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Subject: 2 Directors change positions without vote
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Author Messages
AugustinD


Posts:3647


05/14/2020 8:15 AM  
LisaD12, from experience, the probability is near 100% that a letter like the one I propose will cause the two directors to go through the roof with rage. They are a board majority. The manager and HOA attorney by law must take instruction from a board majority. If you send a letter like the one I suggested, you may be facing four hostile people. They have the legal authority to make your service on the board even more difficult.
MarkW18


Posts:1289


05/14/2020 10:37 AM  
Posted By AugustinD on 05/14/2020 8:15 AM
The manager and HOA attorney by law must take instruction from a board majority.


Really, please cite the evidence that proves this BS.
LisaD12
(Missouri)

Posts:21


05/28/2020 7:55 PM  
Are you asking me to site the evidence? I am not being challenging or aggressive. I wasn't sure if you were asking me or the person that responded to me?
MarkW18


Posts:1289


05/28/2020 8:35 PM  
Posted By LisaD12 on 05/28/2020 7:55 PM
Are you asking me to site the evidence? I am not being challenging or aggressive. I wasn't sure if you were asking me or the person that responded to me?



Asking Senor Augustin
LisaD12
(Missouri)

Posts:21


05/29/2020 8:35 AM  
The articles of incorporation do not say anything about notice of meetings.
LisaD12
(Missouri)

Posts:21


07/21/2020 7:44 PM  
Since our indentures saying that we "may" remove directors in a court in our county does this mean that there is an alternative as in a petition for a special meeting to vote to remove directors? Any help is appreciated.
AugustinD


Posts:3647


07/21/2020 7:51 PM  
Is your HOA a nonprofit corporation? If so, Missouri statute 355.346 gives the overview of how to remove directors via a vote of the membership. See https://revisor.mo.gov/main/OneSection.aspx?section=355.346&bid=19221&hl=
LisaD12
(Missouri)

Posts:21


07/22/2020 7:34 AM  
Yes, we are a non-profit corporation. I wasn't sure since our indentures have the paragraph stating they "may" be removed. I know that the Supreme Court ruled "may" to be optional. Thank you!
AugustinD


Posts:3647


07/22/2020 7:55 AM  
Posted By LisaD12 on 07/22/2020 7:34 AM
Yes, we are a non-profit corporation. I wasn't sure since our indentures have the paragraph stating they "may" be removed. I know that the Supreme Court ruled "may" to be optional. Thank you!
Missouri statute section 355.346 states in part: "1. The members may, without cause, remove one or more directors elected by them." I do not think the "may" in the above statute means what you thought (think) it means? Instead, it means the members have the right to remove a director (via a vote as explained in subsequent parts of section 355.346), but they are not required to exercise this right.
LisaD12
(Missouri)

Posts:21


07/22/2020 8:26 AM  
I apologize, I meant in our indentures. It say a board member may be removed in a court of the county....
AugustinD


Posts:3647


07/22/2020 8:41 AM  
Posted By LisaD12 on 07/22/2020 8:26 AM
I apologize, I meant in our indentures. It say a board member may be removed in a court of the county....
No apology necessary. I realize you meant your indentures. But I think your indentures are saying the same thing: The court has the right to remove a director, but the court is not required to do so.
LisaD12
(Missouri)

Posts:21


07/22/2020 9:29 AM  
That's the way I'm reading it! You have been a big help! I have my petition signed by 26 homeowners. We are a community of 232 homes. I am going to hand deliver the signed petition to the management company tomorrow.
JohnC46
(South Carolina)

Posts:9660


07/22/2020 10:21 AM  
Lisa

Generally to recall a BOD Member(s) it will require several steps:

1. Call for a Special Meeting by X number of owners. Your docs will say how many. Usually about 10%.

2. The purpose of the Special Meeting must be specifically stated such as remove Harry Smith and replace with Jane Jones, etc. It cannot be a general bytching session.

3. Typically a majority (51%) of all owners (I repeat all owners) must approve the change(s). Again, a majority of all owners, not just a majority of those at the meeting, must approve. Your docs will specify % needed.

