Full question:
A few weeks ago, there were allegations from two residents that the HOA Board President threatened physical violence towards another homeowner (a woman) and board member. The two witnesses came forward and provided a written statement and met with the entire board, including the President, stating that the President said he wanted to physically harm/hurt another resident and one of the board members. The board asked him for his resignation, however, he refused and he is still serving as if nothing happened. The board has not communicated anything to the witnesses or victims that came forward and testified in front of the board, not even an apology. It appears that they ignoring them and hoping the problem will just go away. The residents who are involved feel intimidated and frightened by this man. Criminal charges have not been filed. This person, in my opinion, is not fit to serve on the board another day due to a conflict of interest with the homeowners and his alleged threats of physical harm to residents. What legal action can be taken to remove this man from the board?
- Category: Real Property
- Subcategory: Homeowner's Association
- Date:
- State: New Jersey
Answer:
The terms of the declaration and bylaws of the association will generally determine the procedure to be followed in removing a board member. For example, one HOA states as follows:
Question: How is a board member removed from the board?
Answer: A board member may resign in writing and the board may appoint a homeowner to serve out the term. If a board member misses a specified number of meetings mentioned in the by-laws, he may be removed. A homeowner can call for an election to remove a board member by having 5% of the homeowners sign a petition. A board member may be removed for being found to be of unsound mind, a felon, or breach certain duties (Sections 7221. and 7222.)
See also:
http://www.petitionspot.com/petitions/LakesidePlaza/
Please see the following NJ statutes:
46:8B-12.1. Members of governing board; elections; written approval of
actions by developer; control by board; delivery of items
a. When unit owners other than the developer own 25% or more of the
units in a condominium that will be operated ultimately by an
association, the unit owners other than the developer shall be entitled
to elect not less than 25% of the members of the governing board or other
form of administration of the association. Unit owners other than the
developer shall be entitled to elect not less than 40% of the members of
the governing board or other form of administration upon the conveyance
of 50% of the units in a condominium. Unit owners other than the
developer shall be entitled to elect all of the members of the governing
board or other form of administration upon the conveyance of 75% of the
units in a condominium. However, when some of the units of a condominium
have been conveyed to purchasers and none of the others are being
constructed or offered for sale by the developer in the ordinary course
of business, the unit owners other than the developer shall be entitled
to elect all of the members of the governing board or other form of
administration.
Notwithstanding any of the provisions of subsection a of this section,
the developer shall be entitled to elect at least one member of the
governing board or other form of administration of an association as long
as the developer holds for sale in the ordinary course of business one or
more units in a condominium operated by the association.
b. Within 30 days after the unit owners other than the developer are
entitled to elect a member or members of the governing board or other
form of administration of an association, the association shall call, and
give not less than 20 days' nor more than 30 days' notice of, a meeting
of the unit owners to elect the members of the governing board or other
form of administration. The meeting may be called and the notice given by
any unit owner if the association fails to do so.
c. If a developer holds one or more units for sale in the ordinary
course of business, none of the following actions may be taken without
approval in writing by the developer:
(1) Assessment of the developer as a unit owner for capital
improvements.
(2) Any action by the association that would be detrimental to the
sales of units by the developer. However, an increase in assessments for
common expenses without discrimination against the developer shall not be
deemed to be detrimental to the sales of units.
d. Prior to, or not more than 60 days after, the time that unit owners
other than the developer elect a majority of the members of the governing
board or other form of administration of an association, the developer
shall relinquish control of the association, and the unit owners shall
accept control. Simultaneously, the developer shall deliver to the
association all property of the unit owners and of the association held
or controlled by the developer, including, but not limited to, the
following items, if applicable, as to each condominium operated by the
association:
(1) A photocopy of the master deed and all amendments thereto,
certified by affidavit of the developer, or an officer or agent of
the developer, as being a complete copy of the actual master deed.
(2) A certified copy of the association's articles of incorporation, or
if not incorporated, then copies of the documents creating the
association.
(3) A copy of the bylaws.
(4) The minute books, including all minutes, and other books and
records of the association, if any.
(5) Any house rules and regulations which have been promulgated.
(6) Resignations of officers and members of the governing board or
other form of administration who are required to resign because the
developer is required to relinquish control of the association.
(7) An accounting for all association funds, including capital
accounts and contributions.
