Facts of the Case. An Association’s Bylaws provided that a director could be removed from office by a super majority vote of the members representing 60 percent of the total voting power of the Association. However, the Corporations Code states that any director of such a corporation could be removed without cause if the removal was merely approved by an affirmative vote of a majority of a
quorum.
The Association’s secretary received a petition from Association members seeking to recall a certain director. A recall election was held, and a majority of the quorum (but not a 60% supermajority of the association’s total voting power) voted in favor of recalling the director.
The director who was the subject of the recall sued the association, claiming (among other things) that she was not properly recalled because the super majority voting requirement in the Bylaws was not satisfied.
Issue for Decision: Is a Bylaw provision requiring approval by a supermajority of members to recall a director enforceable?
Opinion of the Court. In the unpublished opinion of Autry v Villa Riviera Condominium Association (November 26, 2008), the Court of Appeal ruled that such a supermajority Bylaw recall provision is not enforceable.
Reasoning of the Court. The court noted that the Association’s Bylaws included a clause which stated that any provisions which conflict with California law are void “upon final court determination to that effect.” Additionally, as a matter of law, a homeowner association may not enforce covenants, codes and restrictions that violate statutory or common law.
Corporations Code sections 7222(a)(2) and 5034 specifically state that in a corporation with over 50 members, a director can only be removed without cause by the affirmative vote of a majority of a quorum. Since the super majority recall provision in the Association’s Bylaws directly conflicted with these two Corporations Code sections, the Villa Riviera court concluded that “[u]nder these statutes, the super majority requirement of the bylaws was unenforceable.”
Comments. This case arose in the context of an association with over fifty members which did not have cumulative voting. The requirements for recalling a director in an association with under fifty members are contained in Corporations Code section 7222(a)(1), and the requirements for recalling a director elected pursuant to cumulative voting are set forth in Corporations Code section 7222(b). Under the reasoning of the Villa Riviera case, those Corporations Code provisions should also prevail over conflicting Bylaw recall provisions.