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BruceP1
(California)

Posts:13

12/01/2008 11:13 PM
Our Board received a petition signed by 18 owners (more than the required 5%), for the recall of two current Board members. Need someone familiar with the law in CA to chime in here as our Property Management Rep. is of the opinion that the petition requires the entire Board to be recalled, even though the petition only mentions two Board members by name. Can the recall proceed against the two Board members, or is the entire Board effectively recalled?

GlenL
(Ohio)

Posts:1470

12/01/2008 11:35 PM
Bruce, according to davis-stirling.com it can be either/or it all depends on how the recall petition is worded; they have samples of both types of petitions available. That is unless you have some language in your CC&R's that requires the BOD as a whole be recalled.

SusanW1
(Michigan)

Posts:2316

12/02/2008 5:21 AM
Just to confirm . . . the recall petition is just to bring it to a vote, right? I wouldn't want anyone to think that it just takes that small amount of signatures to remove a board member. The petition is the first step in holding a vote.

FredN
(California)

Posts:11

12/02/2008 8:00 AM
Recall Elections Under The New Election Code, or... The Kind of Stuff Lawsuits Are Made Of by Stanley Feldsott and Erika Chong Feldsott & Lee It is not unusual to expect that sometime during the life of an association the board of directors will become involved in a recall election. As you can imagine, emotions run high at the meeting. Given the fact that it is the board that is subject to the recall that runs the recall election, these cases often times wind up in court. After the expenditure of significant monies on attorneys fees, a judge makes a determination as to whether the recall election was valid. Thus, it is extremely important that these elections be handled properly. Recall elections involving a recall of the entire board pose far fewer technical problems. Corporations Code, §7222(a) provides, in pertinent part, that: "In a corporation with fewer than fifty members, such removal is approved by a majority of all members (§5033). "In a corporation with fifty or more members, such removal is approved by the members (§5034) [i.e., a majority of the quorum]." The real challenges arise when less than all of the directors are being removed in an association whose bylaws authorize members to cumulate their votes pursuant to subparagraph (a) of Corporations Code, §7615 (almost all associations). in such situations, Corporations Code, §7222 provides, in pertinent part, that: "No director may be removed ... when the votes cast against removal, or not consenting in writing to such removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes were cast (or, if such action is taken by written ballot, all memberships entitled to vote were voted) and the entire number of directors authorized at the time of the director's most recent election were then being elected." The formula used to determine the number of votes needed to defeat the removal of a director pursuant to Corporations Code, §7222 is as follows: X is the number of votes needed to defeat the recall measure. If the recall election is to be had at a meeting (the usual manner for such matters), S represents the total number of votes being cast at that recall meeting, not the total number of members in the association. In the removal situation, D is always equal to 1, even if the meeting is being called to remove two directors. If two directors were to be removed, there would be two separate votes, one for removal of Director A and a second for removal of Director B. In each instance, D, in the formula, would be 1. See Corporations Code, §7222 which states: "No director may be removed ... when the votes cast against removal ... would be sufficient to elect such director if voted cumulatively....... N is the total number of directors authorized and not simply the number of directors elected at the prior meeting. Section 7222 states: "The entire number of directors authorized at the time of the director's most recent election were then being elected." The use of the singular possessive [Director's] suggests that it is not the most recent election, but rather the most recent election at which the director to be recalled was elected. This is an issue that frequently comes up when an association has a staggered board, i.e. two-year terms with 3 directors elected one year and 2 directors elected the following year. Then the question arises whether N is the total number authorized (5) or the number of directors elected at the time the director whose recall is sought, which might be 2 or 3. The language of the statute is a bit ambiguous but suggests 5. The logic (if any) underlying the statute suggests using the number elected (2 or 3) at the most recent election. Recall elections start out via the calling of a special meeting of the members. This meeting can be called in accordance with the Bylaws or can be compelled by the members themselves through the petition process. The petition must be signed by at least 5% of the members and should demand the calling of a special meeting for the purpose of: A. Recalling the board or certain named directors; and B. Electing new directors if the recall is successful. The entire matter is dealt with at one membership meeting. The Corporations Code requires the board to send out a notice of the meeting within twenty days after receipt by the association of the petition. The meeting must be set not less than thirty-five nor more than ninety days after receipt of the petition. Corporations Code, §7511(c). Members must now also be sent nomination forms prior to the mailing out of ballots for the meeting so they can nominate potential successors if the recall is successful. The new elections law set out in Civil Code, §1363.03 requires that elections for the removal of directors be done through secret ballot by mail, voting in person at the meeting or by proxy if authorized by the governing documents. The ballots must be mailed by first-class mail or delivered to each member at least 30 days before the vote. It further requires the association to allow for cumulative voting, if cumulative voting is provided for in the governing documents. Since an election for successors to the recalled board must also be done by secret ballot, the ballot should allow members to vote in favor of, against or abstain from voting on the recall, and in a separate section or ballot, allow members to vote for or abstain from voting on the nominees for successors in the event that the recall is successful. In general, elections of this type are decided by the mail-in ballots or proxies. The side that wins is the side that puts forth the greater campaign effort. After the passage of the new law, only other members are eligible to be proxy holders. Civil Code, §1363.03(d)(1)(A). Also, the Board can elect not to have the association send out proxies. If the governing documents allow for the use of proxies, then proxies can be prepared by members and used at the meeting. The proxies must be in a form that satisfies the new election code. Civil Code, §1363.03(d)(2). Proxies used in a recall election must afford the proxy giver an opportunity to instruct the proxy holder on whether to vote for, against or abstain on the recall issue. The voting instructions for the proxy must be on a separate page attached to the proxy. The Association does not need to send out proxies, only mail-in ballots. If you are going to be embroiled in a recall election, you really should seek the advice of competent legal counsel. There is nothing worse than finding out that your proxies are invalid or that the board is not calling a meeting because your petition is defective. A sample petition, mail-in ballot and proxy are below. Sample Petition Form - Sample Mail-in Ballot Form - Sample Proxy Form Go to BEGINNING OF ARTICLE Home \|The Firm \| Services \| Attorney Profiles Publications \| News \| Contact Us \|Legal Disclaimers Copyright 2001-2008 by Feldsott & Lee, All Rights Reserved Web Site by AdMarsh, Inc.

