Q. My HOA board has not had an election in 10 years! They keep reappointing themselves and appointing their friends to the board when there is a vacancy. Is this legal? How can this abuse of power by my HOA be stopped?
A. “Because the question refers to an ‘HOA,’ the first portion of this response presumes that the property is not a condominium,” says attorney Charles T. VanderVennet of the Law Office of Charles T. VanderVennet, P.C. “The condominium perspective will follow.
“For the most part, election requirements and procedures for non-condominium associations are controlled by the governing documents. There is little statutory guidance on those topics. However, Section 1-25 of the Illinois Common Interest Community Association Act (CICA) provides some framing for board elections and vacancy appointments: an election must be held no less frequently than once every 24 months [Section 1-25(a)]; board member terms must be limited to no more than four years though board members may succeed themselves [Section 1-25(d)]; a defined procedure for filling vacancies is provided including a method for the owners to act [Section 1-25(e)]; and a procedure for the owners to bring to court the failure to hold an election within the time period specified in the bylaws (except if the failure was due to lack of quorum after proper notice was given)[Section 1-25(g)].
“Section 18 of the Illinois Condominium Property Act (CPA) sets forth requirements for what must be contained in a condominium association’s bylaws. Provisions applicable to board elections and vacancy appointments include: there must be an election from among the unit owners of a board of managers elected at large with the terms of at least one-third of the board members expiring annually [Section 18(a)(1)]; a defined procedure for filling vacancies including a method for the unit owners to act [Section 18(a)(13)]; and there must be an annual membership meeting, one of the purposes being to elect board members [Section 18(b)(3)].
“It is unreasonable and improper for an HOA or a condominium to go so long without an election. Membership apathy may have caused the failure to meet quorum for the purpose of conducting the election at a properly convened membership meeting. Even so, energetic efforts to overcome a lack of quorum should be pursued. Options to jump-start sufficient interest among the membership to be able to convene a membership meeting and conduct the election include aggressive solicitation of proxies or the establishment and use of a proper ‘mail-in’ form of balloting procedure. Both CICA and CPA address those aspects of election procedures.
“It may be that the failure to convene an election meeting was something the board members planned or intended to happen rather than due to a lack of interest among the membership. It may be that the sitting board members simply became tired of trying to hold an election and simply gave up doing so. Interested members could offer to work with the board to help generate interest for the election. Alternatively, the members could take it upon themselves to call the meeting and conduct the election or to file a lawsuit seeking a court order mandating that the election be conducted with court oversight of the election process and results.
“I am unfamiliar with any authority allowing board members to reappoint themselves from year to year. Both CICA and CPA allow board members to succeed themselves. That means that they can be re-elected from time to time as their term of office expires.
“For both HOAs and condominium associations, the remaining board members can fill a vacancy by a two-thirds vote with the appointee serving until the next annual meeting or for the remainder of the term if 20% of the membership files a petition for a membership meeting for the purpose of exercising its right to fill the vacancy. The procedures for that membership activity are addressed in CICA and CPA, respectively.”