Rarely are Recalls successful. They can be legally fought and held up in the courts for a long time. Secondly, there are generally not enough owners caring to participate as in vote.

The best way to replace BOD Members is to work to elect other candidates at the Annual Meeting. I suggest you get over being upset and pursue this path versus a recall.
JohnC46
(South Carolina)

Posts:9660


07/22/2020 10:23 AM  
Posted By JohnC46 on 07/22/2020 10:21 AM
Lisa

Generally to recall a BOD Member(s) it will require several steps:

1. Call for a Special Meeting by X number of owners. Your docs will say how many. Usually about 10%.

2. The purpose of the Special Meeting must be specifically stated such as remove Harry Smith and replace with Jane Jones, etc. It cannot be a general bytching session.

3. Typically a majority (51%) of all owners (I repeat all owners) must approve the change(s). Again, a majority of all owners, not just a majority of those at the meeting, must approve. Your docs will specify % needed.

Rarely are Recalls successful. They can be legally fought and held up in the courts for a long time. Secondly, there are generally not enough owners caring to participate as in vote.

The best way to replace BOD Members is to work to elect other candidates at the Annual Meeting. I suggest you get over being upset and pursue this path versus a recall.




ADD ON

With 232 homes (owners), 51% is 117 owners approving. Do you actually think you can get 117 to vote yes? Personally, I doubt it.
LisaD12
(Missouri)

Posts:21


07/22/2020 10:37 AM  
Thank you very much for your help!
AugustinD


Posts:3647


07/22/2020 10:49 AM  
Posted By JohnC46 on 07/22/2020 10:21 AM

3. Typically a majority (51%) of all owners (I repeat all owners) must approve the change(s). Again, a majority of all owners, not just a majority of those at the meeting, must approve. Your docs will specify % needed.


Missouri does not have a specific statute governing homeowners' associations. Also this is not a condominium. This leaves the governing documents and Missouri's nonprofit corporation statute. Missouri statute section 355.346 "Removal of Directors" is quite different from what JohnC46 posted above. From 355.346:

=== Start Quotation ===
355.346. Removal of directors. — 1. The members may, without cause, remove one or more directors elected by them.

  2. If a director is elected by a class, chapter or other organizational unit, or by region or other geographic grouping, the director may be removed only by the members of that class, chapter, unit or grouping.

  3. Except as provided in subsection 9 of this section, a director may be removed under subsection 1 of this section or subsection 2 of this section only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.

  4. If cumulative voting is authorized, a director may not be removed if the number of votes, or if the director was elected by a class, chapter, unit or grouping of members, the number of votes of that class, chapter, unit or grouping, sufficient to elect the director under cumulative voting is voted against the director's removal.

  5. A director elected by members may be removed by the members only at a meeting called for the purpose of removing the director and the meeting notice must state that the purpose, or one of the purposes, of the meeting is removal of the director.

  6. In computing whether a director is protected from removal under subsection 2, 3 or 4 of this section, it should be assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of that director's election.

  7. An entire board of directors may be removed under the provisions of subsections 1 to 5 of this section.

  8. A director elected by the board may be removed without cause by the vote of two-thirds of the directors then in office or such greater number as is set forth in the articles or bylaws; but a director elected by the board to fill the vacancy of a director elected by the members may be removed without cause by the members, but not the board.

  9. If, at the beginning of a director's term on the board, the articles or bylaws provide that the director may be removed for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors then in office vote for the removal.
=== End Quotation ===

LisaD12, what is the quorum requirement for the annual meeting where an election is held?

Under the Missouri nonprofit corporation act, quorum may be as little as 10% of the membership. If LisaD12's HOA's governing documents do not specify a quorum, then with 232 homes and each home having one vote, as little as 24 homes (just above 23.2 or the 10% requirement) could attend the meeting and vote on the recall. So far, it appears to me that as few as 13 homes voting for the recall may result in the director being lawfully recalled.

