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Ask the HOA Expert: The Process To Handle A Recall Petition

Written by on Tuesday, 20 December 2016 9:16 am
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Question: I serve on our HOA board. Certain members have circulated a recall petition against two of the directors and obtained the required number of signatures based on our bylaws. The next board meeting is coming up soon and the petitioners want the recall resolved then. What is the normal process to handle a recall?

Answer: Normally, a recall would be handled at a special meeting called for that purpose. As such, it needs to be noticed to all owners well in advance so all have a chance to attend. This should not be handled at a normal board meeting since the topic is likely to take quite a while unless the target directors yield to the pressure and step down early.

Question: The board of our HOA meets four times a year. We are largely a vacation community with only a few permanent residents. Between board meetings, the board president makes all the decisions as long as they are in line with previous board decisions, the budget and governing documents. The president has been consulting other directors by email concerning certain decisions and calling for motions and votes by email. Doesn't this constitute a board meeting and circumvent the open meeting concept?

Answer: Yes, making board decisions by email constitutes a board meeting. If the bylaws do not prohibit it, the board could possibly enact a resolution which allows doing business this way but it still would probably be construed to be a closed meeting. An alternative to email is to hold teleconferences. There are free services available including freeconferencecalling.com. The notice of a board teleconference could be emailed to all members so any that wanted to attend could. Consult with a knowledgeable HOA attorney in your state to make sure this is allowable.

Question: Our governing documents restrict units to "Single Family" occupancy. Our board interprets this to mean "related" individuals. According to this interpretation, a live-in girlfriend, boyfriend or care giver would all be in violation.

Answer: What gets written into governing documents often sounds reasonable but is unworkable for practical reasons. The board is simply not positioned to research or enforce this kind of standard and shouldn't because it assumes that related persons are superior to non-related persons. "Related" generally means by blood or marriage. So, for the board to enforce this rule, all occupants must show convincing records (like birth or marriage certificates) that prove the relationship. Good luck. Asking isn't getting. And just try to evict an owner.

Just because the governing documents say something doesn't makes it reasonable or enforceable. The board has the right to make a judgment on this and choose how it's interpreted. Rather than some arbitrary standard like "single family" the board should focus on behavior. If either owners, renters, married or singles are violating HOA rules, they should all be treated the same. It is the behavior that is at issue, not family status.

Question: A homeowner who recently broke her arm wants the HOA to install and pay for a second handrail on the staircase to her unit. She has an equilibrium problem. Is the HOA responsible to install special equipment for residents who are physically challenged? Several of the owners in our complex are seniors and have physical challenges.

Answer: The HOA is not responsible for or required to install special equipment but the board should make "reasonable accommodations" by allowing those that request it to do so at their own cost. The installation should be professional and not detract from the curb appeal. The board can also require the unit owner to remove the installation when it is no longer needed.

That said, if a majority of owners are in favor of installing ramps, handrails and the like, there is nothing wrong with installing them. HOAs can have anything the majority are willing to pay for.

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  About the author, Richard Thompson

Individual news stories are based upon the opinions of the writer and does not reflect the opinion of Realty Times.