ErinM2
(Florida)
Posts:12
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| 03/04/2010 8:15 PM |
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| Can a unit owner that is delinquent to the tune of thousands of dollars be a member of an HOA board? I was told that they could not but this board member has been on the board for 7 years and has been delinquent for most of that time. Foreclosure proceedings have been started and this person just got elected again. What's the rule on this. Thanks. |
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RobertR1
(South Carolina)
Posts:5164
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| 03/04/2010 11:40 PM |
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Erin,
Same old story Erin, first determine what your documents say, what state law says, and see if you are under any other kind of restrictions like non-profit state requirements.
The "I was told" means nothing because if you are going to challenge his re-election on grounds it is illegal you will need the specific reference to charge him with. You have to assume he will contest this if for no other reason he has been allowed to do it for 7 years. If he is going to foreclosure, he may not be around long enough to challemge anyway.
Seems the bigger problem is the Board allowing him get be deliquent for so long, board member or not? Has this debt been turned over to a collection agency or some other method of collecting the debt? If not and others in your association have, all the board is responsible. He should have been participating as a board member to collect the arrears he owes.
I imagine someone will post the direct state law to be used as far as elgibility is concerned. What does your Board say when you question them. I suggest you go to a Board Meeting ask why this person is being allowed to continue to seek re-election when he is not paying his fees? Ask for a written answer or tape the Boards answer, ask that it be entered into the minutes and if you feel strongly enough, get a lawyer to write to the Board requesting an explanation. All this will stir the pot, of course, so, if you don't want some heat, approach a Board member privately and ask your questions. There may be explanations for this, I don't know, but it is suspect action by the Board, for allowing the debt to go uncollected.
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MaryA1
Posts:0
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| 03/05/2010 7:19 AM |
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Erin,
The answer to your question should be found in your bylaws. If it is not addressed there then there is no reason why this delinquent board member cannot continue to serve on the board. In looking over the state statutes, I cannot see where this is addressed in CH 718 (condos) or CH 720 (planned communities). I don't believe the Nonprofit Corp Act would apply in this matter. |
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LoriL1
(Florida)
Posts:51
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| 03/05/2010 11:00 AM |
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This issue is definitely addressed in Chapter 718 (condos). I don't know about Chapter 720 however. I've copied the pertinent info from the Statute below. It's 718.112 (2)(n)for your reference.
(n) Director or officer delinquencies.--A director or officer more than 90 days delinquent in the payment of regular assessments shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law. |
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JohnB26
(South Carolina)
Posts:486
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| 03/05/2010 12:38 PM |
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Posted By MaryA1 on 03/05/2010 7:19 AM
Erin,
The answer to your question should be found in your bylaws. If it is not addressed there then there is no reason why this delinquent board member cannot continue to serve on the board. In looking over the state statutes, I cannot see where this is addressed in CH 718 (condos) or CH 720 (planned communities). I don't believe the Nonprofit Corp Act would apply in this matter.
Mary: my opinion (please don't eat me):
Most not-for-profit corporate laws have a stipulation as follows:
'directors must be in good standing ..... etc'
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ErinM2
(Florida)
Posts:12
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| 03/05/2010 1:15 PM |
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Thanks for all your input. I will check our bylaws and see what it says.
Erin |
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JamesC
(Maryland)
Posts:282
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| 03/05/2010 1:42 PM |
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MaryA1
How in the world could a board member in errors to the tune of thousands of dollars sit in judgement against any other homeowner who is deliquent. Dare this board have any attorney send me deliquency letters, and threaten to foreclosure on my property when one of their own is so irresponsible. Is the HOA that desperate for volunteers to allow this member to get away with stealing the services paid for by the other homeowners.
Jim |
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CarolF
(Florida)
Posts:212
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| 03/05/2010 4:47 PM |
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| Erin - would you please tell us if you are a condo assoc. (under 718) or an HOA (under 720). You mention the word "unit" so that makes me think condo. But, I don't want to guess on this. |
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RichardP13
(California)
Posts:824
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| 03/05/2010 5:54 PM |
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Mary
I think all the good you might have brought to this forum here, just went right out the window. |
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RobertR1
(South Carolina)
Posts:5164
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| 03/05/2010 6:19 PM |
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Richard,
What IS your problem? You go along pretty good and provide creditable information for a while, and then you come up with a statement like this. If any one's credibility is in question it is yours for making such a statement. I have asked you once to please play nice if you want to play in this sandbox, you refuse. Do not expect me to post on any thread that you post on.
