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Subject: Legal Question Property Manager Resigns
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MikeD18
(Arizona)

Posts:10


01/05/2021 4:37 PM  
Need Help ASAP Please!

So our president of our COA is not a team player and has caused our Property Manager to submit his resignation via email effective in 30 days. After receiving this the President of the board sent out email to all owners of association telling them that property manager has resigned. After other board members and owners contacted property manager they convinced him to withdrawl his resignation, which he did. The President whom wants him gone is now saying that because of his resignation letter his contract is null and void after the 30 days and he needs to produce a new contract to be considered. It is the rest of the boards position that his contract is still good as it would automatically have been renewed on January 1st per our contract if he had not sent resignation letter.
So question is if property manager resigns then rescinds his resignation is a new contract required. Any  advice would be greatly appreciated!!!
TimB4
(Virginia)

Posts:17180


01/05/2021 4:49 PM  
This would be a board decision.

The manager resigned.

The Board needs to vote if they will accept the rescindion of that resignation.
The President is only one vote on the Board.

MikeD18
(Arizona)

Posts:10


01/05/2021 5:29 PM  
That is what I said but she insist that there was no need for board to accept his resignation and no need for vote to accept his withdrawal of resignation. She has a owner whom is a lawyer agreeing with her and says that unless I have a lawyer with written proof otherwise that his contract is no good and she says he needs to produce new contract to be voted on. Is there law that would back up my stance that no new contract would be required?
JohnC77
(Washington)

Posts:434


01/05/2021 6:26 PM  
The board can vote to not accept his resignation and business can go on as before.

Suggestion for the future, you might consider a change in officer positions.
AugustinD


Posts:4828


01/05/2021 6:31 PM  
Posted By MikeD18 on 01/05/2021 5:29 PM
That is what I said but she insist that there was no need for board to accept his resignation and no need for vote to accept his withdrawal of resignation. She has a owner whom is a lawyer agreeing with her and says that unless I have a lawyer with written proof otherwise that his contract is no good and she says he needs to produce new contract to be voted on. Is there law that would back up my stance that no new contract would be required?
How come your Board won't simply take a vote that refuses to accept the President's position?

If your board is a bunch of candy a--es, then said candy a--es are the bigger problem by far.

An attorney opining on whatever has no power compared to duly elected directors on a board.
MikeD18
(Arizona)

Posts:10


01/05/2021 6:34 PM  
Point taken.
MikeD18
(Arizona)

Posts:10


01/05/2021 6:38 PM  
Unfortunately it's it's a 4 person board. Vice President hasn't been involved in anything but will follow Presidents lead which will lead to a 2 to 2 vote.
AugustinD


Posts:4828


01/05/2021 6:58 PM  
Posted By MikeD18 on 01/05/2021 4:37 PM
It is the rest of the boards position that his contract is still good as it would automatically have been renewed on January 1st per our contract if he had not sent resignation letter.
Unfortunately it's it's a 4 person board. Vice President hasn't been involved in anything but will follow Presidents lead which will lead to a 2 to 2 vote.
Grrr.
So question is if property manager resigns then rescinds his resignation is a new contract required. Any  advice would be greatly appreciated!!!
With the vote at 2-2, the rescindation is not possible. The resignation stands. The board is to vote to contract either with the recently resigned PM or a new PM.
JohnC77
(Washington)

Posts:434


01/05/2021 6:59 PM  
My suggestion, start looking for a new management company and when it comes to a vote, make it a 2-2 ties and back the president into a corner.
MikeD18
(Arizona)

Posts:10


01/05/2021 7:03 PM  
Thank You
NpS
(Pennsylvania)

Posts:4005


01/05/2021 8:22 PM  
Where in the contract does it say that a resignation is effective immediately upon receipt by the Association? I doubt that it does.

Agree with those who say that the resignation is only valid upon acceptance by the Association. If there was no formal acknowledgement to the manager, then the manage should be able to rescind.

IMO, if the Association is deadlocked, then they can neither accept nor reject the resignation and they can neither accept nor reject the reversal.

