June 20, 2016

MR. RAINIER EVIDENTE

Building Administrator
GALERIA DE MAGALLANES CONDOMINIUM
ASSOCIATION, INC.
Re:

Legal Opinion on Whether or Not Directors in a Holdover

Capacity Ought to be Included in the Annual Election of
Directors whose terms are expiring.

-----------------------------------------------------------------------------------------------Dear Mr. Evidente:

This is with reference to your request for a legal opinion on whether or not
directors whose terms have already expired but continue to sit in the board
in a holdover capacity ought to be included in the annual election of directors
whose alternating terms are expiring.
As mentioned in your letter, there was no quorum during the 2015 Annual
General Membership Meeting. Consequently, there was no election held as
regards those directors whose terms expired 2015. Thus, at present while
these directors with expired terms still sit in the board and dispense the
duties of a director, they continue to do only in a holdover capacity.
As provided for in the By-Laws of the Galeria De Magallanes Condominium
Association, more particularly Section 2, Article II which is reproduced
hereunder for easy reference
Article II
MEMBERSHIP
Section 2. Annual Meeting: Vote of Members The
annual meeting of the members of the Association and the
election of directors shall be held on the first Saturday of
April of each year at 10:00 a.m., unless otherwise set by the
Board of Directors for valid reasons. x x x x

It is abundantly clear that the Association is required under its By-Laws to

call for an annual general membership meeting every year and elect its
directors. Nowhere in the By-Laws does it provide that a director in a
holdover capacity shall serve the full two-year term. In fact, the Corporation
Code makes it clear that such director merely holds office until his successor
is elected and qualified.
Section 23. The board of directors or trustees. Unless
otherwise provided in this Code, the corporate powers of all
corporations formed under this Code shall be exercised, all
business conducted and all property of such corporations
controlled and held by the board of directors or trustees to be
elected from among the holders of stocks, or where there is no
stock, from among the members of the corporation, who shall
hold office for one (1) year until their successors are
elected and qualified. xxxxxxx

To be sure, the case of Barker v. National Life Assn, 183 Iowa 966, 166 N.
W. 597 as cited in Fletcher, Cyclopedia of the Law of Private Corporation,
Permanent Edition, Volume 2 p. 100, held that:
Where the term of office is for two years and until a
successor is elected, failure to hold a meeting to elect a successor
at the regular time does not entitle a holdover officer to another
two-year term

Additionally, the case of Lasandra Romano and Howard Rosenman v.

Emerald Preserve-Sumerlin Homeowners Association decided by
Department of Business and Professional Regulation in the State of Florida,
provides thatHowever, Section 617.0806 states in part, Each director
shall hold office for the term to which he or she is elected or
appointed and until his or her successor has been elected or
appointed and qualified or until his or her earlier resignation,
removal from office, or death.. Holdover directors are not
automatically appointed to the remaining portion of the term;
they only serve a portion of the term until a replacement can be
elected.

In view of the foregoing, it indubitably necessary to include the terms of

those directors acting in a holdover capacity aside from the directors whose
terms are expiring this year at the election of directors during the next
annual general membership meeting. However, for those directors to be
elected to replace the holdover directors, they will only serve the remaining

portion of the two-year term or until next year only. This is to give effect to
the staggered terms as provided for in the same By-laws, to wit:
Article III
BOARD OF DIRECTORS
Section 1. Composition: Election and Term of Office The Association x x x .
The elective Directors shall be elected for a term of two
years to be arranged on a staggered basis so that there will
be a two-group alternation in the expiration of the term of
Directors. x x x

Very truly yours,

MARCO M. LAGDAMEO