Reader Questions - Can Non-Residents Run? Why Can’t Spouses of Directors?Sep 06, 2020
Can a non-resident owner be on the board? A board member moved but still stayed on the board while he rented his unit. Several homeowners opposed, but the manager said it’s a new law that just came in effect, however our bylaws state that board members need to be resident owners. What would be correct – bylaws, CC&Rs, or this new law? Is there a new law?
Thank You, L.S., Anaheim
Yes, there a new law is in effect this year. Civil Code section 5105 contains new board eligibility standards. HOAs can adopt four optional eligibility standards – candidates can be required to be owner for at least a year before running, to not have a co-owner already on the board, to not be delinquent in their assessments and to not have been convicted of a felony which could affect the HOA’s dishonesty insurance. It is unclear if these optional eligibility standards are the ONLY eligibility requirements HOAs can adopt. Most lawyers are taking the conservative interpretation, that these four are the only optional standards -and residency is not among that list.
I think HOAs should be able to adopt their own eligibility standards, but this is now the law.
Best regards, Kelly
One of our directors has been on the board for a long time. A few years ago, a director resigned and the board voted the director’s wife as a board member. They have both been re-elected to the board. I have no objection to either of them being on the board as they are nice well-intentioned people. There is nothing in our CC&R‘s that prohibits this. It just seems like one home should not have two votes on the board. Any comment?
R.L., Newport Beach.
Civil Code section 5105(c)(2) allows HOAs to bar co-owners of a current director to run for the board. This is not an automatic eligibility requirement, as the HOA must amend its rules or bylaws to elect this standard. Even before this law took effect, I have long thought that spouses should not serve simultaneously on the board – it gives one membership two board votes.
It is my understanding that under the new law spouses of members not listed on the title are now not eligible to be on the board. What is the rationale behind this change? There are valid reasons for having only one spouse on the title. Those spouses may be better qualified, have more relative experience and knowledge and be more interested in serving on boards than the listed member. This is especially a problem in smaller HOAs where it is often difficult to find good board members.
Only HOA members can run for the board, pursuant to Civil Code section 5105(b). This is the one eligibility requirement which is now automatic. When I draft updated bylaws, I normally define “member” as an owner of record, as sometimes a spouse or other person will claim they are an owner due to community property or other undocumented interest. The clearest path to eligibility is to have a recorded grant deed showing that one is listed as an owner.
Best regards, Kelly
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.HOAHomefront.com. All rights reserved®.