LisaD12 will have to dot every i and cross every t to be legally successful. This board is not likely to go without a fight. Be ready for court.
LisaD12
(Missouri)

Posts:21


07/22/2020 1:05 PM  
Thank you for clarification. Quorum is 10%. I don't know what to expect. These 2 board members have squandered the HOA's funds on frivolous lawsuits. They have done anything that they've wanted to do. They refuse to have a yearly board meeting. Homeowner's are demanding answers from them why they are squandering their money & why repairs aren't being done. It's common knowledge that I am against the lawsuits. Since each one has at one time or another appointed themselves president of the HOA we have not had a pool party with no answer as to where the money budgeted for the party went. It's just a big mess.
CathyA3
(Ohio)

Posts:1116


07/22/2020 2:36 PM  
I realize that these board members would probably be uncooperative, and Missouri laws may be different, but generally homeowners are entitled to see the financial records of their association. Someone who is reasonably skilled in reading this information could get a decent idea of where the money is going, or even pick up some hints of shenanigans.

If records are spotty or missing, that's a whole 'nother issue.

Personally, if I were dealing with the same thing in my association, I'd want to figure out first what sorts of messes I was likely to uncover before I try to chuck out the board. Records requests take a lot less effort up front and may be more informative.

No reason you can't do both, though...
JohnC46
(South Carolina)

Posts:9660


07/22/2020 3:28 PM  
Posted By CathyA3 on 07/22/2020 2:36 PM
I realize that these board members would probably be uncooperative, and Missouri laws may be different, but generally homeowners are entitled to see the financial records of their association. Someone who is reasonably skilled in reading this information could get a decent idea of where the money is going, or even pick up some hints of shenanigans.

If records are spotty or missing, that's a whole 'nother issue.

Personally, if I were dealing with the same thing in my association, I'd want to figure out first what sorts of messes I was likely to uncover before I try to chuck out the board. Records requests take a lot less effort up front and may be more informative.

No reason you can't do both, though...




I agree. A lot easier to try and get the financial infor versus a recall yet the threat of a recall might loosen them up.
LisaD12
(Missouri)

Posts:21


07/23/2020 7:11 PM  
Thank you for the guidance. While some things are made clear in Missouri Nonprofit Corporation Statues others are not so clear.

Since I am the secretary & we have a management company I'm guessing I give a copy to the board members that I'm trying to remove? When I give the paperwork to the management company to schedule the special meeting do I give the management company the date that I want the meeting?
Do I need to have a candidate named to take the place of the directors that I want replaced?
Again any feedback would be appreciated!Tyia
AugustinD


Posts:3647


07/23/2020 8:06 PM  
I would spend the money on an attorney to get exact instructions at this point.
CathyA3
(Ohio)

Posts:1116


07/24/2020 5:20 AM  
Posted By LisaD12 on 07/23/2020 7:11 PM
... snippage ...

Do I need to have a candidate named to take the place of the directors that I want replaced?
...



This is one of the places where the recall of directors can fall flat on its face. People can be all outraged about whatever is going on, but when you ask them to step up and take the place of the recalled directors .... ** crickets ** ....

And then the board may no longer have a quorum and can't legally conduct business, and you're left with begging, pleading or strong-arming people into volunteering. And what makes you so sure that these new people will do a better job than the ones you just booted out? Especially if they make it clear upfront that they don't want the job and are just doing it to fill a seat...?

With HOA stuff, it's always possible that the cure will be worse than the illness.

If you're going to go through the upheaval of replacing directors, you should plan for exactly what will happen at each step of the way, including where you want to be when the dust settles. AugustinD's suggestion of getting legal advice is a good one, especially if Missouri's laws aren't as detailed as those in some other states. The last thing you want is dueling lawsuits.


LisaD12
(Missouri)

Posts:21


07/24/2020 6:34 AM  
Thank you! I have actually been fortunate that several people have stepped up wanting to be on the board. I have brainstormed with several homeowners & possible candidates. It seems all but 1 person that I spoke to all have the same vision. The 1 that had a different vision would've been worse than what we have. We have a real estate attorney that lives in the subdivision. I will contact him today to see if he's willing to speak to me about it. Thanks for all of your help and advise!
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