Why not just move on to someplace where you can be appreciated. Mary does not have to please you, she has earned her reputation as a solid source of information to people asking for help. I can tell you true, if you have an HOA issue, go to people like Mary. Richard, people read this site for information, not pronouncements of criticism of the other posters, it's tough enough to do this without you. |
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RichardP13
(California)
Posts:824
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| 03/05/2010 6:29 PM |
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Robert
Oh really. It is alright for someone to post that a board member delinquent in dues can continue to serve. You really have to be kidding. That sends a great message to newcomers to this site looking for guidance. A Board Member is above any rules that their governing docs provides? Maybe advise them to resign. |
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RichardP13
(California)
Posts:824
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| 03/05/2010 6:35 PM |
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Robert
Besides I'm sure Mary's a big girl can explain her comment. |
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JamesC
(Maryland)
Posts:282
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| 03/06/2010 7:31 AM |
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Richard:
I agree with you 100%.
Mary, may give good advice, and like everyone else, she possibly is capable of also
giving bad advice.
The hypocrisy of an active member of the board being allowed to continue to serve while being deliquent for seven years is unbelieveable.
I can't imagine a better definition of discrimination then for this member sitting at the board meeting judging "ANY" homeowner on issues of their community.
Don't understand the criticism you just received, because you expressed your opinion, but because you disagreed with Mary, on hers, you get slammed.
I think Mary, should rethink her comment. I have read some of her many posts, and having posted over 5,000 of them, she could be looked upon as someone having a lot of knowledge on HOA issues, but unfortunately on this one, she could not be "MORE WRONG"
Jim
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RogerB
(Colorado)
Posts:4645
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| 03/06/2010 8:10 AM |
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Posted By MaryA1 on 03/05/2010 7:19 AM
Erin,
The answer to your question should be found in your bylaws. If it is not addressed there then there is no reason why this delinquent board member cannot continue to serve on the board. In looking over the state statutes, I cannot see where this is addressed in CH 718 (condos) or CH 720 (planned communities). I don't believe the Nonprofit Corp Act would apply in this matter.
I think Mary's post is right on and needs no further explanation. If it is not in the Bylaws and or the state statutes then they can serve. The Bylaws can be changed to correct this problem. Remember the restrictions on who can be a Board member are established by the Developer to protect their investment. They have their "friends", usually nonmembers, control the Board until the community is developed.
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RobertR1
(South Carolina)
Posts:5164
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| 03/06/2010 9:00 AM |
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Roger,
Well, you got my vote, but I doubt there is any real desire to bring reason into the conversation. I also point out that Mary never said she was expressing a personal opinion, her post was on what was written in the documents. |
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MaryA1
Posts:0
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| 03/06/2010 10:20 AM |
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Lori,
Thx for the correction. I looked through the statutes but didn't see it! |
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MaryA1
Posts:0
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| 03/06/2010 10:40 AM |
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First of all I want to thank Roger and Robert for coming to my defense.
Now to address James and Richard:
I'm sorry you think I didn't give good advice; however, my comment was based upon what the bylaws and state law say. It was not my personal opinion. If the bylaws and state law are silent on the topic then the delinquent board member can continue to serve. Sorry, but that's the way it is.
IMO, I don't believe board members should be allowed to continue to serve if they are delinquent and/or in violation of the gov docs. Board members should set a good example for the other members of the assn. If the bylaws and state law are silent then there is no legal reason to ask for the delinquent board member's resignation. The most they could do is to remove him/her from an officer position and have an "off-the-record" talk with him/her explaining their position. If the delinquent board member won't agree to resigning then there isn't much they can do except to continue to follow the collection policy as they would for any other delinquent member.
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MaryA1
Posts:0
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| 03/06/2010 10:54 AM |
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John,
That is not addressed in the AZ nonprofit corp act. In fact I took a look at the SC Act and didn't see it addressed in their either! Remember the Act is for corporations, not HOAs. Corporations do not have dues to pay and a director being in good standing just doesn't apply. At least that's my opinion. |
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JamesC
(Maryland)
Posts:282
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| 03/06/2010 11:25 AM |
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Mary:
You certainly don't have to apologize for anything you believe in. I ususlly just read the posts in this forum, but when I see something that touches so close to home, I do respond.
