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Homeowners’ Association subject to TPC 209?
Or Condo Association, subject to TPC 81 or TPC 82?
If Condo association, provide the date it was established and whether you know if TPC 81 or TPC 82 applies.

Recalls can be so tricky (and with a board that may fight you every step of the way, meaning you have to dot every i and cross every t, or the board will have grounds to ignore the recall effort) that it’s often best to just wait for the annual election.

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I would focus more on HOA Policies, where said policies are within the scope of the board’s responsibilities. When you have a good draft of xyz policy, ask for the board to vote to approve the policy. Keep a binder with all policies.

The Secretary and Treasurer can have their own respective guides, but nothing that mandates they do xyz. Why? Because I do not think the Board or President legally has the power to require a volunteer to do xyz. The board does have the power to appoint people to officer positions and can pick people willing to do xyz.

Examples:
Policy for Collections
How many letters will be sent before a lien is placed.How much in arrears a member must be before the Board will consider foreclosure.Whether a collections attorney or collections agency will be used.

Policy for Meetings
All bylaws and state law on board meetings implicitly included.How to get an item on the agenda.Whether to use a parliamentary procedure (preferably not Robert’s Rules).

Guide for Secretary
Only meeting start time, meeting end time, motions made and votes on motions will appear in the Minutes. Discussion is generally not to be included in minutes, due to the risk of editorializing, defamation and possibly inhibiting people from participating.

Guide for Treasurer
With the manager, or possibly delegating to the manager, prepares monthly and annual (1) balance sheet and (2) income and expense statement. By himself or herself, or with input from the Board or those the Board delegates, prepares annual budget. Has check-signing authority. Insures controls are in place for any check over $1000 to be signed by two, Board-approved reps of the HOA.

Guide for President
Prepares agenda. Presides at all meetings. As needed, rules on whether motions at board meetings or owners’ meetings are in scope (meaning within the legal authority of the Board or owners). Liaison to the HOA attorney and vendors, though often times having the HOA attorney address the entire board is best. May delegate any responsibilities as desired and with board approval.

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Best practices IMO:

Funds in the reserve account should only be used for the items (a.k.a. “reserve components”) listed in the HOA’s reserve study.

Preferably the reserve study was completed in the last five years and updated annually.

A reserve component is going to be any infrastructure (or possibly service) with a life expectancy (when new) of at least one year and for which the HOA has the maintenance responsibility. I mention “service” because, for example, the several thousand dollar cost of a reserve study is typically included as a “component cost” in the reserve study.

Bylaws, CC&Rs and state statutes sometimes place restrictions on the use of reserve funds.

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I agree about the board likely waving their collective hands and just saying the owners’ vote reflects the board vote. On the one hand, that’s foolish and can be risky. For one thing, it makes owners think they have the power to make decisions for which they do not actually have (not one bit) legal authority. But I also figure that, say, the defendant would get nowhere here arguing that the board had no authority to sue. After all, the HOA is using an attorney, correct? The attorney knows darn well that he/she takes his/her orders from the board, and not the owners, when it comes to writing up the initial paperwork for the lawsuit and filing it at the courthouse. This is enough lawful authority to make my point (about who has the legal authority to do xyz here) pretty irrelevant. At least, I do not think I would risk the wrath of the board to make a big fuss on the point. Not that you were so inclined.

I know Idaho’s HOA statutes and case law pretty well. Idaho does not even have an ombudsman. So an Idaho HOA member would be usually stuck with lawyering up. The latter is a nightmare unto itself. As I noted above: Boards have too much unregulated power. They also tend to have the ego-boost of having their own attorney at their disposal. Boards can make one’s life a nightmare and get away with it. Why? Because to fight a board, usually one has to be able to afford an attorney.

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FWIW You could politely but formally ask the Board to vote on this (or provide evidence the board voted). Why? Because the Idaho Nonprofit Corporation Act at 30-30-601 says, in so many words, that the board decides when to file lawsuits. Meaning the Board, and only the board, must have a formal, documented vote. Per the Idaho HOA Act section 55-3204, the Board has the right to discuss potential litigation in executive session. But the board’s vote should be done at a meeting in open session.

This might put some pressure on the board to comply with the law in general. As likely though is that the board will retaliate against you. Such is the nature of many HOA boards. Directors tend to be unskilled amateurs who nonetheless give many volunteer hours, without being paid a cent. It’s a terrible system.

Else I would just note that sometimes bringing suit is appropriate.

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kirbykins,

— Be aware that your HOA is most likely a corporation with articles of incorporation and CC&Rs that in total, require you to be a member as long as you own a lot within the boundaries of the HOA. You can confirm whether the HOA is a corporation by going to the Idaho Secretary of State (SOS) site and using the business lookup section. At the SoS site, you also want to confirm if the corporation is in good standing. “Good standing” (or not) might be quite relevant.

— The corporation, not you or any other natural person, would be the plaintiff.

— If the HOA brought suit pursuant to its governing documents (declaration, bylaws and articles of incorporation), then I see no way for an individual owner to “opt-out” from the suit.

