While it takes a judge to invalidate an election, generally owners may recall a board. Recently, we attended an annual meeting with a very close election. Nine candidates were nominated to fill four positions. While all the proper election procedures were followed, several of the candidates were unaware of their ability to solicit proxies from their fellow homeowners. As a result, two incumbents were re-elected as well as two candidates who generally favored the actions of the current board. The election results were achieved even though the vast majority of owners in the room opposed the current board and their courses of action.
Two days after the elections, a few of the defeated candidates circulated a petition among the owners aimed at calling a special meeting. The defeated candidates not only wanted a new meeting, but also wanted a new election.
The bylaws of every association must be carefully reviewed in the instance of a contested election. At this association, signatures of 25% of the owners are required to call a special meeting. The defeated candidates had no trouble getting the 25% owner signatures, however the bylaws make no provision for invalidating an election. As a result, the only way the defeated candidates could invalidate the election would be through judicial proceedings. (remember Bush v. Gore)
Bylaws of most associations do contain a provision for removing board members. At this association, removal of board members requires a vote of a majority of owners in the entire association. Last week, the special meeting of the owners was called and 85% of the owners were present in person or by proxy. Again, the results were very close, however, only 45% voted to remove the recently elected board members, while 40% voted they retain their positions. While some may think the vote to recall the board succeeded, it is important to note that the bylaws mandate that a “majority of the entire association” is needed for removal and the 45% obtained was shy of a “majority of the association.” As a result, the recently elected board members remain in their positions.
If the governing bylaws had been silent as to removal, the disgruntled owners would have been left with no alternative but to go to court to invalidate the election. However, as history has shown and caselaw clearly indicates, absent out right fraud, forgery, or gross procedural injustice, courts are weary of mandating a new election.