Our bylaws--ARTICLE VII Powers and Duties of the Board of Directors, Section 1 Powers (B)States:
The board has the power to: "Suspend the voting rights" and right to use of the recreational facilities of a member during any period in which such member shall be indefault in the payment of any assessement levied by the Association.
With all due respect to you, Roger, and Robert how is it justifiable to allow a member of the board to serve in a position judging others for "twelve years" when the bylaws says "your own" voting rights are supposed to be suspended?
For twelve years this board member has been permitted to vote on ever issue presented to the board affecting their community, decisions possibly negative ones against other homeowners, yet "their" voting rights should have been suspended.
I don't know if you are serving on a board, but if you are, and another board member were this far deliquent in your community, would you honestly allow them to continue? And if your bylaws read anything at all like ours, would you legally be allowed to have them continue on the board?
Jim
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LoriL1
(Florida)
Posts:51
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| 03/06/2010 11:28 AM |
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You're welcome, Mary! Like I said, I can't speak to Fl. Statute 720, but I am very familiar with Fl. Statute 718 because I've been on our Condo Assn. Board for a while now. I had just looked at this particular section of the Law because we are having a similar situation on our Board right now.
Lori |
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RichardP13
(California)
Posts:824
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| 03/06/2010 12:00 PM |
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| James beat me to the punch. I put up a post asking others on advice in changing our Bylaws. This will be one of the areas that we will address. If it doesn't go into the bylaws it should be put into the Rules and Regulations. To just say a board members can continue to serve without giving advice on what steps an association needs to take to correct this wrong was, well wrong. No board member should be above the law or the rules that board members govern by. |
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RogerB
(Colorado)
Posts:4645
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| 03/06/2010 12:09 PM |
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"how is it justifiable to allow a member of the board to serve in a position judging others for "twelve years" when the bylaws says "your own" voting rights are supposed to be suspended?"
I don't think members should ever allow this. But that is a question for those members who chose to elect a member to the Board who are not in good standing. IMO all Bylaws which do not state "all Board members shall be members in good standing" should be amended to include this requirement. Meanwhile, is it reasonable for a Developer to write Bylaws which protect their investment.
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RichardP13
(California)
Posts:824
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| 03/06/2010 12:18 PM |
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Roger
First, I wouldn't think the members know that board member was not paying his dues as it is confidential. I would blame the existing board for not saying something to the members in some form of communication.
Second, I realize that CCR's and Bylaws were written for the sole benefit of the developer. Our process will be to eliminate any and all mention of the developer and customize for the community. This is what should be done for most HOA, especially larger one. The docs that developers put out there are one size fits all and that create issues that came out here. |
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MaryA1
Posts:0
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| 03/06/2010 3:19 PM |
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Richard,
As you say, delinquencies are confidential, how would the board let the members know of the delinquent board member w/o breaking this rule of confidentiality?
Can you tell us what some of the provisions in your gov docs are that are just for the developer? |
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MaryA1
Posts:0
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| 03/06/2010 3:43 PM |
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James,
I said I was sorry that you thought I didn't give good advice; I was not apologizing for my opinion -- personal or otherwise. In my first msg I stated my opinion was based upon what is in the bylaws. And, in my last msg I stated my personal opinion. I stand by both and don't feel like I have to apologize for either.
Suspending the voting rights and the right to use the rec facilities doesn't mean relieving the delinquent board member from his/her position on the board. I believe most CCRs have that provision. BTW, voting rights means the voting rights of members not board members. I also believe most bylaws state a board member may be removed if delinquent in payment of assessments; however the OP did not say that was stated in her bylaws. I commented on what would apply if it was not. If not in the bylaws or in state law, therein lies the justification for allowing a delinquent board member to remain in office. Your position seems to be that the board should just write their own rules when they come across a situation that is not addressed in the gov. docs. Sorry, James, but that just is NOT the way to run an HOA. Whereas most boards do have the authority to enact new rules, those rules can only address a topic that is already addressed in the gov docs. If the bylaws do not say anything about board members serving while being delinquent then the BOD cannot just write a rule governing that topic. And, they cannot legally remove a board member just because they think it's the right thing to do -- they must have legal justification. I agree a board member should not be serving if they are continually delinquent; but what I believe and what the bylaws say -- or don't say, may not always be the same.
