Legal Question in Real Estate Law in California

My association Rules and Regulations on filling Vacancies state:

Vacancies on the Board caused by any reason other than the removal of a Director may be filled by either the Directors or Owners vote. Any vacancy caused by the removal of a Director must be filled by a vote of the Owners.

When I question the Management company about this since the Board just removed a Director and then appointed another below is how they responded after they said they checked with their council. This does not seem right.

Although the bylaws literally state that the owners vote is required to fill a vacancy when a director is removed, the intention of this provision is on the basis that an owner vote initially removed the director. It is not intended to be applied when the current directors declare a seat vacant because the director in question no longer meets the qualifications to serve as a director.

For example, if a director moved, they would not longer qualify to serve and therefore their seat would be declared vacant. Another example would be if a director became 4+ months delinquent on their assessments � this too would vacate their seat per the governing documents. Subsequently, if the owners did not remove the director, it would not be required for them to vote to fill a vacancy under the aforementioned circumstances. Also, Civil Code 1370 provides that CC&R�s, deeds and condominium plans should be liberally construed to facilitate the operation of the community. Legal counsel believes that this code also applies to the Bylaws which is what you are calling into question.


Asked on 1/12/11, 2:18 pm

2 Answers from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The Board's position seems reasonable to me. It did not create the vacancy. It merely recognized its existence. There is a difference between removing a director and declaring that a director has removed himself (by dying, declaring bankruptcy, moving, etc.).

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Answered on 1/17/11, 5:03 pm
Craig Collins Craig M. Collins, Esq.

I'm familiar with this issues since I just finished handling a long case on it. The answer depends on a close reading of your by-laws. No lawyer could give you an informed opinion without reading the by-laws carefully. Based on the limited facts you gave, I would tend to think that the Board is wrong. The empty seat should be filled by a vote of the owners. If you had to file a lawsuit on this issue against the Board, the stakes would be high since the prevailing party probably would be entitled to recover all attorney fees from the losing party. www.blumcollins.com.

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Answered on 1/17/11, 6:50 pm


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