Question: I live in a new townhome golf cart community with a newly established HOA, of which I am the secretary. The community has one road with a gated entrance and a posted 20 mph speed limit. We have mailed several newsletters to owners regarding speeding, which is dangerous for pedestrians and children.
The board finally voted to install one custom asphalt speed hump, 4 inches high and 6 feet wide, in order to reduce speeding. The board vote was 60 percent in favor, with the management company in attendance to record the event. The president was one of two directors who voted against motion, and he consequently ignored the wishes of the board and refused to install the speed hump. Obviously, this is extremely frustrating for the majority that approved the hump. What are our options? — H.C.
Answer: Somehow, the balance of power on your board has been turned backwards. The president of a corporation, like a condominium association or an HOA, is not the same type of position as, for example, the president of the United States. You, as a majority of the directors, elected your president to serve as an officer and do the board’s bidding, and almost certainly, you can vote to replace him with one of the other directors. So, there is almost no situation where a president (or any individual director or officer) should be able to hold the majority of a board hostage. If the president will not carry out the will of the majority, and if that will truly is the will of the majority (that is, the majority cares enough about the issue to take action), just vote to replace him. He would remain a director, but you can elect someone else to be president, and then that person can carry out the board’s instructions more faithfully.
Q: We are an HOA with 106 homes. During our last meeting, which was attended by approximately 30 homeowners, the board solicited opinions on a pending decision. When it announced its decision, it was far different than the opinions that were expressed. When asked why they changed direction so significantly, the response was that it was because of additional information submitted from homeowners who were not present at the meeting (for example, from calls made to the board, emails, letters, etc.). I am under the impression that homeowner input must be given at a public meeting, or it does not count. Am I wrong? — J.P.
A: Yes, you are wrong. The law provides that meetings of the board of directors must be noticed and open to the members, and that members must be allowed to participate in the meeting and express their opinion on matters. However, that does not also mean that the board must ignore opinions expressed to them unless they are expressed during a meeting. The board members are entitled to consider any information they want in making a decision for the association, and in fact may take into account their personal experience; management reports that, while inspectable records, may not have been reviewed by the membership; the opinion of their attorney (which typically would not be made public); and, yes, even the opinions of owners who stop them on the street, by the pool, or send them emails or letters. And, if they choose, they can ignore all of these opinions entirely. After all, it was 18th century British politician Edmund Burke who said “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” Ultimately, the board is allowed to make whatever decision it likes, regardless of the input from owners, however that input is provided — and if a majority of the owners disagree with that decision, they have the right to recall and replace the board.
Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to email@example.com. Please include your hometown.