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RobertR1
(South Carolina)

Posts:2147

01/24/2008 6:53 AM
DanaA, I think you are headed in the correct direction. I don't recall how much this particular subject has been discussed but in any event you and your fellow owner should discuss it in some length, The question of doing this in a private manner or going completely public with your actions. It is hard and probably not right just to give your fellow owners just part of what you are attempting to do. On the other hand you both have been wronged publicly by the Board but it could be considered a personal concern. Then you write that there are lots of other things that need to be done to get things right and they would require changes that effect the members. May I suggest you ask around indirectly about how your neigghbors are feeling and convey this impression to your legal concil and discuss with them a class action suit. I'm no expert but it may have advantages (helping with your attorneys fees). Just something to think about and including more members into the fray.

RobertR1
(South Carolina)

Posts:2147

01/24/2008 7:02 AM
DanaA, Experience history seems to indicate that, IF POSSIBLE, results of your efforts will be better and quicker if settled out of court. Generally, the courts would much rather the associations handle everything in house. Criminal conduct excepted. You all are still going to have to leave there after all this is over. It will create hard feelings, that don't mean it shouldn't be done, but don't ruffle any more feeling than you have to. The best to you all, and I include your families. I am sure this has been a lively topic in your homes. You all should feel good about this.

RobertR1
(South Carolina)

Posts:2147

01/24/2008 7:04 AM
Crap, I didn't mean "leave" there, I meant "Live there."

DanaA
(Florida)

Posts:116

01/25/2008 6:28 PM
Hi all. I called the Association Attorney, he took my call. When I explained the purpose for my call, I asked him if he had given our President a written legal opinion for the removal of the two BODs in the manner it ws handled. Our Pres indicated that he had spoken with our attorney as if implying that it was the two of them that had resolve the issue, and giving some credence to the issue. I explained to attorney that I had been up and down the Florida Statutes and I do not see that this was a legal action. Attorney acknowledged that he had spoken with my President about this issue, but that he could not discuss it with me. He told me he did not write an opinion letter, and that since he only is authorized to discuss association business with our President ("for years and years"), I should contact President and with his authority and permission the attorney would talk to me. Atty said he did not want to talk to me and then send the bill to the association, and have the BOD refuse the bill because he was not authorized to talk with me. The President will not answer, or return my call.I am sure he will not authorize my conversation with our attorney, because after all I am not on the BOD anymore. The membership is buzzing, no one quite understand how this happened. Another BOD stated to a member that "we finally got rid of those two". I am still convinced this is an incorrect BOD action. Please suggestions? Thank you, Dana

GeraldT4

Posts:932

01/25/2008 7:20 PM
DanaA - DonN previously posted, "With regard to relationships with the attorney, the client is the association, not the board, not the members and not the agent who may contact the attorney. The decision to contact the attorney should be by board motion that clearly defines the problem and the advice sought. The attorney's advice should repeat the problem and the advice sought and then provide the legal advice to keep the problem and the advice together. All members of the board should get copies of both the communication to the attorney and the advice back from the attorney. Without the board controlling the interface with the attorney, the matters are basically out of control and prone to abuse by the president who claims to be the sole agent and does not provide the attorney's advice to the board members. As a practical matter, all the members should have access to communications to and from the attorney. The members pay for the advice. The client is the association. Members could be affected by the advice and therefore have a right to its access.". Honestly I don't see why you contacted the attorney. Even if you were not removed (however illegally it may be) from the Board, the decision to contact the attorney should be with consensus of the Board. Here you are fighting for change of the activity that you just did (no matter how well intentioned). What do you think the President is going to do with that bit of information when the attorney contacts him? My suggestion is don't shoot yourself in the foot. Show up and sit at the front of the table at the next meeting as if you are still a Board member, or run for election, or get a petition to recall the Pres. and his team of idiots.

