Removing Common Interest Community Association Board Members, 0222 COBJ, Vol. 51, No. 2 Pg. 38

PositionVol. 51, 2 [Page 38]

51 Colo.Law. 38

Removing Common Interest Community Association Board Members

No. Vol. 51, No. 2 [Page 38]

Colorado Lawyer

February, 2022



This article discusses how to remove members of a common interest community association's executive board.

Lately it seems that common interest communities (communities) are ubiquitously involved in litigation due, in part, to the alleged action or inaction of the community association's (association) executive board (board). There may be a better way to handle some of these disputes: seek removal of ineffective members of the board. The removal process offers a non-litigious and cost-effective way for concerned unit owners to effect immediate change in the handling of the community's affairs. It can also inspire community involvement.

From a legal standpoint, the removal process is modestly complex. The practical impediment is whether the party seeking to remove the board member has the fortitude and drive to obtain the requisite community support to achieve this objective.

To properly advise clients seeking board member removal, practitioners must understand the protocol for removal and anticipate potential impediments to a removal effort. This article describes the ins and outs of the removal process.1

Why Remove a Board Member?

Generally speaking, removal is an appropriate option when unit owners are dissatisfied with their association's operation. This may occur, for example, where the board spends excessively on capital improvements and continually increases annual assessments, or it refuses to repair, replace, or properly maintain common elements. Any act or omission by the board that prompts a groundswell of attention by the association membership is an appropriate opportunity to seek removal of one or more board members. Of course, personal animosity is never a good reason to campaign to remove a board member who is voluntarily serving in a thankless position. Seeking to remove someoneforpersonalreasons thwarts the sense of community that a removal vote can instill and is likely to fail, resulting in the waste of time, effort, and money.

“ Generally speaking, removal is an appropriate option when unit owners are dissatisfied with their association’s operation. This may occur, for example, where the board spends excessively on capital improvements and continually increases annual assessments, or it refuses to repair, replace, or properly maintain common elements. ”

Statutory Authority A "common interest community"2is certain real estate described in a "declaration"3 that compels an owner of a "unit"4 therein to "pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration."5

An "association" is a "unit owners' association organized under C.R.S. section 38-33.3-301."6 The association membership is made up exclusively of all unit owners.7 The association must be organized by the date the first unit in the community is conveyed to a purchaser, and it maybe organized as a nonprofit corporation.8 In general, the association's most imperative charge is the maintenance, repair, and replacement of the common elements, unless otherwise provided in the declaration.9 An "executive board" is the body "designated in the declaration to act on behalf of the association."10

Under the Colorado Common Interest Ownership Act, CRS §§ 38-33.3-101 et seq. (CCIOA),11 the process for removing a board member differs according to the type of community12 involved and when the community was created. The Condominium Ownership Act, CRS §§ 38-33-101 et seq. (COA), applies to "pre-existing" communities, which are condominiums13created before july 1, 1992. The Colorado Revised Nonprofit Act (CRNA), CRS §§ 7-121-101 et seq, applies to non-condominium communities created before july 1, 1992. Regardless of the type of community, CCIOA applies to communities created on or after july 1,1992.14 Communities created before july 1, 1992, may elect to be subject to all CCIOA provisions.15

Does the Removal Process Apply?

If a board member was properly seated on the board, the removal process applies. But the removal process may not be necessary if a board member was not properly seated on the board in the first place. This can happen in many situations, including where a board member was elected at a meeting that was not properly noticed (e.g., notice was issued too early or late, or was not sent to the entire membership)[16] or lacked a quorum;17 or where a board member's addition violates the articles of incorporation or bylaws by exceeding the maximum number of allowed board members18 or not satisfying good-standing requirements.19In these scenarios, the member was never technically on the board and thus need not be removed. Rather, the board should declare the position vacant and hold an election or make an appointment, depending on the circumstances.20

Even if a board member was properly seated, his or her board membership may be automatically terminated without invoking the removal process where (1) the board member resigns;21 (2) a replacement member has been elected, appointed, or designated;22 (3) the board member becomes disqualified;23or (4) a court orders the board member's removal under CRS § 7-128-109 due to fraud or other abuse of authority.

Assuming the board member is properly seated and the above automatic termination mechanisms do not apply, the board member may only be removed by following the applicable removal requirements for pre-existing or CCIOA communities.24While the statutory guidance for this process is helpful, it is relatively nominal for both pre-existing and CCIOA communities.25 Thus, practitioners must pay close attention to the community's applicable and governing documents, especially its bylaws.26

Removal for Pre-Existing Communities

Statutory guidance for removing a board member for pre-existing communities is limited. Under COA, the community's bylaws must contain "the method of removal from office of members of the board ... ."27 In other words, the bylaws dictate the protocol. Nonetheless, CCIOA subjects pre-existing communities to certain of its provisions,28 namely "principles of law and equity, including, but not limited to, the law of corporations,"29 such as CRNA.

CRNA addresses removal30 and provides that a board member elected by a voting group of members or the board31 may be removed by the voting members with or without cause, unless the bylaws provide that a board member may be removed for cause only.32 A board member elected by the voting members may be removed by the voting members "only at a meeting called for the purpose of removing that director, and the meeting notice shall state that the purposes, or one of the purposes, of the meeting is removal of the director."33Except for cumulative voting, a board member may only be removed if the number of votes cast to remove would be sufficient to elect the board member.34

If a board elects a board member,35 which is virtually unknown in the context of residential communities,36 the board may remove the elected board member if such member was not elected to fill a vacancy.37However, if the board member was elected to fill a vacancy, only the association members may vote to remove the board member without cause.[38]

Removal for CCIOA Communities

The starting point for removing a board member for a CCIOA community is CRS § 38-33.3-303(8),39 which provides:

Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by a vote of sixty-seven percent of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant or a member elected pursuant to a class vote under section 38-33.3-207(4). Thus, there are two classes of board members for removal purposes: those appointed by the declarant, and those elected pursuant to a vote of the association membership. Generally speaking, if a declarant properly appoints a board member, only the declarant may remove such board member during the declarant control period.40 The declarant's broad discretion here is limited by a compulsory statutory protocol requiring the phased replacement of board members. A certain percentage of the board must be elected by the membership at large as defined percentages of units within the community are sold to third-party purchasers.41

Board members who are elected by the membership (as well as those appointed by the declarant but whose terms continue after declarant control ends) may be removed under CRS § 38-33.3-303(8) by a vote of 67%42 of all members present and entitled to vote at any meeting of the membership at which a quorum is present. For board members elected by a class vote under CRS § 38-33.3-207(7), the sole difference is that the vote is held by the appropriate class members only. Therefore, in CCIOA communities, the members may remove a board member with or without cause.43

No other CCIOA provisions directly address removing a board member. Nonetheless, CCIOA, like COA, requires that the association's bylaws prescribe the "manner" by which a board member may be removed.44 CRS § 38-33.3 -303(8) provides a non-waivable manner by which a board member may be removed45 but does not preclude the bylaws from prescribing non-conflicting alternative methods.

As stated above, and similar to pre-existing communities, CCIOA communities are subject to principles of law and equity, including the law of corporations, to the extent these do not conflict with CCIOA's terms.46 Practitioners should thus become familiar with CRNA's relevant provisions, namely article 128, "Directors and Officers." As detailed below, these provisions offer useful gap-filling guidance when delving into the abyss of removing a...

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