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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 111548
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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We had 5 trustees that were elected in our condo association

Customer Question

We had 5 trustees that were elected in our condo association trust. One trustee just resigned and it was recorded at that resignation was just recorded at the registry of deeds. Our bylaws state that the owners have 30 days to appoint a replacement trustee and if they don't appoint one within thirty days then the current board can appoint who they want.
The owners want to appoint a person that is willing to serve - and our bylaws state we must obtain 51% of beneficial interest for appointment.
We are going to go around and get signatures - stating they want to appoint this new trustee to replace the trustee that resigned - and then once we have the 51% or more - we will have the appointed person sign a document stating
that x % of beneficial interest have appointed them - and then have that person sign the document and get that document notarized by that new trustee - and have it recorded at the registry of deeds
Do you see any problem with handling it that way? if it is handed to the board - they may contest it or hold off recording the document saying they need to check signatures or other information - and delay this because they want to
appoint a rubber stamp . so we don't want to hand it over to the board. After getting the signatures and
recording the document - we will give the board a copy - but we don't want them to stall the appointment - because after 30 days if the owners don't appoint someone - the board can appoint
Please advise
Thank you
Submitted: 4 months ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Does the bylaw say they have to be appointed and voted on at a special meeting?
Customer: replied 4 months ago.
no. Bylaws attached - please see ARTICLE III section 3.1
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
So your rules say you can appoint by written instrument, so getting signatures of a majority of the owners and having the appointed party sign agreeing to take the position and submit it to the board within the 30 days is sufficient to satisfy the bylaws for appointment. Even if the board does not file it in time or wants to challenge the signatures, the fact it is submitted within 30 days would make the appointment valid under your bylaws. Furthermore, you are not in violation of your bylaws if the position remains vacant because it provides for not less than 2 and not more than 9 trustees, so you are still within your bylaws until you appoint the replacement trustee.
If for some reason the board refuses to accept the writing in accordance with the bylaws, the members would then have to sue for a declaratory judgment in the superior court to get the court to order confirmation in accordance with the bylaws.
Customer: replied 4 months ago.
I don't understand why I have to submit it to the trustees that I know won't accept it... because they are hoping for the 30 days to expire so they can appoint another crooked puppet. If the person that resigned could submit his own resignation - why can't the person appointed submit and accept their appointment - have it notarized stating that - and filing it with the registry of deeds to make it binding.? That is the plan we have - - and we will also give a copy to the board - so they can file a new certificate to include all of the trustees -
The new trustee will submit - stating they accept being appointed by 51% of the beneficial interest
That's what our bylaws state - it is recognized when registered with the registry of deeds - and it does not state we have to submit to the current trustees
please advise
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
They have no choice but to accept the appointment and you have to submit it to them because they run the association. You must submit it to the board though. As I said if they refuse to accept, you have a right to take them to court to challenge them, but just because you "know they won't accept it" does not relieve you of the obligation of following each step so when you challenge them in court if you have to you can show the court you did everything right unlike the other trustees. You must submit it to the board and register it at the same time.
Many times in these cases people are right but end up losing when they do not take the time, and sometimes aggravation, to go through each step to make sure everything is done properly.
The resignation is different than appointment, so please do not equate them to be the same.
Customer: replied 4 months ago.
ok - confused by this.. you wrote.. " You must submit it to the board and register it at the same time."
So are you saying the new appointed trustee is to submit it to the board and also send it to the registry to be recorded also?
I don't want to turn this into a legal battle -
so if the new trustee follow the bylaws - that state only that the owners can appoint - but then it also states that the appointment takes place when it is registered - I don't see any location where it states it should be give to the current board. It aopears very clear that you get the % required from the owners - and then it has to be registered - but it does not say to give it to the current trustees.. and the owners will be appointing the NEW TRUSTEE.. What is the worst that could happen if the new trustee records the trustee appointment? Then if THEY want to fight it - they can... fight it
what is the worst that will happen by having the new trustee record their appointment by the owners?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
That is correct, you submit the verification of appointment by sufficient members and that is filed at the same time. So if the new trustee is appointed by the members in writing and files that appointment to record it at the same time sending it to the board, the board has to accept it or they would have to sue to challenge it.
Customer: replied 4 months ago.
ok I just want to confirm final. We will et signatures on paper stating they agree to appoint the new trustee - an when we get 51% or more - The newly appointed trustee writes up a document - stating they accept their appointment - and they sign it and get that notarized. I dont believe we need to submit all of the documents that have been signed by the owners because they dont submit them for elections.. but we will submit them as evidence to the board (A COPY ONLY)
From the time the new trustee is recorded - that person is an official trustee - correct and has the same authority as all of the other trustees?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
That is correct, you submit the proof that the new trustee has support of the majority and they have appointed him to the board and file the appointment to register it at the same time.
Customer: replied 4 months ago.
What would you charge to write up the appointment assignment that would be registered?
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
I am afraid that state bar associations would consider that representation and as a trade off for us providing this information service to consumers, the state bars forbid us from engaging in representation of anyone from this site. I appreciate you understanding that. You would need to write it yourself or get a local attorney near you to do so.
Customer: replied 4 months ago.
ok thank you - if anything else comes up - I will seek your advice
Take care
Customer: replied 4 months ago.
oh! one more question.. We don't need to have the owners' signatures notarized -correct...
if they want to challenge a signature - they can do so on their own - and ask the person - correct
the burden of proof would be on them
Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your reply.
You need to only have the final document notarized, every owner's signature does not have to be notarized.
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