— But there are questions about whether the decision was made per the governing documents. Do the Bylaws require a vote of the owners before the HOA can file suit? Nationwide with HOAs, requiring such a vote would be unusual. Usually the board and the board alone has the legal authority to file suit. Though some boards might conduct an “advisory vote” (with no legal force) so owners can weigh in at least a bit.

— In the two Idaho statutes that are most relevant (the Idaho HOA Act and the Idaho Nonprofit Corporation Act), I see nothing that helps.

— Your best chances for halting the lawsuit likely lie in getting together others who feel as you do and trying to win a majority of seats on the board.

— If you quote exactly what your bylaws and Declaration say about bringing suit, I might be able to say more.

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dophram,
Have you read the covenants, conditions & restrictions (CC&Rs) for your lot? Nationwide these are usually recorded with the county clerk. The courts say this is public notice to all who buy a lot, that is covered by the CC&Rs, that CC&Rs apply.

The courts say that covenants are contractual terms with which all must comply.

Many states require that sellers disclose the existence of a HOA before closing. Are you sure the seller never disclosed this to you?

If you indicate your state, I might be able to shed more light on this for you.

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— I would focus on getting on the board, including campaigning and seeking people’s appointment of you as their proxy. This is a time-honored and law-honored tradition at HOAs and COAs. Hopefully you have folks who feel as you do also running for the board so you can cause the change you want.

— Your bylaws and state law likely give the board the sole authority to appoint officers (meaning President, VP, secretary, treasurer and possibly other officer positions). You should check. If the board chooses not to appoint a qualified person to an officer’s position (VP here), and if for some reason you think this is causing some kind of real harm (and if so, what?), then your remedy lies mostly in first filing a formal complaint of a violation of bylaw abc or state law xyz (if there truly is a requirement to have a VP). Subsequently you could threaten suit. However tying up the courts with something that is not doing harm (IMO) seems imprudent, to say the least.

— Your state laws may have more to say about violations of the bylaws and what remedies you have.

— About this being the third resignation and vacancy this year: Hackneyed but true, I think this is what it is. Getting folks to volunteer for a lot of work that demands much study to do competently, and absolutely will include a lot of conflict, is hard. Apathy at HOAs nationwide is the rule.

— I doubt the bylaws or state law require directors to serve as officers.

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timothadeus,

Please be aware that the courts see the governing documents (CC&Rs, articles of incorporation, bylaws and even rules and regulations) as contractual terms. If the Bylaws have no provision for disqualifying owners from voting at owners’ meetings, because the owners are part-year residents, then no, your HOA cannot lawfully take away their right to vote at owners’ meetings.

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In my several years reading bylaws and state law from across the nation, I think a one year term is quite common. Staggered, multi-year terms are fairly common, too. The problem with staggered terms is that no one is keeping track of resignations, what director started when, and so on. Often many years pass and the current directors cannot figure out where things are with regard to the staggered terms. The latter happens a lot. Boards are left making up things. If this is the board’s only option, hopefully they are being reasonable and fair about it, so as to withstand a court challenge.

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I have seen this come up at another forum. I believe I have read bylaws that do specify which director gets which term. If the bylaws are silent (and most likely, state law is silent on the point), then IMO the board can make a reasonable rule to get the election done and fairly. To do things as perfectly as possible, I think the board should publicize the rule in advance of the election. Ideally the board would even have the rule printed on the ballot. A rule declaring that the directors with the most votes get the longer terms seems fair to me and is also pretty usual.

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Janet, how many board meetings remain? Are you on the board? Who is presiding at board meetings?

If I were in your shoes, and if the board was still accomplishing its duties, then I would not sweat this. These folks are volunteers. They may be working hard on preparing the annual budget and getting a notice out for the annual meeting. I cannot say that a President and VP are critical to achieving this.

Can you share the state where you live, so I can determine if board meetings must be open to owners?

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t10461,

I have been reading HOA/COA laws nationwide for many years, including those sections pertaining to amendments of governing documents such as bylaws.

The only “input” from the state of which I can think is rather passive. For example, the North Carolina Planned Community Act Chapter 47F (a statute) requires the bylaws to provide:

(1) The number of members of the executive board and the titles of the officers of the association;
(2) Election by the executive board of officers of the association;
(3) The qualifications, powers and duties, terms of office, and manner of electing and removing executive board members and officers and filling vacancies;
(4) Which, if any, of its powers the executive board or officers may delegate to other persons or to a managing agent;
(5) Which of its officers may prepare, execute, certify, and record amendments to the declaration on behalf of the association; and
(6) The method of amending the bylaws.

If you describe the specific change being sought, I might have more to say. Also please indicate (1) which HOA/COA statute applies to your HOA and (2) whether your HOA is a corporation.

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fschultz17, I hear you that your design here seems far less invasive and less likely to say, cause someone to trip. However, you spoke of common area usage here. The HOA has the right to regulate the usage of common areas with reasonable rules. If I were you, I would want to know if what the HOA specifies is per Code (law) in your area. If so, then I think you are better off financially just doing what the HOA wants.

Remember, the HOA likely has more resources to fight a lawsuit. Lawsuits often are simply about who has more money. One has to pick one’s battles.

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