YoshimiZ1
(California)

Posts:16

12/05/2008 10:42 PM
What if the management company and the board members refuse to recognize the result of petition? What can I do to enforce it? Last time I collected the sinatures for the different subject, it was refused by the management company saying, "Signatures are not going to change anything." We have so many laws that have no enforcement. Who can I turn it into, if the management company refuses to look at the petition?

SusanW1
(Michigan)

Posts:2316

12/06/2008 6:28 AM
Yosh - the PETITION (which means "to ask") is only the first step. It requests a meeting for the purpose of holding a vote to recall board members. So you must look at your laws and see how many days the board has to respond to the petition for a recall. Usually they have to set the meeting. Then the real work begins, because you have to have to votes to recall the members you want out.

YoshimiZ1
(California)

Posts:16

12/06/2008 10:05 AM
SusanW1, you have been helpful to me and to other posters and I have nothing against you but here's what I have seen in this forum. There are so many complaints and suggestions posted in this forum. But I have never seen the posts saying. "Here's what we did and it worked." We have so many laws including Davis & Stirling act, but look into the end of the law, there is nobody to enforce it. In our case, all the management company has to do is to say, "We don't care." Then what else we can do? Nothing. Pay the money to hire an attorney? I wish someone else does. Everbody wishes someone else does and nobody does. Only way to correct this is to change the laws to become punishable but no politiciasn's listening. We should make the links to the responsible politcians availabe and stickied to the top of the forum, and by each states, but it's not happening. We have to work the government or no way we can fix this organized corruption by each individuals. I'm starting to hear the similar complaints from the people in various associations, regardless poor or rich community. It'll only get worse.

SusanW1
(Michigan)

Posts:2316

12/06/2008 10:28 AM
Yosh - the last thing you want is the GOVERNMENT in on running your HOA. ALL the procedures are there for handling most things that come up in HOAs. They are located in your HOA documents and backed up by state statutes. The "Collective Membership" is the most powerful entity of an HOA. If your Members get together and vote in something, then it will be done. You seem to have some issues that are important to you. Apparently they are not that important to the rest of the Members. You will have to get them together - and with the help of an attorney - make some changes. Don't look for the legislature to ENFORCE your own rules!

