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Irwin Law
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I am writing in response to a question asked of JustAnswer.coms

Resolved Question:

I am writing in response to a question asked of JustAnswer.com's Real Estate experts by one of the members of our HOA, Mr. D. I am providing this in its entirety, to assure I have everything laid out, and for a frame of reference for my follow up question.

Mr. D's original question, verbatim:
"My Annual Meeting just met on 5/20/2013 for the HOA owners. Los Angeles, CA. We have BY-LAWS that complies the owners must run as a MANAGER, TREASURER, AND SECRETARY in ROTATION. Failure to not serve allows a FEE. I was NOMINATED, SECONDARY, and I wanted to be MANAGER. The current 1 year time expired. The MANAGER refused to vacate. He was re-elected 9 votes. No PROXIES for some of his votes. I got 7 votes. He said he was elected. I told him his term ended. He cannot be the MANAGER. I read the BY-LAW'S clause. He said he won. I told the members there it is against our CC&R's and the BY-LAW's. I need to file a lawsuit to fight the BOARD and the MANAGER. I then left the meeting. What can I do.

A lawyer friend told me to sue in SMALL CLAIMS court. Tell the JUDGE I did win the election. I am an OWNER. I read our rules. Ask for monies against our Condo Board and our Manager. This is very stressful to me. Please advise me. My belief is I won the ELECTION."

And now, JustAnswer.com's response to Mr. D, verbatim:

"Thank you for your question. You are correct about winning the election because the CC&R, the By-laws, and an Rules and Regulations which are enacted from time to time, govern the actions of the HOA, the Board and the Officers as to what they can and cannot do. I know this sounds elementary, but it's very true, that if every member did what they wanted to do, there would be complete chaos.

I also agree that they have left you with no alternative, but to seek Court intervention in order to uphold the CC&R, By-Laws, etc. Although it would be easier, faster, and less costly to sue in Small Claims Court and have rights and obligations determined by that court, I researched a similar issue not too long ago, and found that Small Claims Court does not have subject-matter jurisdiction to determine your issue and it also lacks the authority to issue an Injunction to enjoin the person's conduct and prevent him from asserting victory in the election. The Superior Court in the County in which the property is located is the proper Court to determine the HOA and election issue."

My contribution to the conversation now:
I was at this annual meeting, as acting Secretary. I have read the CC&Rs and the By-Laws provided me when I became an owner in 2005. No changes or additional CC&Rs or By-Laws have been enumerated or provided since that time. The only reference to a term-limit I can find is in the By-Laws where it states in Article V, Board of Governors, 5.02 Number, Election, and Term of Office, (e) "Board Members serve a term of (1) year (or until successors are elected)". This is the By-Law set forth by Mr. D as his argument that the current manager could not be elected for another consecutive term. The Association debated this By-Law, and the majority drew the conclusion that Board Members do serve for one year, because we hold elections at the annual meeting every year. However, "OR until successors are elected" suggests that a current Board Member can be nominated, seconded, and elected AGAIN by the Association, to serve another consecutive year. "or until successors are elected"...not "or until someone else expresses an interest in holding the office." "or until successors are elected" requires a successor to WIN said election, which Mr. D did not. The Manager in contention, Mr. R, has already served a number of consecutive years. Mr. D was manager for 20+ consecutive years in days past. There seems to be no mention what-so-ever in the CC&Rs or the By-Laws to Association Members "rotating" through the offices of manager, secretary, or treasurer.

One proxy vote in favor of Mr. R was not obtained in written form, to my knowledge. All other votes for him were present in person at the meeting. Mr. D showed up with 3 proxies in writing, but how they were obtained is unknown to me, as two of the residents he was representing are not currently in the country, to my knowledge (though I absolutely could be mistaken). Regardless, this still brings the count to 8 to 7 in favor of Mr. R.

So, the majority of the Association determined that a challenger would have to win an election against an incumbent manager, should that manager be running again.

Does the information I contributed effect or change in any way the advice originally offered from JustAnswer.com's original assessment of the situation?

Thank you for your continued time and attention to this matter!
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Irwin Law replied 1 year ago.

Hello and thanks for submitting this question. I will try to assist in this discussion. First, the phrase "or until successors are elected" means that the individual continues to serve until the next election is held. Small (business) organizations often fail to hold regular formal elections so whoever has been elected continues to serve until the next election, if and when such is held. In your original question you say: We have BY-LAWS that complies (compels?) the owners must run as a MANAGER, TREASURER, AND SECRETARY in ROTATION. In the updated info you say: There seems to be no mention what-so-ever in the CC&Rs or the By-Laws to Association Members "rotating" through the offices of manager, secretary, or treasurer. The provision about running for jobs in rotation is somewhat ambiguous. It doesn't say that the member must vacate a current office to run for another or that there is a limit on the number of one year terms that a member can serve in one office consecutively. Those rules should have been spelled out in detail in the by-laws. Without that, a court is left to guess at what is meant by "run...in rotation". But you now say there is no such provision in the by-laws. In addition, the organization has a long history of permitting individuals to serve multiple successive terms in one office. Based on your updated information, I seriously doubt that a court would overturn the election of Mr . R.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 1 year ago.

Hi,


 


Thank you for your feedback.


 


To be absolutely clear, I did NOT submit the original question. Mr. D did. I am the Secretary of the Association following up on his question to JustAnswer because I felt it lacked important information...like what the By-Laws actually state.


 


I am a third party, not Mr. D or Mr. R.


 


You have said: "It doesn't say that the member must vacate a current office to run for another or that there is a limit on the number of one year terms that a member can serve in one office consecutively." This, I believe is the answer I'm really looking for, that the By-Laws do not explicitly state a term limit of one year, with no option for re-election into the same position regardless if the incumbent manager is running against someone else.


 


Am I correct in this interpretation?

Expert:  Irwin Law replied 1 year ago.

That sounds correct. Election rules in the by-laws in any organization must be spelled out in detail, especially things like limitation on terms and forced rotating of people to various offices, which is pretty weird to begin with. If there is no specific by-law provision for D to cite, then it's my feeling that R's re-election should stand up in court.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

 

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