Q. What does an association do when a board member who no longer has a vested interest in the community (having owned two condo units, but sold them both in the past two years) refuses to step down? Voting the individual off the board is not an option because of an apathetic membership, and one where the majority of members do not know how condominiums work.
The governing documents are silent on this issue. A 51% vote is required to remove a board member.
A. “The question posed is representative of one of the complications and frustrations of condominium ownership,” says Kimberly A. Bielan, principal at Moriarty Troyer & Malloy, LLC in Quincy, Massachusetts. “It is essential to a thriving association to have unit owners actively participating in the affairs of the condominium, and a key component to that is ensuring there is a functional and valid board in place to manage the condominium.
“As with most condominium inquiries, the first place to start is the condominium’s governing documents. The governing documents may provide that, as a precondition to being a board member, the individual must be the owner of, or have an ownership interest in, a unit at the condominium. If there is an ownership requirement, then an argument can be made that the individual who has sold their units has been automatically disqualified from acting as a board member. In such circumstance, the remaining board members could record an instrument reflecting the disqualification and identifying the revised list of board members. If there has been a disqualification, the board members may be positioned to appoint a new unit owner to join them on the board, in accordance with the requirements set forth in the governing documents.
“In the absence of an automatic disqualification as described above, the next best step would be to undertake a grassroots effort to educate the unit owners in connection with the removal of the board member. We recognize the question presumes that the vote for removal cannot be obtained, but if a concerted effort to inform and educate is undertaken using email, Zoom, phone calls—or even by going door-to-door—you may be able to obtain participation from the requisite number of unit owners.
“If there continues to be difficulty in obtaining the requisite unit owner participation, you should check your documents to see if they include a provision allowing a special meeting of unit owners to be called by a small subset of the beneficial interest. While such provision is not contained in all documents, in the documents that do have a provision to this effect, provisions typically permit a meeting to be called by owners with 33% of the beneficial interest. In the event you are unable to get a majority to act, this could be a useful tool to bring everyone together.
“Finally, if all of the foregoing approaches do not work, a last resort would be filing suit; however, it would likely be an uphill climb. A court is likely to say that the governing documents provide a mechanism for removal, and if you cannot get a majority of unit owners to agree, the court will not substitute the wishes of the minority by issuing an order of removal.”