Q: Our board has a member whose participation is perfunctory at best. He rarely responds to emails or participates in email discussions. I have missed meetings. When he does attend meetings, he rarely participates in discussion. May the board vote to remove him? We would like to open the position up to someone who would be actively engaged. — WE, Carlsbad
A: There can be many reasons why directors who are not fulfilling their leadership role but won’t step aside. Sometimes directors don’t resign because they feel they are letting the HOA down, and it can be helpful to tactfully tell such a volunteer that it’s OK to resign if they aren’t able to do the job.
In some cases, volunteers are relieved to know it’s OK if they want to step aside until a future time when they can be more involved.
Sometimes, marginally involved directors refuse to resign because they are proud of being on their HOA board. Frankly, this kind of director is often a problem for HOAs, because the feeling of achievement is not the best volunteer attitude. Such directors are often defensive instead of acting as servant leaders to their neighbors.
If a director is unable to adequately serve on the board but refuses, sometimes the HOA bylaws will have a provision empowering the board to consider a given number of missed meetings as a resignation by a director.
Otherwise, the only way to remove an otherwise eligible director is to have a vote of the membership to recall the director. Removal elections are often very negative, and sometimes do more harm than good in terms of dividing the HOA community. So, often it is better to simply wait until the director’s term expires and then make sure a more committed volunteer is elected.
Q: If someone is a trustee of a trust can they be a board member? —NK, Covina
A: Entities such as a family trusts, corporations, or limited liability companies (LLCs) owning a property in the HOA are members of the HOA. However, an entity needs a designated representative to act, speak, or vote on behalf of the entity member, or even to serve on behalf of the entity on the HOA board.
For a family trust, that person will be the trustee. The trustee is identified in the deed, which normally will say “John Doe, Trustee of the John Doe Family Trust.” If the original trustee has been replaced, there may need to be a deed recorded by the trust identifying the current trustee. Corporations may designate an officer to represent the corporation’s HOA membership interests, and that person could serve as a director.
The corporation will often need to provide the HOA with a corporate resolution confirming the authorization of the representative to speak on behalf of the corporation. A limited liability company (“LLC”) will normally have a manager or other officer designated to be the LLC representative. That would also need to be documented to the HOA to confirm the LLC’s designation of the person who is entitled to vote or speak on behalf of the LLC.
When this issue arises, check your HOA bylaws and with legal counsel, to avoid mistakes and misunderstandings.
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com .
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