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MikeR
(Utah)

Posts:27

04/05/2006 10:02 AM
After 9 months with an inactive board that refuses to enforce the CC&R's the president is ready to resign. My question is what is the best way to replace this officer and any other officers that might want to go with him? For four months I've been requesting that the officers enforce the CC&R's. It's his belief that it's the choice of the president to enforce or not. Please help me with this.

RogerB
(Colorado)

Posts:3724

04/05/2006 12:33 PM
Mike, it is not the choice of the President to enforce; it is the responsibility of the Board to enforce the CC&Rs. When a director resigns from the Board or when an officer resigns their office but does not resign from the board the bylaws should state how to replacement is to be done. Usually the remaining directors appoint a replacement when a director resigns in writing from the Board and they vote to replace an officer who resigns their position.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

MikeR
(Utah)

Posts:27

04/05/2006 2:19 PM
Roger, In this case the board and the officers are the same. So, if they all resign what is the process to replace them.

RogerB
(Colorado)

Posts:3724

04/05/2006 3:46 PM
Call a special meeting of the Homeowners ASAP to elect new directors to replace them. Their terms are usually staggered, for example if there are 5 directors each serving a three year term, then 1-2 will have less than one year, 1 -2 more than one year, and 1-2 more than two years left to complete their term. Prior to voting determine how the term for each new elected director will be determined.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

BrianB
(California)

Posts:1748

04/07/2006 6:56 PM
perfect timing on this question. Roger is right, the by laws will state how to replace a single board member resignation. usually, this is done by appointment by others on the board. However, if the entire board resigns, then who is left to appoint? I am in the same boat: my three person board has been serving for 5 years now, because no other member of the association is willing to step up and serve. we can't even have a meeting to vote new board members, because no one will nominate themselves or anyone else...and without nominations, we can't do a absentee ballot, and without an absentee ballot, we can't hold an election. So, if we all resign, then what? No one left to appoint someone, and we have no by-laws that allow the owners to elect a new board. I say give it a try. everyone resign, and see what the members do.

KarenS11
(Florida)

Posts:145

08/31/2008 6:29 PM
Interesting discussion. If all the officers resign, a special meeting may be called, but by whom? If there is no board, who can call the meeting? The owners can if meeting the % required to do so, but they must petition the board to hold the meeting. If there is no board in place....then what? And if state law requires 60 day notice in advance of the election, what happens during the two month period when no board is in place?

KirkW1
(Texas)

Posts:1190

08/31/2008 6:56 PM
Brian, Quite honestly, I would start working to dissolving the organization. If nobody (outside the current Board) is willing to be nominated, then it is fair to presume that they don't really care to have the organization. There are things that will need to be taken care of, but it would seem preferable to the current situation. The biggest thing is to see who will care for common areas. Where I live the city will cut the grass outside the walls. (Technically this is owned by the city anyway.) It won't be as often as we cut it, but that is an option.

GeorgerwilliamsW
(Indiana)

Posts:767

09/01/2008 4:20 AM
Posted By RogerB on 04/05/2006 12:33 PM Mike, it is not the choice of the President to enforce; it is the responsibility of the Board to enforce the CC&Rs. When a director resigns from the Board or when an officer resigns their office but does not resign from the board the bylaws should state how to replacement is to be done. Usually the remaining directors appoint a replacement when a director resigns in writing from the Board and they vote to replace an officer who resigns their position. Roger, I have to take issue with you here. Unless you know something I don't about the law in Utah or the particular situation, you cannot say with certainty that it is the responsibility of the board or association to enforce covenants. In many homeowners associations in Indiana, for instance, the association does not have the obligation or duty or responsibility to enforce covenants. The association has the choice to enforce or not. It is a "may enforce, not a "shall or will enforce." Indeed, in Hoosierland, many covenants give equal rights to enforce rules and covenants to both homeowners and the association. The controlling factors here are (1) declarations and (2) state law.

MaryA1
(Arizona)

Posts:2483

09/01/2008 6:29 AM
George, I agree! We've had this discussion b/4, in fact quite recently. I posted a court case here in AZ in which the h/o prevailed because the gov. docs explicitly gave the board the "duty" to enforce. It all depends upon what authority is vested in the board as to whether or not they MUST enforce the CCR restrictions. Also, depending upon the wording of the declaration, the members may or may not have the authority to enforce in the absense of board enforcement. Even that authority oftentimes comes with conditions. In some instances the board must fail to enforce for a period of time b/4 the member(s) have the authority to enforce. In some instances an individual member can enforce; in others it takes a certain % of the members to enforce. As we've said so many times regarding other issues; it all depends upon your particular gov. docs.

MaryA1
(Arizona)

Posts:2483

09/01/2008 6:39 AM
What should be done when all the board members resign? This happened in my former assn. The whole board resigned because they didn't like the results of a petition circulated by one member. Several of us rounded up candidates and organized a special meeting to elect new officers. Unless anyone is interested I won't go into all the particulars involved -- it's a long story. AZ nonprofit statutes state a board member shall serve until someone is elected to replace. However, that doesn't always happen. When there is a vacancy on the board, it's up to the remaining board members -- even if it's only one -- to determine what action can be taken to fill those vacancies. The gov. docs (usually the bylaws) should state what this action is. In the absence of a state procedure, IMO, the remaining board member(s) should call a special meeting for the purpose of electing members to fill the vacancy. If this is impossible because of a lack of quorum or lack of candidates, then they should try to make appointments. I've found that some people may be unwilling to run for a position but will take an appointment. Some people just don't want to face the possibility of defeat!

