Can the Condo Board Fill a Vacancy on Their Own?

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S.J. writes:

Dear Mister Condo,

Can you please tell me if a Board of Directors can fill a spot on the board on their own, without unit owners voting, and where can I find the legal law stating this so I may argue this issue with the Board of Directors who think they own us.  Also, The Board of Directors decided we were going to get new siding on our 88 units. Unit Owners were told we had no say in it. They picked a contractor and told us we had to pay… and… that we can’t sell our house unless we pay them up front… whatever amount that may be. It is a one million dollar job. Help! Please!

Mister Condo replies:

S.J., sounds like your Board is causing you great concern. If you what you say is true I can’t say that I blame you for being upset and looking for what legal remedies you may have. Since you didn’t tell me what state you are from I am not sure where to direct you for state laws that might help you. Suffice it to say your condo documents are your first line of defense and I am certain they clearly outline the powers of the Board with regards to appointing directors to fill vacancies and their ability to enter into large capital projects like the one you have described with or without unit owners’ consent. Almost all condo documents address the Board’s ability to levy special assessments, either with or without a majority of unit owners voting to support the action.

Your statement that concerns me the most is “the Board of Directors who thinks they own us”. It is really quite the opposite. Boards are elected by the consensus of unit owners at the Annual Meeting. They are generally elected for a one or two year term of services. In some cases the term may be longer but almost all are subject to recall by the unit owners if they fail to perform their jobs adequately. Again, your by-laws clearly spell this out including the process by which Board members may be recalled and forced out of office. Of course, that means you need to have replacement volunteers ready and willing to serve as Directors to replace the outgoing volunteers.

My bigger question for you is how have these folks been elected and/or re-elected to serve on the Board if they are not acting in the best interest of the unit owners? Tackling a project like new siding installation requires a great deal of planning. Is this the first time you and your fellow unit owners are hearing about this project? Where is the money coming from? If it is a special assessment then there are very likely rules in your by-laws about how special assessments are determined and levied.

Your ability to sell your individual unit is affected by the special assessment in so much as it is not transferrable to an incoming unit owner. It is the responsibility of the unit owner of record when the assessment is levied. The Board cannot stop a unit owner from selling. However, they buyer is protected from inheriting the special assessment so it would have to be paid before the transaction was completed.

My advice to you and your fellow unit owners is to get much more involved in your association’s business dealings. Most states guarantee you the right to inspect the minutes from the meetings of the Board of Directors. All unit owners are allowed (and encouraged) to attend the Annual Meeting where two things happen. Directors are elected and the Annual Budget is adopted. The Board of Directors does not own you. They are, however, elected by the unit owners to conduct the business of the association. If that business includes purchasing siding and hiring a contractor they may be simply doing their duty as they see fit. They are your elected representatives and they are supposed to maintain, protect, and enhance the common elements of the association. If they are not doing so, you should vote them out of office and replace them with volunteers who will do a better job. However, if the Board needs to raise money to do the job they were elected to do, you can’t attack them just because they need to pass a special assessment to pay for that work. Most likely, the money that should have been saved to pay for such a project was not properly collected over many years, most likely in an effort to keep the common fees low. My guess is that your Board is simply doing the best they can with limited funds. All the best!

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