Real Estate & Property Law

Does the Board Choose the Replacement for a Condo or HOA Director Who Resigns?

When a board position becomes vacant, some boards would prefer to appoint board members to fill them and others would prefer to wait for or hold a special election to fill the position. In any situation, the person who fills the position of the director whose position is vacated is in there for the term of the board member they replace, and not a new term (unless the Board waited until the election and the "exited" (is that a word?) director's term is up as of that election.

Usually, the board does have the authority to fill positions that are vacated, except when that happens through a recall election. In that case, the members elect the director to fill a position where the director was ousted by recall (and yes, a recalled director can generally run again in the subsequent election if they qualify under the association governing documents - unless the director was taken out of his or her position by a court order in which case I would want to know what the court order said before making any speculation).

Here is a question from a reader:

"Our restated Bylaws say that, ''vacancies on the Board created other than by removal without cause may be filled by a vote of a majority of all the remaining directors....''

On the other hand, at each election, we have one Alternate (with the next highest number of votes) in case an elected member cannot serve--for whatever reason. This has been the tradition, although it has rarely been used.

Our Bylaws say nothing about an ''Alternate.'' Is the board required to accept that person to replace a member who stepped down, or can they follow the Bylaws and simply vote for anyone they wish, as long as that person is approved by the majority of directors?"

I cannot give legal advice here, but will say that the Bylaws control the process, and what they say about appointments applies. If the Bylaws do not address the "alternates", then the Board probably is not required to appoint the alternate to a vacated position (again, I try not to be definitive without knowing all the facts); however it would seem to me that unless there is some good reason not to, they should respect the concept that having a person "in the box" or "on deck" so to speak is a good way of grooming someone for a board position, should the opportunity to appoint arise.

However, there may be some situations where the Alternate does not wish to serve, and in that case, the Board's choice has to come from other members.

I trust that the "Alternate" is not given voting rights (unless the documents address this). A board could I believe create a position for a person who would qualify to serve and call it an "alternate" or "board liasion" (which I think is a better term since the person is not actually an alternate director) to come to meetings and participate in board discussions so as to "groom them" for participation as a board member. However, if doing so creates the illusion of playing favorites, the practice should be looked at closely for a better way. Choosing these alternates by virtue of votes received in the election seems objectively a fair way to proceed.

However, I can tell you that I see and hear about all kinds of shenanigans and that is why I would withhold definitive judgment on a particular HOA situation.

Full post as published by California Condo & HOA Law on August 12, 2009 (boomark / email).