A sitting board member is suing our HOA. How does the rest of the board handle it?

By OurHOA · General information · Revised November 9, 2026

What to do when a sitting HOA board member sues the association: insurer notice, written recusal, records access, closed sessions, and who runs the case.

Part of the HOA board handbook: running the board.

The director keeps the seat, but not the lawsuit

A board member who sues the association is still a board member. The other directors usually cannot vote that person off, and locking the person out of all board business can hand the plaintiff a second claim. What the board can do is fence off the one subject where this director sits on both sides: the case. In the first week, report the suit to the insurer, ask the director in writing to step back from anything touching the case, and name two other directors to work with the attorney. Keep the plaintiff's notice, vote and records access on everything else. Rules vary by state and by your governing documents. We found few court decisions on this exact situation, and the cases below come from Arizona and California, not Texas, Florida or Colorado. This guide is education, not legal advice, so have the association's attorney approve each step. The answer deadlines in our guide on what to do when an HOA is served with a lawsuit apply here too.

Ask the insurer about the insured versus insured exclusion

Send the papers to the insurance agent the day they arrive. Directors and officers policies often carry an insured versus insured exclusion. The insurance reference IRMI describes it as barring coverage for claims by one director or officer against another. Wording differs by policy, so a sitting director's suit may be covered, partly covered or denied. Email the agent: "The plaintiff in the attached suit is a current director of the association. Please tender this claim to every policy that may respond, and tell us in writing whether any insured versus insured exclusion applies, whether it treats a claim against the association differently from a claim against individual directors, and whether it matters that the plaintiff is suing as a lot owner."

Put two directors between the case and the board

The attorney represents the association, and the plaintiff is on the other side, so someone else has to give instructions. Pick two directors, preferably neither one a defendant. Check your authority first. Texas Business Organizations Code 22.218 lets a committee use board authority only if the certificate of formation or bylaws allow it, with at least two members. Otherwise, use a 22.219 committee, which has no board authority and brings recommendations to the board. Florida 617.0825 requires a resolution by a majority of the full board, unless your documents say otherwise, and at least two members. Keep the assignment narrow. In McNally v. Sun Lakes Homeowners Association (Ariz. Ct. App. 2016), the court said a board could not create a committee for the sole purpose of keeping one director out of its executive sessions. A committee limited to one lawsuit is a different and safer job. A motion: "I move that the board appoint Directors [names] as its liaison committee for [case name and number], to work with counsel and the insurer and report to the board. This committee has authority only over this case and dissolves when the case ends. Settlement decisions stay with the board." A quorum is generally a majority of the directors under Texas 22.213, Florida 617.0824 and Colorado 7-128-205, unless your documents set another number. On a three-person board, the two remaining directors make a quorum, and both must agree. If a second director steps aside, you may lose the quorum, so call the attorney first.

Get the recusal in writing, because statutes may not force it

Director conflict statutes were written mainly for contracts. Texas Property Code 209.0052 keeps a director out of the discussion and vote on that director's own contract. Florida 720.3033(2) and 617.0832 address contracts and transactions. Colorado 38-33.3-310.5 applies C.R.S. 7-128-501, which covers a contract, transaction or other financial relationship. A lawsuit does not fit neatly into any of them, so do not tell the director a statute requires recusal unless your attorney confirms it. Check your bylaws too, and see our guide on writing an HOA conflict of interest policy. Have the attorney send a letter, addressed to the director's lawyer if there is one: "Because you are the plaintiff in [case], the board asks you to agree to the following until the case ends. You will leave any part of a meeting where the board discusses the case with counsel or decides anything about it, and you will not vote on those items. You will not receive privileged communications about the case. Nothing in this letter limits your notice, vote or access on other association business. Please sign and return this by [date]."

