Appointment of a Provisional Director for an HOA
There are situations where a corporation, including a homeowner association, finds it necessary or desirable to have a provisional director appointed by the Superior Court.
If a corporation, including a homeowner association, has an even number of directors who are equally divided and cannot agree as to the management of its affairs, so that its activities can no longer be conducted to advantage, or so that there is danger that its property, activities, or business will be impaired or lost, the Superior Court of the county may, notwithstanding any provisions of the Articles or Bylaw, appoint a provisional director. Action for such appointment may be brought by any director or by members holding not less than 33 and 1/3 percent of the voting power.
If the members of a corporation are deadlocked so that they cannot elect the directors to be elected at the time prescribed therefor, the Superior Court of the county may, notwithstanding any provisions of the Articles or Bylaws, upon petition of members holding 50 percent of the voting power, appoint a provisional director or directors, or order such other equitable relief as the court deems appropriate.
A provisional director shall be an impartial person, who is neither a member nor a creditor of the corporation, nor related by consanguinity or affinity within the third degree according to the common law to any of the other directors of the corporation or to any judge of the court by which such provisional director is appointed. A provisional director shall have all the rights and powers of a director until the deadlock in the board or among members is broken or until such provisional director is removed by order of the court or by approval of a majority of all members. Such person shall be entitled to such compensation as shall be fixed by the court unless otherwise agreed with the corporation.
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