BOARD MEMBER QUALIFICATIONS: Can a Delinquent Board Member Really Serve?

Association clients are often frustrated by the lack of limitations on board member qualifications.  The typical questions we receive are:

1. Can spouses really serve on the same board?
2. Can delinquent board members serve?
3. Can delinquent owners be elected?
4. Can delinquent board members vote?

The answer to all of those questions, depending on the language of your governing documents, is “yes”.

Most articles and bylaws have some language about board qualifications.  However, it may be very broad.  There may be no requirement for a board member to be a homeowner.  There is nothing in the statutes.  There may be no prohibition in the governing documents on spouses or other co-owners serving on the board at the same time.  Therefore, in the absence of the prohibition they can be elected and serve.  Again, the statutes do not address the issue.  Some associations would like to restrict board members to on-site residents – no off-site owners.  The situation is the same.  You would have to amend the documents to address these issues.

The biggest complaints in this area are about delinquent board members.  Surprisingly, few association governing documents address the issue.  Most have language that allows suspension of voting rights for owners (association members) who do not pay assessments.  But that does not affect board member rights.  In the absence of contrary language in the documents, an owner who is delinquent can run for the board, be elected, and serve on the board.  As above, you would need to amend the articles or bylaws to prevent delinquent owners from serving.  Once on a board, a delinquent member can vote as a board member even though he or she cannot vote as an association member.  Board duties are different and board members must be able to act.  Their voting rights are not the same as membership voting rights. 

We have had a few associations adopt Codes of Conduct that board members are asked to sign.  Such a Code could include language where the board member agrees to vacate his or her office after missing X number of meetings, or after being X months delinquent.  This may work as a practical matter, but is not as effective as having the appropriate language in the primary governing documents.

If you have any questions about board member qualifications please contact James Hazlewood or another attorney in our office.