S.M. from Virginia writes:
Dear Mister Condo,
We are a small (153 unit) condo community in Northern Virginia. Our annual meeting is coming up and I believe there are 3 seats open on the board: 1 expiring and 2 appointees. I would like to know if we are interpreting our bylaw correctly.
“Vacancies on the Board of Directors caused by any reason other than the removal of a Director by a vote of the Unit Owner’s Association shall be filled by a vote of a majority of the remaining directors at a special meeting of the Board of Directors held for that purpose promptly after the occurrence of any such vacancy, even though the directors present at such meeting may constitute less than a quorum, and each person so elected shall be a member of the Board of Directors for the remainder of the term of the member so removed and until a successor shall be elected at the next annual meeting of the Unit Owner’s Association, provided, however, that the vacancy of any Director designated by the Declarant pursuant to a right of the Declarant to make such designation shall be filled by the Declarant.”
Also, we are incorporated under the Virginia Nonstock Corporation Act and it states that:
13.1-862. Vacancy on board of directors.
Unless the articles of incorporation provide otherwise, if a vacancy occurs on the board of directors, including a vacancy resulting from an increase:
The members may fill the vacancy;
The board of directors may fill the vacancy; or
If the directors remaining in office constitute fewer than a quorum of the board, they may fill the vacancy by the affirmative vote of a majority of the directors remaining in office.
Unless the articles of incorporation provide otherwise, if the vacant office was held by a director elected by a voting group of members, only the members of that voting group are entitled to vote to fill the vacancy if it is filled by the members.
A vacancy that will occur at a specific later date, by reason of a resignation effective at a later date under subsection B of 13.1-859 or otherwise, may be filled before the vacancy occurs but the new director may not take office until the vacancy occurs.
The corporation may file an amended annual report with the Commission indicating the filling of a vacancy.
(Code 1950, 13.1-222; 1956, c. 428; 1985, c. 522; 1991, c. 124.)
Thank you for your help!
Mister Condo replies:
S.M., thank you for your question. As you know I am neither an attorney nor am I an expert in Virginia Community Association Law. If you feel you have a true legal quagmire on your hands, you should consult with your association’s attorney or hire one to guide you through the process. Here is my friendly advice in case that’s all you really need.
Generally speaking, when seats for the Board are open, the community is notified via the community newsletter or Annual Meeting Agenda. Nominations are encouraged before the meeting so that a slate of candidates can be prepared. Some association allow nominations from the floor at the Annual Meeting, some require nominations to come from a Nominating Committee before being proposed to unit owners. You have indicated that there are two Appointees. This would indicate that two folks have left the Board. From what you have told me, the Board is free to appoint whomever they see fit to fill the remaining terms of those two Board members. This is quite typical from my experience and quite necessary to keep the Directors positions filled, especially in communities where there are few volunteers looking to serve on the Board. The expiring term is another matter and requires a nomination and vote of the unit owners for the new director to be elected or re-elected if the Director desires to run again. If this is what is happening, I think you are in pretty good shape. Again, this is only my friendly opinion. You may wish for a more legal interpretation to get your community through this election cycle and Director appointee process. All the best!