Eligibility to serve on board depends on governing documents

Nov 25, 2017

Question: My husband bought our condominium in 1999. We married in 2002. We are Florida residents who have lived here at least seven months each year for the past 15 years — we spend some time in New Jersey during the summer. I would like to run for a position on our board, but I was told that I cannot, because I’m not on the deed to the condo. Both my husband and I were married before, so our assets are kept separate. What do I need to do that will allow me to serve on the board? — L.W.

Answer: Most likely, you would need to be added to the deed — which is of course, a simple procedure, but one that might complicate your financial and estate planning.

There is no general legal requirement that board members of a community association must be owners in the community. An association is no different than any other corporation, and in fact, in some associations, a director can be completely unrelated to the community.

However, in the large majority of condominiums or HOAs, the governing documents (usually the articles of incorporation or the bylaws) will expressly state that the persons qualified to serve as directors are limited to certain categories — often stating that they must be “members.” The governing documents will further define who is a member of the association, and more often than not, it is the record title owners.

So, first you need to check the governing documents to see if this is in fact a restriction they impose. If they have no language restricting board membership, then there is nothing that would prevent you from serving. If, instead, they read as described, the only way to fix the issue would be to add your name to the deed.

The fact that you are married to you husband does not make you a record title holder or, by virtue of your spousal property rights, make you a legal owner of the unit. I have seen some governing documents that expressly allow spouses to serve on a board, and it could be that your association is reading a requirement into the law that doesn’t exist. But, if your governing documents do in fact require all board members to be members of the association, and if the documents further define the members as the record title owners, the only way to serve would be to have your name on the deed.

Q: I live in an attached house in a upscale gated community. I have contacted the homeowner’s association several times regarding the state of this house where I live. The roof is not pressure cleaned, and the landscaping is overgrown.

The homeowner’s association has strict rules regarding upkeep of the houses. I was told by the HOA that they could not force the homeowner to do anything to clean up the house. I had to have extra roof repairs done because my neighbor refused to fix the roof. These issues have gone on for years. The homeowner is seasonal and the lack of upkeep of the attached house has affected the value of my house. — D.S.

A: It is very unlikely that your HOA has no power to enforce the rules and force your neighbor to clean up their home. If the rules regarding care and upkeep exist (which is nearly always the case, whether stated expressly in the declaration of covenants, or in the rules and regulations), the HOA would have the power to impose fines against the owner, suspend their right to use the common areas, or file an action in court against the owner, asking a judge to order him or her to maintain the home.

The problem, more often then not, is a lack of interest in spending the legal fees that are required to prosecute an enforcement action or to collect fines. While the HOA Act does provide that the prevailing party in an enforcement action is entitled to recover reasonable attorney fees, the HOA could easily spend five figures during the initial litigation, and there is no guarantee of recovery. However, the HOA Act does give you, as an owner, the right to enforce the covenants and rules against your neighbor, and so, even if the HOA will not act, you could always bring legal action to compel compliance with the maintenance and upkeep requirements. It would be just as expensive to bring an action on your own, but at least it would provide you with a remedy.