(8) Association funds or control thereof.
(9) All tangible personal property that is property of the
association, represented by the developer to be part of the common
elements or ostensibly part of the common elements, and an inventory of
that property.
(10) A copy of the plans and specifications utilized in the
construction or remodeling of improvements and the supplying of equipment
to the condominium and in the construction and installation of all
mechanical components serving the improvements and the site, with a
certificate in affidavit form of the developer, his agent, or an
architect or engineer authorized to practice in this State that such
plans and specifications represent, to the best of their knowledge and
belief, the actual plans and specifications utilized in the construction
and improvement of the condominium property and for the construction and
installation of the mechanical components serving the improvements. If
the condominium property has been declared a condominium more than 3
years after the completion of construction or remodeling of the
improvements, the requirements of this paragraph shall not apply.
(11) Insurance policies.
(12) Copies of any certificates of occupancy which may have been
issued for the condominium property.
(13) Any other permits issued by governmental bodies applicable
to the condominium property in force or issued within 1 year prior
to the date the unit owners other than the developer take control
of the association.
(14) All written warranties of the contractor, subcontractors,
suppliers, and manufacturers, if any, that are still effective.
(15) A roster of unit owners and their addresses and telephone
numbers, if known, as shown on the developer's records.
(16) Leases of the common elements and other leases to which the
association is a party.
(17) Employment contracts, management contracts, maintenance
contracts, contracts for the supply of equipment or materials, and
service contracts in which the association is one of the contracting
parties and maintenance contracts and service contracts in which the
association or the unit owners have an obligation or responsibility,
directly or indirectly to pay some or all of the fee or charge of the
person or persons performing the service.
(18) All other contracts to which the association is a party.
L. 1979, c. 157, § 2, eff. July 19, 1979.
46:8B-13. Bylaws
The administration and management of the condominium and condominium
property and the actions of the association shall be governed by bylaws
which shall initially be recorded with the master deed and shall
provide, in addition to any other lawful provisions, for the following:
(a) The form of administration, indicating the titles of the officers
and governing board of the association, if any, and specifying the
powers, duties and manner of selection, removal and compensation, if any,
of officers and board members. If the bylaws provide that any of the
powers and duties of the association as set forth in sections 14 and 15 of
P.L. 1969, c. 257 (C. 46:8B-14 and 46:8B-15) be exercised through a
governing board elected by the membership of the association, or through
officers of the association responsible to and under the direction of
such a governing board, all meetings of that governing board, except
conference or working sessions at which no binding votes are to be
taken, shall be open to attendance by all unit owners, and adequate
notice of any such meeting shall be given to all unit owners in such
manner as the bylaws shall prescribe; except that the governing board may
exclude or restrict attendance at those meetings, or portions of
meetings, dealing with (1) any matter the disclosure of which would
constitute an unwarranted invasion of individual privacy; (2) any pending
or anticipated litigation or contract negotiations; (3) any matters
falling within the attorney-client privilege, to the extent that
confidentiality is required in order for the attorney to exercise his
ethical duties as a lawyer; or (4) any matter involving the employment,
promotion, discipline or dismissal of a specific officer or employee of
the association. At each meeting required under this subsection to be
open to all unit owners, minutes of the proceedings shall be taken, and
copies of those minutes shall be made available to all unit owners before
the next open meeting.
(b) The method of calling meetings of unit owners, the percentage of
unit owners or voting rights required to make decisions and to constitute
a quorum, but such bylaws may nevertheless provide that unit owners may
waive notice of meetings or may act by written agreement without
meetings.
(c) The manner of collecting from unit owners their respective shares
of common expenses and the method of distribution to the unit owners of
their respective shares of common surplus or such other application of
common surplus as may be duly authorized by the bylaws.
(d) The method by which the bylaws may be amended, provided that no
amendment shall be effective until recorded in the same office as the
then existing bylaws. The bylaws may also provide a method for the
adoption, amendment and enforcement of reasonable administrative
rules and regulations, including the imposition of fines and late fees which
may be enforced as a lien pursuant to section 21 of P.L. 1969, c. 257
(C. 46:8B-21) relating to the operation, use, maintenance and enjoyment
of the units and of the common elements including limited common
elements.
L. 1969, c. 257, § 13; amended 1991, c. 48, § 1; 1996, c. 79,
§ 1.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