Status quo prior to resignation should be maintained.

I'm sure that you can find a lawyer who will support this view. The opinion of a "mysterious lawyer friend" is worth nothing.


Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:4828


01/05/2021 8:55 PM  
Posted By NpS on 01/05/2021 8:22 PM
Agree with those who say that the resignation is only valid upon acceptance by the Association.
I am not aware of any general rule of law that says a resignation is valid only when the supervisor(s) accepts (accept) it. Maybe in the movies once in awhile we see some actor playing the President rejecting an underling's resignation.

Nor does it make sense that someone who wants to quit cannot do so until her or his superiors say so.

Most importantly to me, the OP has indicated the manager was on contract. The manager is not so much resigning as terminating the contract.
JohnC77
(Washington)

Posts:434


01/05/2021 8:59 PM  
The manager may have resigned, but it is not to say the management did and terminated their contract. I don't have a resignation clause in my contracts.
NpS
(Pennsylvania)

Posts:4005


01/05/2021 9:32 PM  
Posted By AugustinD on 01/05/2021 8:55 PM
Posted By NpS on 01/05/2021 8:22 PM
Agree with those who say that the resignation is only valid upon acceptance by the Association.
I am not aware of any general rule of law that says a resignation is valid only when the supervisor(s) accepts (accept) it. Maybe in the movies once in awhile we see some actor playing the President rejecting an underling's resignation.

Nor does it make sense that someone who wants to quit cannot do so until her or his superiors say so.

Most importantly to me, the OP has indicated the manager was on contract. The manager is not so much resigning as terminating the contract.




Not what I am getting at.

The specific language of the contract rules. We don't know what that is. But most contracts of this type merely state where termination/resignation notice must be delivered, what the allowed basis for ending the relationship is, and how much prior notice must be given. (Assuming this is a management company relationship rather than an employment agreement, but even in that case the specific language rules.) In this particular case, I doubt that this particular contract is explicit on what would happen in the event of a recission and reversal by one of the parties. Possibly the contract talks to this particular circumstance, but highly unlikely.

That said, the interpretation of a contract that lacks specific language on a particular issue will depend on the intent of the parties. Lawyers can argue both sides and they do.

I do not understand your example - since we are not talking about someone being forced to continue working. Instead, we are talking about someone who has agreed to stay on.

At it's core, this is not acceptance/rejection IMO. It is renegotiation, which happens all the time in ongoing working relationships.

Here, the question is whether a person can reverse a prior termination notice after renegotiations and decide to stay on. I see no reason why a wholly new contract must be established no matter what the circumstances. But as I said earlier, that's what lawyers get paid to argue for and against.

Sikubali jukumu. Read all posts at your own risk.
GenoS
(Florida)

Posts:4242


01/05/2021 9:35 PM  
How does a contractor "resign" exactly?
JohnC77
(Washington)

Posts:434


01/05/2021 9:58 PM  
Who resigned, the manager or the management company. It makes a world of difference.
MikeD18
(Arizona)

Posts:10


01/05/2021 10:00 PM  
We have a broker whom is our property manager, one man operation we are a very small mixed 26 unit property.
JohnC77
(Washington)

Posts:434


01/05/2021 10:08 PM  
Got it.
MikeD18
(Arizona)

Posts:10


01/05/2021 10:21 PM  
Per contract manager can resign with 30 days notice for any reason. He was fed up after being bombarded by multiple daily several page emails of questions, and questions about how financial accounts were in brokers trust account not in association name. He resigns but a couple board members with help of several owners get him to agree to rescind his resignation letter and stay. President announced to all owners property manager resigned. This was done without any discussion by board. Then he withdrawls his resignation but president says the second he resigned his contract is no longer valid and need to be voted for again and ofcourse she wants to change the contract. It's my position that just because he quit it doesn't mean his contract is automatically void. It's a situation that needs to be looked at by the board and decided, it's not automatic! Thoughts???
MikeD18
(Arizona)

