If we take the time to dream about the ideal board of directors we dream that they will be loved and respected by the association, will be unanimously reelected when their terms expire, they will never move away, get too busy or otherwise decide to resign, and finally, god forbid, they will never need to be forcibly removed from the board. Sadly there is a shortage of immortal, all-knowing, all-wise people who want to run for and stay on association boards.
Board vacancies are a fact of life and filling those vacancies is not always straight forward. However, filling those vacancies properly is of fundamental importance because a properly elected board is a prerequisite for the Association to take any action. Any dispute about whether any board member was properly elected or appointed undermines the owners’ faith in the association, can lead to legal challenges regarding the board’s ability to act, and can ultimately cripple the association’s ability to transact business.
Given the importance of this issue it is surprising to many that the Washington Condominium (RCW 64.34.) and Homeowner Association Act (RCW 64.38) provide little guidance on how to fill vacancies. When it comes to qualifications, terms, electing, removing and replacing Board members, both Acts say the same thing. Unless otherwise provided in the Declaration for condominiums or the governing documents for homeowners associations, the bylaws of the association shall provide for:
The number, qualifications, powers and duties, terms of office, and manner of electing and removing the board of directors and officers and filling vacancies; RCW 64.34.324(1)(a) and RCW 64.38.030(1)(a).
That leaves your association at the mercy of your bylaws, which may or may not adequately address these issues. In some instances inadequate or poorly drafted bylaws can result in significant problems that can cripple an association. For example, under the bylaws of one King County association, the board could not appoint a new board member when an existing board member resigned. Even worse, the replacement board member could only be elected at an annual meeting and only if there was a quorum present. After the first annual meeting went by without a quorum and they could not elect a replacement board member it was mildly troubling. But, as the years passed without a quorum at the annual meeting and as more board members resigned for very normal reasons, the size of the board dwindled and there was the very real risk that the board would not have enough members to get a quorum of the board. At that point the Association would not be able to conduct any business at all.
To avoid problems like that and disputes over terms, election protocol, and the authority to appoint and remove board members, every association should look at their bylaws and governing documents and be able to answer the following questions:
- What are the minimum qualifications to be a board member?
- Do they need to be a unit owner?
- Do they need to be living in their unit?
- What is the minimum and maximum number of board members?
- What is each board member’s term?
- How exactly are board members elected?
- Do you need a quorum present to elect a board member when their position is up for reelection?
- What if you cannot get a quorum?
- Can the board appoint someone to serve out a resigning board member’s term or must a special meeting be called to elect the replacement?
Remember, just because your association has “always elected or appointed board members this way” does not make it legal. Only a properly elected or appointed board can lawfully transact business on behalf of your association. So, if you cannot easily answer the nine questions listed above, have not been following the requirements of your governing documents, or realize you need to change your requirements, you need to take action now before a vacancy arises.
