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Board vote after petition to remove Board

We submitted a petition for Board of Directors to be removed from the Board a few hours before an Open meeting where a homeowner appealed the 3 person ARC committee that cited both DGs and CCRs violations to their home plan that included 10 ft and 14 ft garage doors in our non RV community. The garages block the neighboring lots views in what we thought was a view protected community. 3 of the 4 Board members dismissed the ARC and they say that is final. The petition to remove contained 31% of homeowner votes (52 total votes). All who spoke prior to the Board vote expressed various concerns, repeated ARC findings and even stated they would not support a Board who voted to dismiss the ARC. Is the vote valid with the petition to remove received? Can this vote be overturned? Thank you

7 Responses

  1. dennisl

    Katkendall11,

    A petition is not a vote. Arizona law allows for the removal of any board member via a process that starts by a petition signed by 25% of the eligible voters in the community. Once the petition is submitted and the signatures validated, the board has 30 days to call a special meeting of the members for the purpose of voting to remove the specified board members. The notice for that meeting should identify ballot measures to remove each individual board member specified in the petition. The quorum for the special meeting is set at no more than 20% of the eligible voters that attend in person or submit absentee ballots. Each board member is either removed or retained by a majority of the votes received.

    If less than a majority of the board is removed, the remaining board members get to appoint replacements to fill the vacancies for the remainder of the terms of the removed board members. If a majority of the board is removed another special meeting of the members again needs to be called within 30 days to have the members elect the board members to fill the vacancies.

    It is important to note that this process can be applied with or without cause. The board needs to act in the best interest of the community as a whole at all times. This process is the ultimate power of the members of the community and needs to be used more if the boards in this state fail to uphold that responsibility.

    In helping communities across this state I have seen boards pull out all stops to quash and suppress the ability of the members to remove board members that act in their own interest. This is why we have SB-1412 introduced in the legislature this session to protect and ensure the homeowners fundamental rights to freedom of speech and assembly.

    As too your specific question what took place in your community did not legally remove the board but was only the first step toward that removal.

    Dennis

  2. Katkendall11

    Thank you for the quick reply. Thank you for advocating for the homeowner. Might a strategy be for homeowners to retain a lawyer? Ask lawyer to write a letter stating representation, understanding that a meeting to remove Board members will be taking place in 30 days, ask for a cease in building on lot until he can look at HOA documents from last 15 years etc. We are 6 mos from a Board election (this is our first year on our own and not declarant controlled). Yes, 15 years to build out under various states of bankrupt declarants and various other declarants. The relationship under declarant control seemed better than 6 mos of dealing with a tyranical in-fighting board. Lesson learned for all homeowners on choosing board members.

  3. dennisl

    Katkendall11,

    The period of declarant control in these communities is the most unamerican situation that exist in this country today, and is exempt from the protections of the constitution. We fought a revolution based on the principle of taxation without representation yet The HOA industry has created a situation where the same condition exist. You are subject to declarant controlled and appointed board taxing you assessments but you have no right to vote or have any representation in the governing board.

    Once the period of declarant control ends the board must be elected by the members and any appointed board member cannot continue to serve unless re-elected by the members. Far too many communities underestimate the transition from declarant control and association control and go into it unprepared relative to screening candidates and setting expectations for the board. and how they want the community run. Without that preparation you simply replace one tyrant with a group of tyrants. Which it appears from your questions to be your case.

    I’m not sure what you are suggesting with the attorney? You have absolutely no authority or cause for action to stop building on the property. The governing documents are the governing documents and while most declarants use illegal approaches to continue to alter those documents in their favor while they are in control without homeowner input, once you have transitions control only the super majority of the homeowners can change those documents.

    How many board members do you have and how many have their terms ending at the next annual meeting of the members?

    You’ve already submitted the signed petition to the board. They have 30 days to call a special meeting of the members to act on that recall action under the law. An attorney will not speed that up. If you are an HOA than the statute is ARS 33-1813. Just remember that if a board member is removed and his/her term expires in 6 months than the replacement will have to run again in 6 months to stay on the board.

    If the board fails to act on the petition than you can file a petition to the Dept. of Real Estate and have an administrative law judge force them to comply with the law.

    This is where you have to careful. if you remove a minority of the board you don’t get to decide who the replacements are the board does, and if they are as bad as you claim they will surely pick people that think like them or are their friends. You then end up in the same boat as you started in. Only if you remove a majority of the board do you get to elect the replacements. I never advise homeowners to pursue recall elections without clear candidates that will run for the vacancies that will be supportive of needs of the community and act accordingly.

    Even the best board members have to make difficult decisions, and those decisions will never make everyone happy. But that is not the roll of the board it is to act in the best interest of the community as a whole even if some people don’t like that decision.

    You clearly have the community already aligned in this effort, so approach it strategically and carefully. I worked with a community once to replace their entire board and developed and even trained the replacement board members that were then put in place. The one thing that I told them is to remember what it was like with the old board and to work everyday to not become what they worked so hard to remove. When I followed up with them a year later they were already starting to do what the old board was doing, but we had an opportunity to correct the issues and get the board back on the correct course.

