HOAs should consult its bylaws to determine its power to remove a board member, which can be a complicated, expensive matter and may require consultation with the HOA’s attorney.
Removal of a member of a Homeowners Association (HOA) board is neither pleasant nor straightforward. On a purely human level, it can be difficult just because as an HOA member or fellow board member, it may involve a confrontation with one’s neighbors. It must be done according to each HOA’s individual articles of incorporation and bylaws as well as covenants, conditions, and restrictions (CC&Rs) of the association. It is critical that any such action also is taken within the parameters of your state’s laws to protect the association from potential actions on the part of the potentially ousted member.
Most important to the HOA when a board member is being considered for removal are the 1) reasons for removal and 2) the options available to both members of the HOA and to other current board officers when such action becomes necessary. The process involved when an HOA community member demands the removal of a board member versus a board member removing a fellow elected board member can be drastically different from HOA to HOA, as well as state to state. If a board member is court-appointed, a board may not remove that member.
Membership in an HOA board carries fiduciary obligations and responsibilities that behoove the member to act on behalf of the HOA and do no intentional harm. This requires that board members remain well informed, stay within the bounds of their authority, and ask questions when complicated HOA matters arise (directed to its management company or to legal counsel).
Many HOAs include director qualifications in their bylaws. These may consist of being an HOA member in good standing (including not being in litigation against the association), attending a specified minimum number of meetings, and not being a convicted felon. If a member demands removal because a board member is “unqualified,” he or she may be able to cite the HOA bylaws in this circumstance to back up the case. A recent case study with a board director who was convicted of a felony during his tenure on the board created a situation where the board, while wishing to replace him, was unable to vote him off; board members sought legal counsel, and they were required to instead obtain a resignation from him, either in person or by phone. The director being incarcerated for a serious crime made the board’s ability to get a resignation even more difficult. Eventually, the board was able to obtain a resignation letter, and the board director was replaced by calling a special election. Depending on bylaws, replacement can also be facilitated by the appointment of a substitute by existing board members.
When board members are unable to act in good faith, a member of the HOA at large may call a special board meeting to address the issues that affect the specific board member’s performance, or that member may discuss them at a regularly scheduled Board meeting. Problems that contribute to a potential recall or removal can be many, but the most common involve negligence, fraud, theft, disruption, or not being able to attend meetings. In some states, non-payment of association fees for a specified length of time can expedite removal from an HOA board member. If the board member’s negative behavior does not result in his or her discharge, removing a member from holding an official position may neutralize any conflicts that may occur.
The least disruptive method of removing a member from the board is simple, but it also requires a high level of engagement with other HOA members. That method is to allow the problem member’s term to expire. Most boards have one, two or three year terms. Before an election, HOA members must then become involved in nominating alternative candidates – or to volunteer themselves. Becoming part of the process brings with it not only an appreciation for the work (and learning curve) involved but also much-needed freshness (and new ideas) to a board. Rotation of board members is especially helpful for small HOAs in the event of an illness of a board member; there will always be an experienced member of the HOA at the ready to replace the compromised board member if the need should arise. Member engagement also makes board meeting interactions more productive for the HOA as members become invested in the future of the HOA community.
Although HOA boards are not generally able to remove HOA members, they may have the power to remove one of their officers. This can usually be done by a simple majority vote by members of the board. If however, the vote occurs in a special board meeting open to all HOA members, you may have difficulty removing the troublesome member if your association’s bylaws include cumulative voting. Cumulative voting is a system whereby, for example, if your HOA has 5 board members, during an election or recall, each HOA member has 5 votes that can be spread in any combination such as 5 votes for 1 member, 1 each spread across all 5 members, or any other combination in between (4 for 1 and 1 for one other, etc). Many HOAs no longer use this voting methodology specifically because of the difficulty it can create when a board member removal vote becomes necessary.
Each HOA must consult its bylaws to determine its power under these circumstances. Every state’s corporate statutes address restrictions involved (HOAs are usually nonprofit corporations formed in the state in which the condominium complex or development is located). Many states are very specific in naming the reasons for the removal of a board officer. In California, for example, an HOA board can only remove another officer if that officer is of unsound mind, committed a felony (after an election to the board), failure to attend meetings or lack of qualifications for board membership. Removing an HOA member can be a complicated and expensive matter and may require consultation with your HOA’s attorney, but the end result may prove beneficial to the efficient operation of your HOA.