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Recalling a Director – AZ statute vs HOA bylaws

Members of the association have an interest in recalling a Director from the board. The HOA bylaws state that recall requires majority vote by the members. However, AZ Statute 33-1813 succinctly maps out a recall process stating “Notwithstanding any provision of the declaration or bylaws to the contrary…”.

So for certainty sake, does AZ statute override the bylaws about needing majority vote by the members?

Yuke

7 Responses

  1. dennisl

    Yuke 17

    You are absolutely correct the statute supersedes any provision in the individual community governing documents. You need a petition signed by at least 25% of the membership to call for a special meeting to remove any individual or group of homeowners. The association has 30 day to call that special meeting. Irrespective of whatever your quorum requirements are for any meeting of the members the quorum for this specific meeting is 20% of the members either in person or via absentee ballot. A simple majority of the votes cast decides the outcome.

    Dennis

  2. yuke17

    Thanks for the confirmation. Didn’t want to start down the path only to realize it was a doomed journey from the start.

  3. yuke17

    Follow-up question… anyone know of any firms that specialize in facilitating director recalls? Want to ensure any attempts are legitimate and productive.

    Then the follow-up to the follow-up – if we hire someone to manage the recall, can we homeowners then sue the board to recover the cost of the recall?

    Thx

    1. dennisl

      Yoke17,
      You may be able to find an attorney that claims they can help you complete this recall, but that would be a total waste of money. The law is clear ARS 33-1813 for a planned community. The petition is to call for a special meeting of the member for the purpose of recalling any by individual name directors. While you can describe details of what you believe are justification for this recall you must absolutely remain totally factual and not assumptive or speculative. Never say any generalities like they stole money or misappropriated fund without absolute proof and indisputable facts. The fact is you can petition to remove a director without cause. You need to gather 25% of ligitimate members that are in good standing and eligible to vote in the community. Never stop at just 25% add insurance signatures. Do not word the petition to “remove the entire board” this will result in a ballot item of just that one shot at removing the entire board and anyone wishing to retain one board member has no choice but to vote to retain all board members. That is why you want to have the people vote to remove individual board members. Once you have the signatutes, present them to the board, never give the management company the originals and always keep a copy of anything that you provide the management company. The board then has 30 days to call the special meeting of the members to vote on the recall of the identified board members. Please remember that if less than a majority of the board is recalled then the board has the authority in most cases to simply appoint the replacement board members. If however a majority of the board is recalled the remaining board members must call a separate members meeting to elect the replacement board members.

      While not easy, simple organization and sharing the workload to gather the signatures door to door is very doable. Expect the board to do anything and everything in their power to discredit all of you as trouble makers including spreading lies about you, do not get into a pissing battle with the board you cannot compete with their ability to get their message out no matter how false to the entire population of community. Keep the high ground and it is absolutely you right to call for this recall and in fact the only real way for the members of the community to regulate the actions of the board. If the board was more open to the issues and concern of the community they would not be subject to a recall vote.

      If you hire someone to organize the recall for you that is totally on your dime and not subject to restitution by the association. The same way the cost of calling for and holding a members meeting is not able to be charged to the homeowners that lead the petition or signed the petition by the board after the fact.

      Dennis

  4. Name*

    Another follow up question:

    25% of property owners in good standing to remove a board member.
    Question – If a property owner in good standing has 5 lots in which they pay annual assessments
    on each lot, each lot gets a vote for the election.
    Does each lot count as part of the 25% to remove a board member?

    Margaret

    1. dennisl

      Margaret.
      First to be clear the 25% required is relative to petitioning to call a special meeting of the members for the purpose of recalling one or more individual board members. With that petition signed by 25% of the members the board must call the special meeting of the members within 30 days. At that special meeting the quorum for that specific meeting is set by law as 20% of the voting members in person or by absentee ballot, then a simple majority of those voting on the issue decided the outcome. so at the absolute minimum 10% of the voting members plus one can remove a board member.

      To your specific question that one individual’s signature represents the vote for the 5 properties that they own. That single person represents 5 lots and should sign the petition stating that, for example John Doe lots 5,6,7,8,and 9.

      Dennis

  5. Name*

    Thank you Dennis for your reply.
    To make sure I have this correctly we need to do the following:
    1) Get 25% of the lots to sign the petition.
    2) The board must call a special meeting of the members within 30 days after a copy of the petition is handed over to them.
    3) At the special meeting, 20% of the property owners which includes the board members must be there.
    4) Then it takes 10% of the property owners at the meeting to remove one or more board members.

    I hope I understand this correctly. We have got 2 board members who is making everyone live here miserable and we are talking about having them removed. I want to pass on this info so it is done correctly. So we have 135 lots, we need at least 34 signatures to sign the petition, then on to the above 2,3 and 4.

    Thank You
    Margaret

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