DanaA
(Florida)

Posts:116

01/27/2008 4:44 PM
Hi everone. Got our Meeting Minutes from last week from another BOD, and I have cut and pasted. It is lengthy, so cannot fit on one post, read the next one as well. Thanks, Exactly as typed in minutes, names omitted. MINUTES: Meeting called to order, board members noted in attendance AGENDA: PRESIDENT told Board members to write in 7.1 Board Size Reduction” on their agendas under Other Business. (XXXXXXXXXOther Agenda Items Addressed) OTHER BUSINESSBoard Size Reduction: In an email dated 1/18/08 to President XXX and Property Manager, XXXX (CAM), Dana XXXX asserted that the number of Board members needed to be reduced to seven to comply with the Articles of Incorporation versus the Bylaws which say nine members. President XXX contacted XXX, our association attorney, and he confirmed that the Articles of Incorporation are superior to the Bylaws in the hierarchy of Association documents and Dana is correct. At the Board meeting, PRES XXXX thanked Dana, for bringing this to our attention. (Please see post that comes next, or above this one for the rest. Thanks, Dana)

DanaA
(Florida)

Posts:116

01/27/2008 4:49 PM
Continuation of my post that is next to this one. Too lengthy. Please read other one first, thanks! Attorney XXXX advised that the present nine seat Board is not legal and that any actions taken by this and prior nine seat boards were not legal and subject to challenge. Considering the number and impact of actions taken and the repercussions of challenges, he advised that we immediately reduce the number of Board seats to seven and then with the new legal Board of seven, ratify and affirm all prior Board actions as being lawful actions. President XXXX and Attorney XXXX reviewed alternatives and decided that removal of the two seats that received the least votes in the last election at the 2007 Annual Meeting was the most timely, fair and equitable method. President XXX explained that the 2007 election created an illegal Board by filling five seats instead of three seats as required by the Articles of Incorporation. Therefore, a wrong is turned into a right by removing two seats from the present nine seat Board and creating the seven seat Board that would have been created had the Articles of Incorporation have followed. (Dana comments: Attorney did not provide written opinion to our board.) President XXX explained that a vote on the method of removing the two seats with the least votes does not entail a conflict of interest because Board election results do not disclose the candidate’s number of votes or place in the group and therefore the Board members voting do not know the names of the two with the least votes except the President knows and will abstain. This information is contained in the report of the Inspectors of Election given to the President to announce the Directors elected and the details of number of votes and place in the group are kept confidential. This method is fair because the Directors are removed based on seat elimination and votes received as opposed to anything personal. They can also run for re-election in the upcoming Annual Meeting election. Inspectors of Elections for the 2007 Annual Meeting XXXXXX, Property Manager (CAM) and XXXXX member, not board member, were asked to review their report and announce the names of the two candidates elected who received the least votes. Property Manager XXXX announced and XXXXX member agreed that that two with least votes were XXX(Dana) and XXX Board member. Secretary XXXX made the following motion, “I move that the number of seats on the Board of Directors be reduced to seven per the Articles of Incorporation by removing the seats of the two Board members who received the least votes at the 2007 Annual Meeting”. The motion was seconded by XXXX Board member, and passed with President XXXX abstaining. With the Board of Directors now being a legal seven seat Board per the Articles of Incorporation, Secretary XXXX made the following motion, “I move to ratify and affirm all prior Board of Directors actions as being lawful actions of the XXXXX community association.” The motion was seconded by XXXX and passed unanimously.

RobertR1
(South Carolina)

Posts:2147

01/27/2008 5:52 PM
Well Dana, I would first wait and see what the minutes say about the meeting. Was this meeting called correctly as your documents specify. I would make sure there is no stipulation in the correct corporation laws that does defer to any requirements of the association documents. I qould also request a copy of the voting number in the general election. I would closely make sure any action taken that night is above reproach and to the letter. Then I guess you sit down with you felolow exile and determine what you both should do. What do you want to gain and how do you aim to do it. Give us some ideas you have and loet's see if we can help. This action by the Board making sure they are following some regulations> Is that there normal way to do business or is all this unheard of. Have they defered to corporation law in their general meetings? All questions that may shed some light on your possibilities or further actions. Personally, this all sounds preplanned to me, but that is just a suspecion. If you can prove it was discussed and planned by the Board members, you can cause some problems. If they met to discuss business and don't take minutes and follow procedures for a meeting and open and close this meeting, in my book that is an illegal meeting and both meeting should be declared improper.

