great responsibility.
ND
(PA)

Posts:300


04/11/2019 3:56 AM  
I agree with George. Plus appointing someone to intentionally circumvent an established rule, while possible, does not send the right message.
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