Posts:10


01/05/2021 10:21 PM  
Per contract manager can resign with 30 days notice for any reason. He was fed up after being bombarded by multiple daily several page emails of questions, and questions about how financial accounts were in brokers trust account not in association name. He resigns but a couple board members with help of several owners get him to agree to rescind his resignation letter and stay. President announced to all owners property manager resigned. This was done without any discussion by board. Then he withdrawls his resignation but president says the second he resigned his contract is no longer valid and need to be voted for again and ofcourse she wants to change the contract. It's my position that just because he quit it doesn't mean his contract is automatically void. It's a situation that needs to be looked at by the board and decided, it's not automatic! Thoughts???
NpS
(Pennsylvania)

Posts:4005


01/05/2021 10:33 PM  
Posted By MikeD18 on 01/05/2021 10:00 PM
We have a broker whom is our property manager, one man operation we are a very small mixed 26 unit property.



Is your contract with him as an individual or with the company that he owns?
Does he own his own place of business and use his own office equipment, or do you provide space and equipment?

Sikubali jukumu. Read all posts at your own risk.
MikeD18
(Arizona)

Posts:10


01/05/2021 10:36 PM  
The contract is with his company and he has his own office. We are just one of the properties he manages for his company.
NpS
(Pennsylvania)

Posts:4005


01/05/2021 10:41 PM  
Posted By MikeD18 on 01/05/2021 10:36 PM
The contract is with his company and he has his own office. We are just one of the properties he manages for his company.



Ok. So it's a true contractor relationship and not an employment relationship.

Is there a clause in the contract that talks about early termination? What does it say?

Sikubali jukumu. Read all posts at your own risk.
MikeD18
(Arizona)

Posts:10


01/05/2021 10:54 PM  
There is no early termination clause.
NpS
(Pennsylvania)

Posts:4005


01/05/2021 11:19 PM  
Posted By NpS on 01/05/2021 10:41 PM
Posted By MikeD18 on 01/05/2021 10:36 PM
The contract is with his company and he has his own office. We are just one of the properties he manages for his company.



Ok. So it's a true contractor relationship and not an employment relationship.

Is there a clause in the contract that talks about early termination? What does it say?




Oops. See that you you already answered my question. He can quit on 30 days notice with or without cause .

I see no reason why, after dialog with members of your Association, manager can't withdraw his resignation without affecting the original contract.

Under general contract law of "offer and acceptance", there is a strong argument that an offer withdrawn before acceptance by the other side is no longer on the table - and the other party cannot force acceptance of the withdrawn offer. Return to prior status quo makes sense under the circumstances.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:4828


01/06/2021 6:28 AM  
Posted By NpS on 01/05/2021 9:32 PM
That said, the interpretation of a contract that lacks specific language on a particular issue will depend on the intent of the parties. Lawyers can argue both sides and they do.
The "interpretation" could depend on many things, including the absence of anything whatsoever in the contract addressing the issue in dispute.
AugustinD


Posts:4828


01/06/2021 6:31 AM  
Posted By MikeD18 on 01/05/2021 10:00 PM
We have a broker whom is our property manager, one man operation we are a very small mixed 26 unit property.
It's not "whom" it's "who."
AugustinD


Posts:4828


01/06/2021 6:34 AM  
Posted By NpS on 01/05/2021 11:19 PM
Oops. See that you you already answered my question. He can quit on 30 days notice with or without cause .

I see no reason why, after dialog with members of your Association, manager can't withdraw his resignation without affecting the original contract.

Under general contract law of "offer and acceptance", there is a strong argument that an offer withdrawn before acceptance by the other side is no longer on the table - and the other party cannot force acceptance of the withdrawn offer. Return to prior status quo makes sense under the circumstances.
A resignation is not an offer.
AugustinD


Posts:4828


01/06/2021 6:39 AM  
Posted By MikeD18 on 01/05/2021 10:21 PM
Per contract manager can resign with 30 days notice for any reason. He was fed up after being bombarded by multiple daily several page emails of questions, and questions about how financial accounts were in brokers trust account not in association name. He resigns but a couple board members with help of several owners get him to agree to rescind his resignation letter and stay.
These board members were out of line. The issues here should have been addressed in an open board meeting.
Posted By MikeD18 on 01/05/2021 10:21 PM