GeraldT4

Posts:932

01/28/2008 5:44 AM
Dana - Have these minutes been officially voted on for approval by the BOD in an open meeting? Usually the previous meetings minutes are approved at the next meeting. If not the BOD that gave them to you did a "no, no", but you may have an alliance there. It's nice to see that the BOD had an agenda for the meeting but it's interesting that 7.1 needed to be written in. "OTHER BUSINESS"?? There's New Business and Old Business. IMHO, whether you prove the BOD of acting in the wrong or not, I suggest you and the other member that was removed re-run for election and replace two of the other ones. That's the only way that change will ever occur. In with new, out with the old.

DanaA
(Florida)

Posts:116

01/28/2008 7:55 AM
Thanks,the minutes, customarily, are distributed to BOD members for review and corrections. Then at the next board meeting, we always waive reading of the minutes, and then vote to approve the minutes as published. I believe the removal of two board members by the BOD must be declared to be invalid based on: 1) Board members removing board members Not addressed in the Florida Statutes 720. 720 states that board members can be removed by the membership only. This action takes away the membership wishes. 2) Association lawyer did not provide a written opinion to the board or President, and only discussed options via telephone with President, who unilaterally made the decision to remove the two board members from most recent election who have one year remaining on term. Though the board voted for approval of the motion, no discussion was made of what other options were available, or discussed with the attorney. (As in removing 2 BOD whose terms are ending). 3) No certified election results from 2007 were presented, though the Secretary is responsible for keeping all written legal documents, President states that only President knew who the two board members were who were being removed, and Pres abstained from vote. 4) Election is thirty days away to correct the number on board by electing 2 open board positions, bringing proper quorum to 7, vs. 9 Should I send this to the BOD reqesting a written opinion from the attorney before I recognize this board action? If I receive a written opinion from our attorney then I would recognize this to be valid.

SusanW1
(Michigan)

Posts:2171

01/28/2008 8:22 AM
Dana - this is such a mess, and since elections are in 30 days, why don't you spend time on campaigning for one of the seats instead of re-hashing this over and over? Some other thoughts -- This "removal" of the 2 Board members was not the kind of removal that the Membership takes to get rid of bad board members. The Board had no choice other than to adjust itself to be in compliance with the Articles. I know you are upset with HOW that was done, but under the circumstances, they had no other choice (I believe that any judge would have done the same. What else is there, drawing straws?) The results of all election should be posted and included in the minutes. This should have been caught long ago. There are no secrets in elections! Good luck and focus on the future . . .

GeraldT4

Posts:932

01/28/2008 9:13 AM
Dana - I agree with SusanW1, don't fight city hall on this one. Additionally, Since when is the decision of a Board invalidated without an attorney's written letter, or opinion?

DanaA
(Florida)

Posts:116

01/29/2008 6:21 PM
Exactly my thoughts, Gerald. Which is why the other board member removed and I met with a lawyer today, who is requesting documentation on our behalf. Will update you all, probably next week before I hear anything. If this was legal, so be it. If not, the members deserve another year with us on the board, as elected. I will post an outcome, upon receipt. Thanks! Dana

GeraldT4

Posts:932

01/30/2008 4:51 AM
DanaA - You admit the # of BOD's needed to be reduced from 9 to 7, as stipulated in the Articles. The Articles trump the by-laws. Seems to me the BOD technically had no other choice but to honor the Articles. The manner, the method (doing it all in an open meeting, etc.) is something I would questio, and maybe challenge. But this could drag on well past your next election. So in the spirit of Super Duper Tuesday, get campaigning, hit the street, and run for re-election to get rid of one of the other 2 BOD's whose terms are up.

