Q. I am a member of the board of directors of our 140-plus unit condominium. Many of the board members are unable to obtain copies of the financial statements. The board meetings are not announced and thus I often do not learn of these meetings until after they occur.
The board will continue to serve until late next year, when there will be an annual meeting and another election. A number of owners have approached me to assist them in recalling several board members, but when we circulated newsletters and other information to the owners, we were threatened with libel suits by several of the other board members.
What legal rights do we have?
A. I have heard similar complaints from unit owners throughout the country. Regrettably, many members who serve on boards of condominiums, cooperatives or homeowners associations are on ego trips. They want to be called "Mr. or Ms. President." They do not understand--or they fail to recognize--that there is a fiduciary responsibility to the constituents who elected them.
In fairness, the great majority of directors are hard-working, fair and honest. But many do not understand their role.
To see what is required of your board, start by reading the law of the jurisdiction where your condominium is located. See if there are requirements that meetings must be open or that proper notice must be given. It may be that all of the meetings held without notice were improper, and thus decisions made at them may not be valid.
Even if your state law is silent on this question, you should read your association documents. You may find some guidance in those basic materials, which include the declaration and bylaws, or the covenants, conditions and restrictions.
Even if there is nothing specific in your association's documents, you still have the right to demand that the membership take a vote on the issue of whether board meetings should be open. This vote could come at the annual meeting, or (pursuant to your bylaws) you could also call a special meeting for the purpose.
If your association documents are silent on the issue, the board of directors must follow the wishes of the majority of the association.
With respect to your inability to obtain financial information, I am quite confident that you will find some language in your documents giving you the absolute right to inspect and review financial documents of the association. Regardless of whether you are a board member, you--as an owner who pays your percentage share of the operating budget--are entitled to review all of the financial books and records of your association.
You should send a demand letter to the other board members, by registered, return receipt mail, and give them 10 days in which to make these documents available to you for your review and inspection. You also should have the right to copy those materials, although you may be asked to pay copying costs.
If the board refuses to give you access, you should consider filing a lawsuit against the board. You should also talk to other owners to see if they will join you in this litigation. The legal fees can then be divided up among everyone who contributes to a "legal defense fund."
You also indicate that you are being threatened with a libel suit when you and others speak up in opposition to your board of directors. You have an absolute, constitutional right of free speech. As long as what you say or write is truthful, you should have no fear of communicating your concerns--and your opinions--to other members of the association.
If other members of the board of directors do not like what you are saying, they have the right to respond. You cannot, however, be threatened or harassed merely because you are exercising your constitutional right to speak freely and to criticize and comment on the actions (or inactions) of those you have elected.
If the situation is so bad, you have the right to call for a special meeting for the purpose of recalling one or all of the board members. Your bylaws will spell out the legal requirements for such a special meeting. This is not easy. Many owners are apathetic or reluctant to protest. You must mount a major political campaign, not only for the purpose of recalling the existing board members, but also to present your own slate of directors.
Invite your neighbors in for coffee or tea to discuss your political campaign. Recruit as many neighbors as possible to be team captains to mount the recall campaign. You cannot do it alone. After all, your bylaws probably require that you need at least a 51 percent majority vote to successfully recall members of your board.
And, as is the case in federal or statewide elections, you will find that the incumbents will have the stronger hand, since they are now in office.
It is not easy to "throw the rascals out." You have a significant investment, though, in your property and thus your association. This investment must be protected. That is the message you should send to all of the other owners, including your fellow board members.
One note of caution. You are a board member, too. While you have the right to speak freely--and to obtain access to all of the financial documents--you should also recognize that your position is different from that of other owners. If you make speeches, or send out communication to other owners, make it clear that you are speaking as an individual, not as a board member.
Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.