President announced to all owners property manager resigned.
For good or bad, I think this might have been appropriate. Owners knowing that they cannot go to the property manager for xyz reason is important. Until at least the Board meets for discussion, the President is correct that the PM's contract was terminated, period, no ifs ands or buts.
Posted By MikeD18 on 01/05/2021 10:21 PMWhat's your reasoning? Does the contract say more about what happens when 'per contract manager resign with 30 days notice... '?
NpS
(Pennsylvania)

Posts:4005


01/06/2021 6:55 AM  
Posted By AugustinD on 01/06/2021 6:28 AM
Posted By NpS on 01/05/2021 9:32 PM
That said, the interpretation of a contract that lacks specific language on a particular issue will depend on the intent of the parties. Lawyers can argue both sides and they do.
The "interpretation" could depend on many things, including the absence of anything whatsoever in the contract addressing the issue in dispute.



Correctamundo. My assessments rely on the info that Mike provided. There may be other perspectives that I am unaware of. I am not saying that I am correct in my thinking, only that a strong legal argument can be made along the lines that I proposed.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:4828


01/06/2021 6:58 AM  
Posted By NpS on 01/06/2021 6:55 AM
Posted By AugustinD on 01/06/2021 6:28 AM
Posted By NpS on 01/05/2021 9:32 PM
That said, the interpretation of a contract that lacks specific language on a particular issue will depend on the intent of the parties. Lawyers can argue both sides and they do.
The "interpretation" could depend on many things, including the absence of anything whatsoever in the contract addressing the issue in dispute.



Correctamundo. My assessments rely on the info that Mike provided. There may be other perspectives that I am unaware of. I am not saying that I am correct in my thinking, only that a strong legal argument can be made along the lines that I proposed.
Respectfully, I think you are going down paths that are n/a.
NpS
(Pennsylvania)

Posts:4005


01/06/2021 7:12 AM  
Posted By AugustinD on 01/06/2021 6:34 AM
Posted By NpS on 01/05/2021 11:19 PM
Oops. See that you you already answered my question. He can quit on 30 days notice with or without cause .

I see no reason why, after dialog with members of your Association, manager can't withdraw his resignation without affecting the original contract.

Under general contract law of "offer and acceptance", there is a strong argument that an offer withdrawn before acceptance by the other side is no longer on the table - and the other party cannot force acceptance of the withdrawn offer. Return to prior status quo makes sense under the circumstances.
A resignation is not an offer.



Yeah. I probably took a short-cut there. But the legal framework in this area can get rather complex. The essence of what I am saying is that unless there are unusual circumstances (which I don't see in Mike's description), a person can reverse positions without penalty if the reversal is timely and the other side does not take any action that is detrimental or dependent on the original withdrawal. Kind of like no harm / no foul. The law of contracts does take those things into consideration.

Also something I consider very important is the fact that Association members reached out to the manager in an attempt to get the manager to reverse his position - which he ultimately did. So it's not as if he quit, and the Association said ok fine, we accept your resignation. They asked him to stay. From here, we could go on to discuss legal theories about implied authority, but there isn't enough info provided and I don't think we should be doing a lot of guessing.

I don't want to take this much further because, the "intent" of the parties might not be immediately evident to someone who has limited access to a fuller picture on the perspectives of the various parties. And that's the position that we, as members of this forum, are in.


Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:4005


01/06/2021 7:30 AM  
Posted By AugustinD on 01/06/2021 6:58 AM
Respectfully, I think you are going down paths that are n/a.


Not surprised.

I think you do an excellent job of researching hard and fast stuff, and you present it well.
As for me, I don't think everything is rule-based. I'm not saying it shouldn't be. I'm just saying that in the real world, hard and fast rules are only part of the story.

Relationships and interactions among individuals or organizations are my primary focus, even when the hard and fast stuff isn't fully adhered to. Sometimes I think that transactional thinking is most appropriate. In Mike's case, I think that relational thinking holds priority.