Sort records into three piles

Directors usually have wider access than owners, so a flat refusal is risky. Texas Business Organizations Code 3.152 lets a governing person examine books and records for a purpose reasonably related to service in that role, and a court can order access and award attorney's fees. In Tritek Telecom v. Superior Court (2009), the court held that a director had no right to privileged documents generated in defending the suit that director filed. In Fowler v. Golden Pacific Bancorp (2022), the court described limits on inspection as reserved for extreme cases. So sort each request: - Ordinary records, such as the ledger, minutes, contracts and vendor files. Release them as you would to any director. - The case file, meaning letters from counsel, strategy, settlement figures and insurer correspondence. Hold these in a folder only the committee and the attorney can open, and delete nothing. - Records the suit is about, such as the violation file on the director's lot or old board emails on the dispute. Send the request to the attorney, because these may have to come through discovery. Log each request, the pile it went in and the date you answered.

Run the closed session so the record holds up

Keep sending the plaintiff notice of every board meeting. McNally treated notice to all directors as part of a director's right to participate. List the item as pending litigation. Texas 209.0051(c) allows an executive session for pending or threatened litigation, and decisions made there must be summarized orally and recorded in general terms. Colorado 38-33.3-308(4)(b) allows one for consultation with counsel on pending court proceedings. Florida 720.303(2)(b) lets the board meet its attorney about pending litigation without opening the meeting to members "other than directors," so that statute gives you no ground to bar a director. There, you are relying on the signed recusal. Have the chair announce the item, wait for the plaintiff to leave, and have the secretary note the time. Minutes can read: "Director [name], plaintiff in case [number], left the meeting at 7:42 p.m. before the executive session on pending litigation and returned at 8:05 p.m. The board received advice from counsel and approved payment of the policy retention of up to $[amount]." Florida 720.303(3) also requires the minutes to record each director's vote or abstention.

If the director will not step back

Do not pass a motion banning the person from executive sessions. The McNally board did that, and the court held the board had no such power under Arizona law or its bylaws. The court pointed instead to an injunction against disclosure or a court action to remove the director. Your other options: - Change how advice arrives. Counsel can decline to give privileged advice with an adverse party in the room and can brief the committee in a memo. - Change officers. If the bylaws let the board choose officers, a plaintiff can lose the president or treasurer role and keep the seat. - Ask the owners. Texas 22.211 sends you to the bylaws or the electors. Florida 720.303(10) allows recall by a majority of the total voting interests. Colorado 38-33.3-303(8) allows removal by 67 percent of those present and entitled to vote at a meeting with a quorum. Get advice first, because the plaintiff may call it retaliation. See our guide on how to remove an HOA board member. - Check for a seat that is already vacant. In Florida, 720.306(9)(b) says a board member more than 90 days delinquent on any monetary obligation to the association is deemed to have abandoned the seat. A plaintiff withholding dues could hit that line, but have counsel confirm it before anyone acts. Never declare a seat vacant by board vote unless your documents clearly allow it.

A sample first two weeks

- Day 0: Send the papers to the agent and the attorney, and calendar the answer deadline. - Day 1: Create a new email list and case folder that leave out the plaintiff. - Day 2: The attorney sends a hold notice to every director, including the plaintiff, to keep all emails and texts on the dispute. - Day 3: The attorney sends the recusal letter. - Day 7: Hold a noticed meeting. Vote on the committee in open session, and take advice in executive session with the plaintiff out of the room. - Day 14: The committee reports the insurer's position and the next court dates.

Mistakes that turn one lawsuit into two

- Using the shared board email. One reply-all puts your attorney's advice in the plaintiff's inbox. Our guide on a director who leaks executive session information covers the cleanup. - Going after the plaintiff's lot. A sudden violation letter or a stalled architectural request becomes evidence. Handle that owner's file as you would any other, and tell the attorney before acting on it. - Leaving the wall up forever. When the case ends, dissolve the committee by vote and note it in the minutes.

Sources

These guides are general education for HOA boards and residents, not legal, tax, or financial advice. Rules vary by state and by your community's governing documents - check with a professional for your situation.

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