KarenS11
(Florida)

Posts:145

09/01/2008 10:38 AM
How long did you go without a board until the special election? I haven't found where our state law addresses an entire board leaving office before an election and the by-laws do not speak to this either. This will be a question for the association attorney, I would imagine, but I was hoping to hear how other have handled it. If 60 days notice is required prior to elections, then it would seem that there should be something in place to replace the board on an interim basis until a vote on new directors.

MaryA1
(Arizona)

Posts:2483

09/01/2008 12:31 PM
Posted By KarenS11 on 09/01/2008 10:38 AM How long did you go without a board until the special election? I haven't found where our state law addresses an entire board leaving office before an election and the by-laws do not speak to this either. This will be a question for the association attorney, I would imagine, but I was hoping to hear how other have handled it. If 60 days notice is required prior to elections, then it would seem that there should be something in place to replace the board on an interim basis until a vote on new directors. It's been over five years and I now live in a differnt s/d, but I think it wasn't more than 2 wks. The bylaws state notice must be given not less than 10 days nor more than 45 days (same as my current assn's bylaws). Are you sure you must give notice 60 days prior -- that seems quite excessive. Our HOA was only 49 members and the board had hired a bookkeeper to maintain all the financial records. About a week b/4 all the board members resigned they had signed a contract to hire a mgmt co and also fired the landscaper. I contacted the new mgmt co and was told they did not wanted to cancel the contract,so there was no one on board to manage the assn. Several of us members went around the community explaining the situation and asking for volunteers to run for the board positions. Our board was comprised of 3-5 members. We were able to get three; my husband and two others which enabled us to make plans for the special meeting. I contacted the landscaper (I had hired him when I was a board member) and ask him if he wouldn't stay on at least until the new board was in place -- he agreed. I also met with the V.P. of the mgmt co who turned over all the records to me along with the $2,000 deposit they had received. The bookkeeper continued to do her job so there was no problem with the finances. Actually, it all went rather smoothly.

GeorgerwilliamsW
(Indiana)

Posts:767

09/02/2008 12:02 PM
This is from The Hundred and One Most Asked Questions: By Richard White, © 2008 Contact Information: www.TalkWithCAM.com Email: richard@talkwithcam.com 90. Association Receivership: Can you advise as to what would happen to an association if the board of directors all resigned and no replacements could be found to replace them? Our management company advises us that the association would go into receivership and state would take over. RU- Miami Theatrically the last remaining director cannot resign because he/she would not have any director to provide a resignation letter. But we know that the last director can abandon the position thereby leaving no directors. The answer would be that any member of the association can petition the courts, not the state, to appoint a receiver. Just who do you think the courts will appoint as a receiver? Not just a person off the streets but a well qualified professional, an expensive professional. Who will pay for the court costs and for the receiver? You and the members will pay for the new expenses in addition to the necessary operational expenses that you normally pay. Not a cheap way to go. A receiver will want to make sure that the association is properly operated and would establish an adequate budget to include his/her costs. You would more than likely see your fees double or more. Since the receiver reports to the court, the members would not have any say in the operations or budget of the association. What you have is owner apathy and you need to get your neighbors more involved or they will pay the higher costs.

TamaraW
(Ohio)

Posts:180

09/02/2008 12:49 PM
A nominating committee may be helpful. This is aside from Board Members. In our association we can do this and Board Nominations can come from anyone who owns their homes. If you have people willing to take over positions that are vacant, they should have the right to step up and join the present Board Members.

SusanW1
(Michigan)

Posts:2314

09/02/2008 5:12 PM
Mike - default is that the VP will step into the president's role and then there is a vacancy in the VP's role - which can be filled according to your documents for filling vacancies. BTW - If the Pres. resigns, is he off the Board, too? In fact, if all the officers resign, are they off the board entirely?

SidneyP
(Florida)

Posts:292

09/03/2008 3:39 PM
Roger...our President has just resigned. Does the VP automatically move into her position?...This VP odes not live in his unit, infact he does not live in Flordia, he lives in Mass....We have a HO that wants that position but the VP says it is his by default....Is he right, is there anything we can do?

TamaraW
(Ohio)

Posts:180

09/03/2008 4:15 PM
How does he make it too meetings if he is not even in the state? Is there a clause in your bylaws that any BOD can be removed from the BOD for any reason? Talk about your conflict of interest Quote - excepting only directors named in the articles or selected by declarant, any director may be removed from the board with or without cause, by the holders of not less than 75% of the voting power of homeowners. If it does say that in your bylaws, go get votes siting conflict of interst.

KirkW1
(Texas)

Posts:1190

09/03/2008 5:17 PM
...our President has just resigned. Does the VP automatically move into her position?...This VP odes not live in his unit, infact he does not live in Flordia, he lives in Mass.... The office of VP takes over the position President should the President resign or otherwise be unable to continue in that capacity. The fact that he/she doesn't live in the unit or even the state our country has no effect. As to if there is anything that can be done, there quite possibly is. It would take a motion from a member of the BOD to appoint a new President. Having said that, I don't think you should replace the president simply because of where the person lives. I would recommend that you focus on getting your community to solvency and running on an even keel. To that end, you should work through the remainder of the year with the vice-president having taken over as president. Remember that the president of the community has just one vote in a meeting the same as everyone else.

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