BonnieE
(Illinois)

Posts:169

08/13/2008 12:18 PM
Hi Dana, I was searching for information on hierarchy of documents and came upon your post. Now that I’ve read it, I am curious about the ending…what was the outcome? Did you run for re-election? Thanks - Bonnie

DonnaS
(Tennessee)

Posts:2832

08/13/2008 12:40 PM
Bonnie, I have posted the Heirarcy many times but for your convenience, here it is. 1) FEDERAL LAWS--- Including FCC, HUD, ADA,and all other federal Laws 2) ALL STATE LAWS, Statutes and Codes 3) COUNTY, CITY AND LOCAL CODES AND LAWS 4) DECLARATION OF PROTECTIVE COVENANTS (CC&RS) 5) ARTICLES OF INC (SOME CALL IT CHARTERS) 6) BY LAWS 7) RULES AND REGULATIONS of the Association

KirkW1
(Texas)

Posts:1145

08/13/2008 12:47 PM
As a side note, in Texas the way to amend the number of Board members for a non-profit is through the by-laws (according to the law governing non-profits). Just came across that last night. One may want to check for the same in Florida. Nothing is straight forward when the legislatures get involved. It could be that the amended by-laws were in fact the proper way to increase the number of directors.

DonnaS
(Tennessee)

Posts:2832

08/13/2008 12:58 PM
Kirk, In Florida, the number of Board members is stated in the Articles of Inc AND the Bylaws. They must match. That's where alot of these Associations get themselves all screwed up, Someone decides to change the Bylaws, they get the change voted in by the membership but forget to change the Articles. After all, it is the Articles that are filed with the State and they are the presiding document over the Bylaws. Seems simple but it never ceases to amaze me that it is done wrong.

BonnieE
(Illinois)

Posts:169

08/13/2008 1:15 PM
Donna – thanks so much for posting the hierarchy again! I had started with one of your posts and was looking for other posts on the topic. I also came across a post by RogerB who had noted that while a Rule can not violate a higher order document, it can make it more restrictive. My interest in this topic stems from our Rules/Regs which are more restrictive than the CCRs in certain instances. As a result, my questions on this topic (at least for now) have been answered. Meanwhile…I am still wondering about the outcome of Dana’s issue with her BOD. Bonnie

MaryA1
(Arizona)

Posts:2231

08/13/2008 1:43 PM
Posted By BonnieE on 08/13/2008 1:15 PM Donna – thanks so much for posting the hierarchy again! I had started with one of your posts and was looking for other posts on the topic. I also came across a post by RogerB who had noted that while a Rule can not violate a higher order document, it can make it more restrictive. My interest in this topic stems from our Rules/Regs which are more restrictive than the CCRs in certain instances. As a result, my questions on this topic (at least for now) have been answered. Meanwhile…I am still wondering about the outcome of Dana’s issue with her BOD. Bonnie Bonnie, Unless I've misunderstood what you said, a rule CANNOT be more restrictive than the CCRs. The rules (which are generally board-adopted with no input or vote of the members) are lowest on the totem pole. No rule can be more restrictive than a CCR provision.

DwightT
(Idaho)

Posts:456

08/13/2008 2:20 PM
Posted By MaryA1 on 08/13/2008 1:43 PM Unless I've misunderstood what you said, a rule CANNOT be more restrictive than the CCRs. The rules (which are generally board-adopted with no input or vote of the members) are lowest on the totem pole. No rule can be more restrictive than a CCR provision. Mary - the rules can't contradict the CC&Rs. Beyond that they can be either more or less restrictive. For example, the CC&Rs may state that members have the use of the common areas, but the rules can place restrictions on that use (no food in the pool, etc). Actually, I would have a hard time coming up with an example of a rule that would be LESS restrictive than a CC&R provision.

BonnieE
(Illinois)