MaryA1
(Arizona)

Posts:2504

12/06/2008 10:59 AM
Yoshima, Your complaints are valid! Most states that have HOA statutes do not have a state agency charged with enforcing those laws. In that case, if the board violates the law the only recourse is to take them to court. That is very costly and depending upon what the violation is, it may not be worth the time and expense. It's a very frustrating! I agree that this needs to be fixed, but most people are just too complacent. If you have the drive and incentive to do something about it, I say go to it. Contact your state rep. and ask for his assistance. One person can make a difference but it take persistence, patience, drive and incentive. I've been at the AZ legislature trying to get an HOA bill passed. It's hard work and it's time consuming. It all depends upon how dedicated you are and how much time you have to devote to it. Don't expect others to come forward to help you -- it ain't gonna happen! :-(

YoshimiZ1
(California)

Posts:16

12/06/2008 11:18 AM
to MaryA1: Thanks for the encouraging post. I often get replies from angry people by raising this particular issue. Another thing I want to point out that there are many attorneys on the net specialized in HOA laws(Davis & Stirling act in particular) but I have never seen them listing their winning cases. That tells you something. I think they make money by explaining what the law says but not fighting with it. At this point, my opinion is, it'll be only waste of money paying for them. I would go a step further, I'm starting to see who are lobbying against the law becoming punishable and really effect. I think we should make a list of the links to the politicians by each states, so each person can contact them much easier. If we know the issue, someone and it can be me, write a basic letter and post on the net, so the other people can just paste and copy then send it in. By the way, I'll like you even more if you call me Yoshimi or Yoshi, instead of Yoshima. ^_^ Yoshi

JohnK3
(Pennsylvania)

Posts:568

12/06/2008 11:33 AM
Yoshi, You wrote: >>>I think we should make a list of the links to the politicians by each states, so each person can contact them much easier. If we know the issue, someone and it can be me, write a basic letter and post on the net, so the other people can just paste and copy then send it in.<<< Great idea. But how about if you handle the project and let us know when it's done as many of our correspondents already have a full plate fielding micro issues here on HOATalk.

MaryA1
(Arizona)

Posts:2504

12/07/2008 1:06 AM
Yoshi, Oops. . .I think I inadvertently changed your sex. LOL So sorry!

GlenL
(Ohio)

Posts:1470

12/07/2008 4:53 AM
Posted By YoshimiZ1 on 12/05/2008 10:42 PM What if the management company and the board members refuse to recognize the result of petition? What can I do to enforce it? Last time I collected the sinatures for the different subject, it was refused by the management company saying, "Signatures are not going to change anything." We have so many laws that have no enforcement. Who can I turn it into, if the management company refuses to look at the petition? Yoshi, what was the petition the BOD & MC ignored for? If it was for day to day operational matters then they were correct in ignoring it (not necessarily smart but correct) as they are charged with deciding how the HOA operates; if it was to hold a meeting or recall and it was done as prescribed by your documents and or state law then they acted inappropriately.

YoshimiZ1
(California)

Posts:16

12/07/2008 9:19 AM
to GelnL: I'll spend more time and explain it better. Here's a short version of explanation. What actually she's saying is, "I'm not going to look at the petition, mo matter what it is for, how many signature you collected." If I was in her position to help the association, I would be expected to the following. Look at the petition and ask the real intention, if the number of sigs. are not enough, tell them so and if it meets the requirement, tell the next step and what can happen. Isn't that what she should be doing? It's been consistent, her(the management company) intention is to keep her job first then prevent anything against it to happen before it starts.

DonnaS
(Tennessee)

Posts:2951

12/07/2008 11:49 AM
Yoshi, In my State-(Florida), we have an ombudsman that we send complaints to. If it is more serious, you also have your State Attorney General who is required to enforce State Laws and Statutes. It depends on how much persistance that you have. If you are sure that you have done your homework and have all of the i's dotted and t's crossed, you can file a complaint with the State. A.G.

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