    Power corrupts and absolute power corrupts absolutely. HOA boards have absolute power and even the best board members can and will be affected by that power.

    Dennis

  4. dennisl

    A couple more points to your original question. The board has the authority to appoint and remove any member of the ARC, at their discretion. They also have the duty to enforce the CC&R’s and community documents. If they act to remove the ARC members because the ARC simply was enforcing the requirements of the CC&R’s then that board failed in it’s duty to enforce the CC&R’s. What ever happened in your community is very much dependent on the actual language in the governing documents. From a legal standpoint if your governing documents do not restrict the height of garages or do not have any provisions that would support your contention that maintaining the views in the community is part of the covenants than the ARC may have exceeded it’s authority in denying the garage designs.

    Because you like the decision of the ARC does not mean that it is right, the CC&R’s and other governing documents determine if that decision is right or not. I cannot tell you how many court cases have been lost because people have not liked the decisions of the ARC or the board, even though the ARC or Board acted within their authority.

    But as I mentioned earlier the Board recall process is irrespective of whether you did or did not have cause for that recall.

    Dennis

  5. Katkendall11

    Thank you. I hope this is a case study for any community coming out of declarant control. In response to your question on Board positions, here are some additional facts:
    – 6 months to go for re-election of entire Board (hope they do little damage till then)
    – 5-7 seats in gov docs, first vote for Board was for 5 positions, 5 volunteers
    – less than 25% voted to confirm this board (a call to get community involvement)
    -1 resigned due to infighting and drama, none of them can get along and it is painful to observe–4 Board members now
    – 1 Board member heads ARC with 2 homeowners that were appointed by the President (careful to let the Tyrannical Pres pick them—still they do not like the work the ARC did, leaving the ARC unappreciated with the significant work put in)
    – ARC denied lot build on 7 DGs, 5 CCR and 1 community doc (main concern of homeowners is block of views, gov docs cite protection of community views, individual views and property value of neighboring lots in multiple places of the gov docs. Any build will block view of neighboring lot (still not built out) but an RV garage will definitely do this. Home builder does not own RV, wants to do this for resale. All homeowners who spoke expressed concern of overturn of ARC, slippery slope & very passionately prior to vote, greatest fear is the DGs, which were never changed by a declarant from original developer, are not being upheld for the 5 vacant non-declarant lots. Also concern that current homes won’t add garage if space allows.)
    -Petition to remove all members of Board had 31% vote. ByLaws state 2/3 vote needed (all can vote, not just those present at meeting) to remove them. To get that, we would have to bring new homeowners up to speed and we would need to involve declarant who still has voting rights for some 6 or so lots. Do not think this will happen, but goal was to educate homeowners on behavior of current Board). We have a team that work well together ready to step in if needed.
    -The goals with the petition was to give awareness to the lot appeal vote, and prep for the passing as we understood it would be a 3:1 vote, 1 ‘no’ being the Board member over the ARC. Petition was delivered prior to vote, so Board knew how much this meant to the community. The meeting did not explain that neighboring lots would have views preserved, our concerns were not addressed. They went straight from hearing those that got to speak (many more wanted to but ‘system’ was not working properly to take some off mute)–and 3 voted to over ride ARC. It was almost done in defiance of the homeowners, neighboring lot owners, and 3 ARC members….because they could. They had a lawyer present, who said nothing, and we were told their decision was final.
    – greater concern over secrecy of Board, allusive agenda just said 1) call to order, 2) lot appeal, 3) adjourn. When a few asked for ARC docs to see what was up, we were told in 10 days, which would be after the meeting. They hired a lawyer to enforce this, found they could take the 10 days, but probably should not, so they gave us all in the most unorganized fashion, causing a team 2 days to go through to be able to provide the community a summary.

    We have some good visibility here for those that want to see. Also to mention we have a very incompetent, ‘enforce to minimum standards’ community manager who has them seeking lawyer advice that in 6 mos exceeds expense of all 15 prior years. This new Board was never provided training, and they rely on the community manager, who is ineffective in even getting them to understand Exec Meetings (they hold one after each Board meeting). While under declarant control, he was chosen this Management Company from a list from AACM, so I really appreciate what I learned about AACM on your site!!

    Again, thanks for all you do!

  6. Charlotte Hazzard

    This is very helpful, hello everyone I am new and need guidance in my experience with my HOA of treatment. It’s not honest and I am glad that with people helping people. Nothing worse than knowing your HOA is after your home and only have one agenda. I have never been in violation yet I experience a Sheriff Sales on my home. Unbelievable with South Ranch II and this community if for the less fortunate yet we still pay our bills with honer. We need a new board to represent our scared neighborhood. Thanks for this website, Charlotte

    1. dennisl

      Charlotte,
      Welcome. Please know that your are not alone and I created this organization to help homeowners in this state understand how they can live from within these mini totalitarian governments. If you can provide me more details I’ll see what I can do to help. You can provide me the details on this website or by simply writing me at Azhoatruth@gmail.com.
      Dennis

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