June 10, 2022 - 5:58 pm
Q: The neighbors large tree behind us overhangs our back wall and is constantly dropping leaves into our backyard and pool. We believe it is a willow acacia. It is every green and drops these very long, slender leaves that are difficult to remove.
We are in adjoining homeowner associations that are under one large HOA. We have contacted them over two weeks ago and haven’t had a reply. Is there anything that can be done about this tree?
A: If you have not contacted the owner of the house, please do so. If you don’t feel comfortable meeting face to face, then send the homeowner a letter. You may want to include some photographs. Ask the owner to please take care of overhangs, otherwise you will be forced to have your landscaper cut the limbs. By placing your neighbor on notice, allowing a reasonable amount of time for the neighbor to respond, you would be reducing any liability from the neighbor by trimming the tree.
Q: Last year, our HOA board voted in a board meeting to remove someone as a sitting board member from the board of directors. The vote was 3-1 for removal as one board member was absent. I have heard it said that the membership puts a person on the board of directors, and they are the only ones who can remove him/her.
In addition, our HOA bylaws has a section dealing with board member removal. In Article 1, Section 3.5.1-2 it says the following:
3.5.1 Any director may be removed from office, with or without cause, by a two-thirds (2/3) vote of all members entitled to vote at any annual meeting or at any special meeting called for that purpose at which a quorum is present, except for any director appointed by the declarant (builder). Declarant can remove any director appointed by declarant at any time, with or without cause. The removal of any director not appointed by the declarant must be conducted by secret written ballot. The secretary of the association shall cause a secret ballot and a return envelope to be sent, prepaid by United States mail, to the mailing address of each unit within the community or to any other mailing address designated in writing by the member. Each member must be provided with at least 15 days after the date the secret written ballot is mailed to the member to return the secret written ballot to the association. Only the secret written ballots that are returned to the association may be counted to determine the outcome. The secret written ballots must be opened and counted at a meeting of the members of the association. A quorum is not required to be present when the secret written ballots are opened and counted at the meeting. The incumbent directors, including, without limitation, the director who is subject to the removal, may not possess, be given access to or participate in the opening or counting of the secret written ballots that are returned to the association before those secret written ballots have been opened and counted at a meeting of the members of the association.
3.5.2 Any director may be removed from office, with cause, by a majority vote of the board of directors at any regular or special meeting of the board of directors called for that purpose. It is cause for removal if a director is absent from more than three consecutive meetings of the board of directors and those absences are not excused by the president of the association prior to the meetings in question.
Both the NRS and 3.5.1 of our bylaws clearly state that a board member can only be removed by what is essentially a recall vote held with all members voting by secret ballot. However, the board claimed they had the authority under 3.5.2 above to remove the board member based on 3.5.2 of our bylaws, which says they have the authority to remove a director from office.
I believe the words “from office” refers to the offices of president, vice president, secretary or treasurer. Directors holding one of those offices was voted into those offices by the board, and the board by a majority vote can remove them “from (that) office.” To accept the board’s opinion of their authority to vote to remove a sitting director by the relying on the two words “from office” would have 3.5.2 in direct contradiction to the Nevada Revised Statutes and 3.5.1 of our bylaws.
What’s your opinion on this case? Did the board have the authority to remove the individual from the board, or did they act beyond their authority?
Additionally, if the board did act beyond their authority, would they be protected by the directors and officers insurance available to them via the HOA?
A: Under NRS 116.3103 (2c), the board of directors cannot remove a director. The statement that board members can be removed from the office appears to mean that an officer of the association can be removed from that position but cannot be removed as a director. Remember that officers are directly elected by the board of directors.
In your covenants that were sent to me, they explicitly state how a director can be removed from the board, which is by the vote of the membership. If section 3.5.2 was meant to authorize the removal of a director by the board, it would not have used the term, “office” but would have used the term “director.”
In this case, it appears that the board has inappropriately removed a director.
Barbara Holland is an author and educator on real estate management. Questions may be sent to email@example.com.