Ineligible candidate

If the incumbent board is facing a strong challenger, then an election may result in an undesirable candidate being elected to the board. So what can be done?

The by-laws
The Condominium Act states the election procedures in general terms but it leaves many of the details to be worked out within the corporation's by-laws.

Many by-law packages specifies that anyone who is in legal proceedings or is involved with a human rights case against the corporation, or has a relative who is legal proceedings or is involved with a human rights case against the corporation, is ineligible to be a director.

So, the solution is simple. The board instigates a court case or a human rights case against the challenger or one of the challenger's relatives.

This trick, used once that I know of, was made possible by the owners passing a law firm's by-law package that benefited the law firm and the board by:

1.	The law firm made money by selling the condo corporation a standard by-law package.
2.	The law firm makes money representing the corporation with the legal proceedings arising from the by-laws.
3.	The defendant can't be a candidate for a position on the board.
4.	The candidate, or the relative, has to pay legal fees to defend the action.
5.	Other potential opponents are intimidated by the board's ruthlessness.
6.	The directors and their supporters blame the candidate for forcing the corporation to spend money on wasteful legal fees.

This gimmick may be rarely used, but it is a slick one.

Another trick that didn't work
In Virginia, a developer controlled board tried to pass a by-law that would prevent any owner who had been in a dispute with the board from being elected or appointed a board member.

KCSA election amendment shot down by homeowners
Kingsmill motion got only one third of the vote
The Virginia Gazette
13 March 2015

JAMES CITY — An amendment to the Kingsmill Community Service Association bylaws that dissident home owners said would make it impossible for anyone who disagreed with the board to ever be elected, was defeated soundly at a special meeting held at the Marriot Double Tree Thursday night.

Accord to Michael McGurk, of the members of Kingsmill United—a group that has been at odds with service association and developer Xanterra—the amendment got 770 votes, with passage requiring about 1,550 votes.

"About a third of the community approved the proposal while two-thirds opposed or remained silent," McGurk wrote in an email to the Gazette.

One of the package of amendments would have disqualified anyone who had been in a dispute with the board from being elected or appointed a board member.

Xanterra, the developer, still controls the majority of the seats on the board.

The board delayed the new election of board members, which has been scheduled for September, again.

The Kingsmill association sued Kingsmill United and four named homeowners in an attempt to get the circuit court to rule on its interpretation of bylaws before the election. Circuit Judge Michael McGinty dismissed the suit, saying there was no issue to litigate as yet, because the election hasn't been held and the lawsuits the association fears Kingsmill United might file are "speculation." The Kingsmill association has appealed that ruling to the Supreme Court of Virginia, which has not yet agreed to hear the case.

There is a conference scheduled between lawyers in the case and one of the justices later this month to clarify the case's standing.

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