Posts:169

08/13/2008 2:25 PM
Hi Mary, Please see below for a copy of RogerB’s post that I had referred to. Perhaps I took it out of context when I stated: “I also came across a post by RogerB who had noted that while a Rule can not violate a higher order document, it can make it more restrictive.” One observation I have made with regard to our Rules/Regs vs. CCRs is with regard to the requirement for approval by the BOD for alterations/additions. Our CCRs state that prior to an addition, alteration or improvement to the Common Elements, written consent is required from the Board – Exclusive Limited Common Elements are specifically excluded. Yet, our Board has adopted Rules which state that prior written consent is also required for the Exclusive Limited Common Elements. Under the hierarchy, the CCRs would prevail, but upon reading RogerB’s post, and your post, does the Rule or the CCRs prevail? In other words, is approval of the BOD needed prior to an alteration of an Exclusive Limited Common Element? Thanks for any help in helping me understand which came first…the chicken or the egg. :-) Bonnie RogerB’s post (response) is from the following thread started by: MarnaR (California) 02/04/2006 5:50 PM Rules amendment question – California ___________________________________________________ RogerB (Colorado) Posts:3609 02/04/2006 6:55 PM Quote Reply MarnaR, I am not familiar with California but here are some general guidelines. Usually the Bylaws give the authority to the Board to establish rules and regulations. Therefore, the majority of the Board members can change the rules. A rule can not violate a higher order document but can make it more restrictive. The Hierarchy of controlling documents is: U.S. Constitution, Federal, State, County, Municipal then Plat, Declaration, Bylaws, and lowest is Rules and Regulations. With regards to enforcement, do not ignore restrictions change them to reasonable. And until you do "use good business judgement". BTW, why not reduce the quorum requirement for member meetings to 20%? RogerB ________________________________________ 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 _________________________________________________

MaryA1
(Arizona)

Posts:2231

08/13/2008 2:26 PM
Dwight, What is meant by "more restrictive" is that a board-adopted rule cannot allow something the CCRs do not. If the CCRs do not give the board authority to make rules regarding use of the common areas; the board cannot adopt a rule doing such. Your example is not one of being more restrictive but rather an example of creating a rule that has been authorized by the CCRs.

JohnO6
(Georgia)

Posts:122

08/14/2008 5:52 AM
Posted By MaryA1 on 08/13/2008 2:26 PM Dwight, What is meant by "more restrictive" is that a board-adopted rule cannot allow something the CCRs do not. If the CCRs do not give the board authority to make rules regarding use of the common areas; the board cannot adopt a rule doing such. Your example is not one of being more restrictive but rather an example of creating a rule that has been authorized by the CCRs. Mary - I believe that you've got your "more restrictive" vs "less restrictive" backwards conceptually. If the CCRs do not address a topic at all they are "mute" and there is no level of restriction within them unless there is a "catch all" provision that either "allows" all else or "restricts" all else. You're explanation presumes that the CCRs "do not allow" something - ergo they place a restriction by not allowing something. In that case a rule that "allows" something is - as you quite correctly point out - not valid but NOT because it is "more restrictive" but rather because it is actually attempting to be "less restrictive" e.g. allowing something that the CCRs restrict.

MaryA1
(Arizona)

Posts:2231

08/14/2008 8:30 PM
Posted By JohnO6 on 08/14/2008 5:52 AM Posted By MaryA1 on 08/13/2008 2:26 PM Dwight, What is meant by "more restrictive" is that a board-adopted rule cannot allow something the CCRs do not. If the CCRs do not give the board authority to make rules regarding use of the common areas; the board cannot adopt a rule doing such. Your example is not one of being more restrictive but rather an example of creating a rule that has been authorized by the CCRs. Mary - I believe that you've got your "more restrictive" vs "less restrictive" backwards conceptually. If the CCRs do not address a topic at all they are "mute" and there is no level of restriction within them unless there is a "catch all" provision that either "allows" all else or "restricts" all else. You're explanation presumes that the CCRs "do not allow" something - ergo they place a restriction by not allowing something. In that case a rule that "allows" something is - as you quite correctly point out - not valid but NOT because it is "more restrictive" but rather because it is actually attempting to be "less restrictive" e.g. allowing something that the CCRs restrict. John, First of all I want to point out an error in my message. I wrote: "a rule that has been authorized by the CCRs", but inadvertently leff off a word. The phrase should have said ". . .a rule that has NOT been authorized by the CCRs." The point I was making is that if the CCRs do no authorize the board to make particular rules, the board cannot arbitrarily do so. In other words if the CCRs do not say the board can make rules regarding use of the common areas they cannot adopt a rule saying the common areas cannot be used for community gatherings. Adopting such a rule would be making a rule that is more restrictive than the CCRs. I don't know how you can say making a rule that restricts something that the board has no authority to restrict is being less restrictive. CCRs means "covenants, conditions and restrictions". CCRs outline the restrictions that are placed against the lots and the lot owners. Even Robert's Rules of Order states, in the chapter on writing bylaws, under the section about officers and their duties: "Great care must be taken in the writing of the article not to omit any duty, since an implication that the duty is not required could be read into the omission. Some boards erroneously adopt the philosophy, "it doesn't say that we can't do it, so we can!" When in fact, they should be thinking, "where does it say we can do it".