Mike's objective is to preserve a pre-existing relationship. Yet, I see limitations in Mike's knowledge of contract law. So I am offering him a few nudges in a direction that he may want to explore more fully.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:4828


01/06/2021 7:33 AM  
Posted By NpS on 01/06/2021 7:12 AM
Also something I consider very important is the fact that Association members reached out to the manager in an attempt to get the manager to reverse his position - which he ultimately did. So it's not as if he quit, and the Association said ok fine, we accept your resignation. They asked him to stay.
-- Your premise appears to be that a resignation needs to be accepted before the resignation is valid. I disagree. The way you want things, the HOA cannot be sure one way or another whether the manager is still working for the HOA or not. This is a dangerous position in which to be. For example, the Board does not know whether the manager is taking calls from vendors and members or not.

-- Who is this "they"? Without a formal board vote, and under the law, the resignation stands.

-- This forum is for everyone. Respectfully, suffice it to say I disagree with like everything you are posting here. I trust the OP to ask clarifying questions and do what he will with the posts here.
AugustinD


Posts:4828


01/06/2021 7:37 AM  
Posted By NpS on 01/06/2021 7:30 AM

As for me, I don't think everything is rule-based. I'm not saying it shouldn't be. I'm just saying that in the real world, hard and fast rules are only part of the story.
I have no objection if the Board wishes to meet with this manager and declare, "A board majority wishes you to continue as manager. If you wish to rescind your resignation, just say the word and the majority will accept your rescindation (rescission?). But until then, this HOA should proceed on the assumption it has no manager and inform the manager of exactly where he stands (namely, he's not the manager).
FloridaC1
(Florida)

Posts:14


01/06/2021 8:30 AM  
This is a legal question and requires interpretation from the Association attorney for all terms and purposes.
SueW6
(Michigan)

Posts:799


01/09/2021 12:04 PM  
The lawyer will probably say that it’s a parliamentary procedure issue. If you follow Roberts Rule of order then the resignation is official when the board officially accepts it at a duly called meeting. One person doesn’t have the right to declare the validity of a resignation at this level ( corporation)
AugustinD


Posts:4828


01/09/2021 12:17 PM  
Posted By SueW6 on 01/09/2021 12:04 PM
If you follow Roberts Rule of order then the resignation is official when the board officially accepts it at a duly called meeting.
Can you cite the applicable Roberts Rule from https://robertsrules.org/rror--00.htm ?

By my reading, Robert's Rules addresses only resignations of directors and officers. Robert's Rules does speak to Board actions (via motion, seconding the motion, discussion and voting on the motion). But the resignation itself is not a board action. It is an action of the manager. The manager is not bound by Robert's Rules.

Unless the contract says the manager may not resign unless the board accepts his/her resignation, then the manager does not have to wait for an acceptance by the Board.
JohnC77
(Washington)

Posts:434


01/09/2021 12:38 PM  
Unless the Association's Board meetings have to be conducted using some form of parliamentary procedure then the point is not relevant. As a general rule, Member meeting have to have some form of parliamentary procedure to be conducted by.

If the manager feels it time to part company, they are going to do so. If the Board wants to h=keep them, that is a Board decision. But, I am guessing this is not a one-time event, it has been building because or the action of one, or the inactions of others.
NpS
(Pennsylvania)

Posts:4005


01/12/2021 7:12 PM  
For those of you who are not fully enamored of Robert's Rules, I offer a different perspective.

From what I've seen, very few Declarations and Bylaws actually require Roberts. Most often, it's a choice of the Board to follow Roberts or any other set of parliamentary rules, like Martha's Rules of Order (created a couple of centuries after Roberts) and others. And some organizing docs I've seen have no formally recognized set of rules identified.

Personally, I have a preference for Susskind's Consensus Building Approach (CBA). I participated in some of his meetings around 20 years ago, and found that the approach transformed my thinking. Getting through the meeting is not the same as getting consensus and followthrough.

Quick read if interested:

https://spectrum.mit.edu/summer-2007/breaking-roberts-rules/





Sikubali jukumu. Read all posts at your own risk.
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