HOA needs petition to recall board members

Q: We want to recall one or two board members. We do not have the mailing addresses for our unit owners. The homeowners association's management company said it cannot release them because of privacy concerns, which I see as a valid concern.

How do we set in motion the recall? Your insights are most welcome and appreciated.

A: Your management company appears to be playing games with you. In order to start the recall, you will need a petition signed by the homeowners, not renters. In that petition, have the homeowners print their names, list their telephone numbers and sign their names. Each page should state the reason for the petition so that it does not look like you had homeowners just sign blank pages. You will need to have at least 10 percent of the members in good standing with your HOA to sign the petition. It is always best to obtain more signatures if possible.

You need to hand-deliver the petition to the management company, and/or send it by certified mail, return-receipt requested. If you hand-deliver the petition, have one of the staffers, preferably the community manager, sign for it.

Not less than 15 days, and no more than 60 days, after the receipt of the petition, the management company is to send recall ballots in the mail to homeowners in the same manner as it sends election ballots.

Homeowners have 15 days in which to return the secret ballot for the recall of the directors. The board sets the date of the meeting, not more than 15 days after the deadline to return the ballots, and not more than 90 days after the receipt of the recall petition.

Only secret ballots are counted at an open meeting. In order to successfully recall directors, at least 35 percent of the total number of homeowners must vote. So, if you had 100 units, at least 35 owners would have had to vote in the recall. To remove a board member, the HOA must have a majority of all votes cast. So, if 35 voted, the HOA would need 18 to vote yes to remove the board members. A quorum is not required to be present at the meeting.

The board members -- both those being recalled and those not being recalled -- are not allowed to have access to the ballots, and they are not allowed to participate in the opening and counting of them.

The management company prepares the recall information (i.e. the process and deadlines) and ballots to be mailed to the homeowners.

Per state law, your HOA would not be allowed to prepare the ballots or mail them to homeowners. If the association failed to follow these regulations, you could file a formal complaint against the association and management company with the Nevada Real Estate Division or the ombudsman office.

Q: I have a question regarding terms of board members. Our covenants, conditions and restrictions state board members serve a two-year term. We have five board members. Three board members' terms expired in January. Our association has elections every year at our annual board meeting. This year no elections were held.

In our other association we have five board members. All five positions are up annually. They serve one-year terms. This year, the board decided to have only three vacancies filled, and next year they plan on having the other two filled. Can they just do this?

A: If the association sends a second notice for candidates and gets no volunteers, it would not need to send ballots to elect candidates, as they would be elected by acclamation. This would be the only scenario where formal elections with ballots would be exempt.

If your association has not even sent out candidate applications, you will need to contact the Nevada Real Estate Division and the ombudsman office, as the board would be in violation of state laws and of your governing documents.

NRS 116.31034 subsection 3 requires that the terms of office are to be staggered in such a manner that there are an equal number of members elected each year. This section does not apply to board members who are appointed by the community developers, or for boards with directors that only serve for one year or less.

It would appear that your association with one-year terms decided to stagger elections. The staggering law, which is not mandatory for associations where terms are one year or longer, does not prohibit your association from making the change.

It is a better system to have staggered terms, because it allows for continuity on the board as opposed to the possibility of a complete new board of directors each year. Your board should have contacted its legal counsel when considering this change, and it should have been on the board's agenda when the change was to be considered and voted upon by the directors.

Barbara Holland, certified property manager, is president and owner of H&L Realty and Management Co. To ask her a question, email support@hlrealty.com.