In answer to your last question: The provision you posted from your bylaws does NOT prevent a delinquent board member from serving on the board. The provision you should be looking for may be under "term of office - removal, disqualification and resignation of directors". Here's the provision from my bylaws: "No member shall continue to serve as director if more than 30 days delinquent in the payment of any assessments, and such delinquency shall automatically constitute a resignation by such delinquent director on the 31st day of the delinquency." This is probably the only reason the board may remove a board member from office; in any other instance removal must be voted on by the members of the assn. |
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MaryA1
Posts:0
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| 03/06/2010 3:53 PM |
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| Sorry Richard, if there is nothing in the bylaws about board members serving while delinquent, then the BOD cannot just adopt a rule addressing that topic. The BOD may have the authority to adopt rules but that only applies to topics covered in the existing CCRs; otherwise they would be amending the CCRs and that can only be done by the members. From my assn's CCRs: "The Rules. By a majority vote of the board, the assn may, from time to time adopt, amend and repeal rules and regulations to be known as the "Rules," with respect to all aspects of the assn's rights, activities and duties under this declaration." The key phrase is "under this declaration", meaning pertaining to only what is in the declaration. |
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CarolF
(Florida)
Posts:212
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| 03/06/2010 4:44 PM |
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If Erin would just tell us if it is a condo association this whole thing could be dealt with very quickly.
The FL legislature has seen fit to deal with it in 718. |
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RichardP13
(California)
Posts:824
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| 03/06/2010 8:34 PM |
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Posted By MaryA1 on 03/06/2010 3:19 PM
Richard,
Can you tell us what some of the provisions in your gov docs are that are just for the developer?
There are a number of references to the delarant/developer in the bylaws. References would include Class B Members, when the HOA is turned over to the members, payments by delarant if still applicable, membership rights, meeting of members when declarant still controlled. Essentially I re-typed the whole thing, searched for all words referencing declarant/developer and will have them either modified or eliminated. Two of the committee members are meeting tomorrow for breakfast to edit. |
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RichardP13
(California)
Posts:824
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| 03/06/2010 8:56 PM |
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Posted By MaryA1 on 03/06/2010 3:53 PM
Sorry Richard, if there is nothing in the bylaws about board members serving while delinquent, then the BOD cannot just adopt a rule addressing that topic. The BOD may have the authority to adopt rules but that only applies to topics covered in the existing CCRs; otherwise they would be amending the CCRs and that can only be done by the members. From my assn's CCRs: "The Rules. By a majority vote of the board, the assn may, from time to time adopt, amend and repeal rules and regulations to be known as the "Rules," with respect to all aspects of the assn's rights, activities and duties under this declaration." The key phrase is "under this declaration", meaning pertaining to only what is in the declaration.
Under Section 4.1 of our Bylaws it states that membership rights and privileges together with voting right may be suspended by the board for unpaid assessments. If the Bylaws state that only members can serve on the board, then the board member that was deli |
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RichardP13
(California)
Posts:824
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| 03/06/2010 9:00 PM |
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Posted By RichardP13 on 03/06/2010 8:56 PM Posted By MaryA1 on 03/06/2010 3:53 PM
Sorry Richard, if there is nothing in the bylaws about board members serving while delinquent, then the BOD cannot just adopt a rule addressing that topic. The BOD may have the authority to adopt rules but that only applies to topics covered in the existing CCRs; otherwise they would be amending the CCRs and that can only be done by the members. From my assn's CCRs: "The Rules. By a majority vote of the board, the assn may, from time to time adopt, amend and repeal rules and regulations to be known as the "Rules," with respect to all aspects of the assn's rights, activities and duties under this declaration." The key phrase is "under this declaration", meaning pertaining to only what is in the declaration. Under Section 4.1 of our Bylaws it states that membership rights and privileges together with voting right may be suspended by the board for unpaid assessments, as that board member has now lost his status as a member of the association. If the Bylaws state that only members can serve on the board, then the board member that was delinquent should be removed from the board automatically. |
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