Unit Co-Owners Have Two Seats on Board
Question: Our association’s declaration states that the board of directors shall consist of five people. Can two people who are owners of the same unit serve on the board at the same time? One of the two does not vote, but that reduces the voting members to only four. Can you give us your opinion?
Answer: In my opinion, it is unfair to have an individual unit or lot represented by more than one person on the board. However, unless the declaration or the bylaws state that only one person from a unit may serve on the board, it is probably legal for the second person to serve.
The scenario that you describe fails to provide the voting power required in the governing documents. The board is supposed to have five voting members so that an uneven number will prevent tie votes and stalemates.
The board should consult the association’s attorney to ensure that it is operating correctly.
A Verbal Resignation Might Not Be Binding
Q: If one of the board members in our association resigns, can he rescind his resignation at the following meeting and continue to serve on the board? Would an election be required to fill the vacancy?
A: You should be able to find answers about the procedures for resignations and vacancies on the board by reading your association bylaws.
Sometimes in the midst of a heated discussion, a board member will say that he or she is resigning but after calming down, the board member reconsiders and decides not to submit a written resignation. If there is no written resignation, the board is not required to take any action.
In most associations, the board has the authority to appoint someone to fill a vacancy on the board. If a board member is recalled (voted out) by a vote of the owners, then the owners would have the right to vote on a replacement.
It is possible that the board member submitted a resignation, reconsidered his resignation and the board then appointed him to finish out the term. If so, this should be reflected in the minutes of the meeting.
Board Has Trouble Getting Financial Documents Back
Q: Our association elected a new president over three months ago. The former president has refused to turn over some of the bank statements, other financial records and management company information. The president also served as the treasurer. We are suspicious of some of the financial practices that the former president approved. We cannot get control of the bank account.
We have mailed and hand-delivered a request for this information but the former president is not responding. How should we proceed?
A: If you have a management company, your manager should have duplicates of much of the information that you need. New signature cards can be obtained from the bank by providing the bank with copies of meeting minutes that document the election of officers and the names of the new officers.
The association’s attorney should be notified immediately so that a demand letter can be sent to the former president.
Residents Are Caught in Middle of Fence Dispute
Q: The fences in our homeowners association are not being maintained. The painting contractor informed the association when the fences were painted the last time that the fences would need to be repaired before he would paint again.
The board of directors admits that the fence is common area but says that the association’s maintenance requirements are limited to painting. The board states that owners are responsible for replacing or repairing the fences between neighboring lots. As he warned previously, the painter has refused to paint the fences because they have deteriorated so badly. Does California condominium law clarify the responsibility for common area maintenance?
A: According to California Civil Code Section 1364, if the association’s declaration clearly states that the fences are common area, rather than exclusive use common area, the association is responsible for repairing, replacing or maintaining the fences. The board has the responsibility to adopt a budget that adequately serves the needs of the association. Poor financial planning or inadequate reserve funds are not valid excuses for failing to maintain the common areas. The board can approve a special assessment equal to 5% of the annual budget in order to pay for common area expenses.
Consult an attorney who represents a large number of community associations. The attorney will be able to tell you whether the fences are your responsibility or the association’s.
Jan Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions. Send questions to: Condo Q&A;, Private Mailbox 263, 4790 Irvine Blvd., No. 105, Irvine, CA 92620-1998.