KirkW1
(Texas)

Posts:1145

08/15/2008 2:06 PM
I prefer to use the word consistent. This covers the whole line. A rule must be consistent with the CC&Rs. If the CC&Rs don't address an issue, then the Board can't make a rule as it would be inconsistent. This works both in the pro and the con. It prevents the board from authorizing something that was banned, and prevents them from banning something that was authorized.

GeorgerwilliamsW
(Indiana)

Posts:707

08/16/2008 4:10 AM
Posted By KirkW1 on 08/15/2008 2:06 PM I prefer to use the word consistent. This covers the whole line. A rule must be consistent with the CC&Rs. If the CC&Rs don't address an issue, then the Board can't make a rule as it would be inconsistent. This works both in the pro and the con. It prevents the board from authorizing something that was banned, and prevents them from banning something that was authorized. Ok, so what happens when the covenants contain the following catch-all: Section 19. Rules and Regulations. The Board may adopt, and may amend, modify, rescind and cancel, such other rules and regulations from time to time governing the use and enjoyment of the Property, including the Common Area, as the Board in its sole discretion deems appropriate or necessary. Other than amending the "rules" specified in the covenants, is there anything off limits to the board that is not illegal, immoral or fattening? This is a very broad statement of power.

KirkW1
(Texas)

Posts:1145

08/16/2008 12:25 PM
...Ok, so what happens when the covenants contain the following catch-all: Section 19. Rules and Regulations. The Board may adopt, and may amend, modify, rescind and cancel, such other rules and regulations from time to time governing the use and enjoyment of the Property, including the Common Area, as the Board in its sole discretion deems appropriate or necessary. My best advice is to not buy in that neighborhood. I simply would not go there. I would not care to give someone that level of power.

MaryA1
(Arizona)

Posts:2231

08/16/2008 2:05 PM
Posted By GeorgerwilliamsW on 08/16/2008 4:10 AM Posted By KirkW1 on 08/15/2008 2:06 PM I prefer to use the word consistent. This covers the whole line. A rule must be consistent with the CC&Rs. If the CC&Rs don't address an issue, then the Board can't make a rule as it would be inconsistent. This works both in the pro and the con. It prevents the board from authorizing something that was banned, and prevents them from banning something that was authorized. Ok, so what happens when the covenants contain the following catch-all: Section 19. Rules and Regulations. The Board may adopt, and may amend, modify, rescind and cancel, such other rules and regulations from time to time governing the use and enjoyment of the Property, including the Common Area, as the Board in its sole discretion deems appropriate or necessary. Other than amending the "rules" specified in the covenants, is there anything off limits to the board that is not illegal, immoral or fattening? This is a very broad statement of power. George, Is there more to this section? I'm of the opinion that what is meant regards board-adopted rules and regs NOT CCR restrictions. In other words, they may adopt, amend, modify, rescind and cancel rules & regs that they have previously adopted. Only the members have a right to amend, modify, rescind, cancel or adopt CCR restrictions.

GeorgerwilliamsW
(Indiana)

Posts:707

08/16/2008 2:50 PM
Mary, You're right. I was not as clear as I should have been. The rules referred to in Section 19 are in addition to those in the covenants. (The covenant rules are specified in sections 1-18 and 20-26* of the declaration. They are not amenable to alteration by board action.) What I am getting at is that this is an incredibly broad range power without any reasonable checks and balances. Basically if the covenants do not speak to an issue, the board has unlimited power to do anything they want. The only check is the ability to recall board members, an incredibly difficult process. There is a large potential for damage to be done. ____________________ *The odd organization of the declaration rules section is just one more example of very poor lawyering The covenants are a cut and paste job.

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Forums > Homeowner Association > HOA Discussions > Help! I have been illegally "fired" from the BOD tonight!