Condo Mutiny
The Mechanics of Recall Votes and Board Takeovers

By Adam J. Cohen, Esq.

As aging buildings deteriorate, property values decline, common expenses increase, and tough administrative decisions have to be made, more and more boards are facing recall petitions and takeover bids by unhappy groups of unit owners.  Anecdotal evidence suggests that these kinds of efforts may have become more frequent and heated in the last few years, and new law going into effect this summer will make it easier for them to succeed.  The interests of the community and the people involved therefore require that they be familiar with what these mechanisms are and how they work.

“Recall” is the procedure for removing someone from office by the vote of his or her constituents.  It can be used to target a single board member or against an entire board simultaneously to cause a complete change of leadership.  Recall is different from a board member’s demotion from a particular officer position by the board’s other members, which most condominium bylaws allow, and it does not involve court litigation, which state law authorizes in cases of serious wrongdoing.  Neither is it a challenge to the validity of an election or a person’s eligibility to serve.  Instead, the recall procedure exists so that the unit owners have the option to quickly remove someone from the board who, for any reason or no reason at all, they simply no longer wish to have there.

The recall procedure often begins with a petition.  At least 20% of the unit owners (or fewer, if the declaration or bylaws say so) generally submit a written demand to the board’s secretary for a special meeting to vote on whether to remove the director or directors.  Under many condominiums’ bylaws – and a new law going into effect this summer for all condominiums – the unit owners can schedule the meeting themselves if the board fails or refuses to do so within fifteen days.  What usually follows is a period of campaigning for and against the measure, with the incumbent board publicizing the good they have done for the community while the insurgents try to rally opposition support and seek voting proxies.  Neither side can use the association’s funds for these purposes.  Likewise, the board is entitled to use the association’s lawyer for explaining the process itself, but not for advice on their personal interests such as strategies for defeating the recall.  All of the ordinary rules governing the rights and responsibilities of the board and unit owners remain in effect; the board cannot withhold the condominium’s records from or otherwise mistreat the insurgent unit owners, who must in turn continue to pay their common charges and obey the community’s rules of behavior.

The recall meeting is conducted in accordance with the bylaws’ general meeting requirements.  Agendas must be created, proxy forms must be verified, minutes must be taken, and even a president who is himself the subject of the recall effort would remain entitled to conduct the meeting.  A separate motion for removal should be made and seconded for each of the challenged directors, who have the right to speak at the meeting in their own defense and to cast their own votes.  Many condominium bylaws require that at least two-thirds of the unit owners present vote in favor of removal for the motion to carry, but as of July 1, 2010, Connecticut law will allow a simple majority to remove any board member no matter what the bylaws say.

If the recall vote fails, the meeting often ends right then and there, and the board members remain in office.  There is, however, no restriction on how soon or often the insurgents can initiate another recall effort.  Nevertheless, the instability and animosity caused by frequent recalls – successful or not – are bad for the entire community’s property values, morale, recordkeeping, and relationships with managers and other third parties.

If the recall vote passes, the challenged board member or members are deemed removed immediately.  Bylaws rarely specify how their replacements are installed, other than to clarify that the remaining board members cannot exercise their usual power to appoint whomever they wish to fill a vacancy.  Traditionally, the unit owners conduct a new election at the same meeting with nominations from the floor (which should be specified in the written notice and agenda for the meeting).  Whomever they elect takes office immediately and presumably serves a full term.  The recalled directors remain fully eligible to run again for any later opening on the board.

The change in leadership which follows a board recall does not itself undo completed actions of the previous board, even if those actions were what motivated the recall in the first place.  A prior board vote approving an unpopular measure would need to be timely rescinded in a new vote, for example.  A signed contract with a manager or other vendor could not simply be disavowed, but would instead continue to bind the association until its expiration date or any termination provisions are followed.  In addition, state law prohibits recalling the boards of taxing districts, with which many condominium boards have members in common.   For all of these reasons, insurgents who successfully take over a condominium board often find it is difficult or even impossible to change the community’s direction as radically or as quickly as they may have hoped.
           
Adam J. Cohen is an attorney with the Law Firm of Pullman & Comley, LLC headquartered in Bridgeport, Connecticut.  As the Chair of its Community Law Section, he represents and gives seminars to condominiums, tax districts, and other communities in matters ranging from revenue collection strategies to commercial disputes.  He is also the author of regular newsletters with circulations throughout Connecticut called Special District Update and Condominium Update.