CODES

The “Associations” column below is reprinted by permission of authors Stephen Glassman and Donie Vanitzian.

Copyright S. Glassman and D. Vanitzian

                                                                                        (from May 23, 2010 L.A. Times) 

               STEPHEN GLASSMAN and DONIE VANITZIAN

 Question:  The board of our homeowner’s association has barred an elected director from attending any of the board’s closed executive sessions. Do the other board directors have the legal right to exclude a director?

 Answer: A homeowner association board director is entitled to all the rights and privileges of the office, including attending all the meetings.        When one director disagrees with the others or sees things differently from the majority, that is not a reason, legal or otherwise, to shut out the director.

            There is no provision in the Davis-Stirling Act (CA Civil Code sections 1350 through 1378) or the California Corporations Code that allows for one group of directors to simply oust or shut out any other director or group of directors from any of the association’s business. Doing so is a violation of board member’s fiduciary duty to the titleholders and to one another.

            The Davis-Stirling Act and the Corporations Code do describe certain circumstances when a board director may be excluded, but unless those conditions are met it is illegal to exclude a duly elected director. The only statutory reason for excluding a director is if a court of competent jurisdiction has either found the director guilty of a felony or has declared the director to be of unsound mind.

            Some governing documents require a director to attend a specific number of board meetings and, if the director misses this specified number of board meetings, the director may be removed from the board.

            Generally, such conditions are enforceable. If sections in the governing documents conflict with the law, those sections should probably be declared invalid when challenged in court.

            A careful reading of the documents also is required to determine whether there are any other conditions imposed on serving as a director, whether those conditions are fair and reasonable, and whether they have been met or not.

            Before excluding a director and perhaps subjecting the association to liability as a consequence, boards should first determine whether a director has violated any conditions and, if so, check to see whether the governing documents provide a legal remedy, such as exclusion, for that alleged violation.

            As a last resort, the excluded director can take the matter to court. If the court finds the directors were acting outside their authority, it could order the individual directors themselves to pay the fees and costs. The court could also order the individual directors to pay fines for violating their fiduciary duties.

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Send questions to Box 11843, Marina del Rey, CA 90295 or e-mail

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