Chapter 7 - § 7.6 • THE "APPOINTED" BOARD

• Jurisdiction: Colorado

§ 7.6 • THE "APPOINTED" BOARD

A topic that receives scant attention is the "unelected," appointed board. These boards are usually found in smaller associations, those with fewer than 150 units. They are even more common when those associations have a large percentage of elderly residents, vacation homeowners, or investor owners. In these small communities, there are too few owners willing and able to serve on the governing board. Only rarely are there contested board elections. Instead, when a sitting board member resigns or a member's term expires and he or she no longer wants to serve, the association has to "go begging" for board members. In the case of a resignation, the sitting board, under the authority granted it by the CCIOA,⁷⁰ appoints a replacement. Where a term expires, the sitting board prevails on a unit owner to "run" for the opening and that person is "elected" without opposition.

These boards become "self-perpetuating," made up of members who usually continue to serve without ever standing for election. Nonetheless, the board has the full and considerable powers granted by statute.⁷¹ If the board is attentive to the unit owners' concerns, the fact that it is "unelected" will not matter. However, sometimes an unelected board will make a decision that is unpopular with a great majority of the owners. When those owners object, the board members will assert — with legal justification — their statutory authority. The disgruntled owners are left with two choices: attempt to recall the board members or replace them at the next election. The latter often results in a Pyrrhic victory since the unpopular action will have already gone into effect. The former is more than a little problematic. First, removing or recalling a board member is a herculean task requiring a super-majority vote of the owners.⁷² Second, in a small community where everyone knows everyone else, a recall campaign can tear the community apart and create lasting hard feelings; thus, even those who are unhappy with the board may be unwilling to actually participate in their removal. The ill will is one thing in an ordinary corporation, but in a residential common interest community, the antagonists must live together when it is all over.

In the eyes of many unit owners, an unelected board lacks "moral authority" to act on their behalf when large expenditures or controversial matters are considered. Indeed, unit owners may believe — with some justification — that there is an...