Generally, a governing document or state statute authorizing removal will define the types of conduct warranting removal (e.g., misappropriation of association funds or other criminal conduct, failure to properly perform duties). When more immediate action is necessary, most states and/or community bylaws have procedures for removal (akin to recall of a political officeholder), allowing homeowners to submit a petition for removal (or similar request) seeking a vote to remove the troublesome board member. In relatively mild cases, simply organizing a campaign to defeat the board member in the next HOA election may be sufficient. The remedies available to homeowners for handling a problematic board member depend, in part, on the applicable state’s laws and the HOA’s governing documents. Options for Dealing with Problematic Board Members. In cases of egregious and/or intentional misconduct, the offending board member may incur individual civil liability – or even criminal charges (e.g., a board member who misappropriates association funds) – though the majority of states exempt individual board members from liability for simple negligence. Likewise, a board member who ignores association rules, abuses his or her power, or singles out disliked homeowners for adverse treatment can expose the association to significant liability. Or, if a board neglects to enforce restrictions, a future board may find that the association’s enforcement rights have been waived. If the board fails to collect assessments and make arrangements to maintain common property, areas of the development could fall into disrepair. If members do not show up for board meetings and therefore a quorum is not present, the board may be prevented from taking actions necessary to the association’s core functions. Further, actions taken by an association or board member with improper motives are subject to be reversed or voided by a court if challenged.Ī board member can also cause problems for an association by simply failing or refusing to do the job for which he or she was elected. Any such self-dealing is contrary to the fiduciary duty and can lead to liability against the HOA and the board member personally. Under the above-described fiduciary duty, a board member is prohibited from taking any actions on behalf of the HOA, or making any decisions within his or her capacity as a board member, which is motivated by self-interest. Potential Signs of Problematic Board Members. Some communities have decided to adopt a “Board Member Code of Ethics” to assist board members and officers in understanding their ethical obligations to the community. Community Housing Improvement System & Planning Assn., 171 Cal.App.4th 1356, 1380 (2009). Arbitrary or inconsistent enforcement can sometimes result in waiver of the association’s right to enforce the covenant at issue. When carrying out their duties, the board and officers must act in good faith and enforce community rules uniformly, consistently, and in compliance with any relevant statutes. The fiduciary obligation, when properly observed, prevents self-dealing and requires officers and board members to avoid conflicts of interest. Just as officers of a for-profit corporation have a duty to act in the best interests of the business and its shareholders, so too are board members and HOA officers obliged to act in the best interest of the community. Individual board members and HOA officers generally owe what is known as a “fiduciary duty” toward the association and its homeowners. Importantly, a board’s enforcement powers are limited to what is authorized by the community declaration and state law. For instance, in a community with landscaping rules, an architectural review committee would determine if proposed improvements are compliant, and the board of directors would take action against non-compliant homeowners, whether through fines, suspension of common-element and/or voting rights, or civil litigation. In some communities, the board also appoints an architectural review committee (or similarly titled body) responsible for ensuring compliance with the association’s aesthetic standards. The responsibilities of the board of directors generally include maintenance of common areas and elements, adoption of rules and bylaws relating to matters within the board’s authority, calculation and collection of assessments, and enforcement of community covenants and restrictions.
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