It is commonplace for the governing documents of a homeowners association to have provisions that establish qualifications for those who serve on the association’s board of directors. The established qualifications for serving on an association’s board would generally be found in the bylaws but they could also have been included by the drafters of the documents in the association’s declaration or covenants, conditions, and restrictions (CC&Rs).
With the exception of qualifications that are discriminatory, an association can determine the Established Qualifications that it deems to be appropriate for serving as a director. Discriminatory qualifications that might prevent a person from serving on an association’s board of directors based on race, national origin, ethnic background, age, sexual orientation, religious beliefs, sex, or disability are prohibited under federal law. Common association qualifications for serving as a director include:
- The person must be a member of the association (this requirement typically prohibits renters and non-member spouses from serving on boards);
- The person must be in good standing (not delinquent in payments owed to the association for assessments or fines, and not have unresolved violations of the association’s governing documents);
- The person must not be a co-owner of a separate interest with another person who is also a director;
- The person is not a convicted felon;
- The person must not be involved with litigation with the association or its officers and directors.
Associations that do not have provisions in their governing documents relating to qualifications for those wanting to serve as directors can amend those documents (preferably the bylaws) to incorporate reasonable qualifications for members of their board of directors. Restrictions that have been found to be reasonable are related to the protection, preservation or proper operations of the homeowners association. As an alternative to going through the more costly process of amending governing documents through a process that necessitates a vote by all of the association members, some associations may seek to adopt director qualifications by creating rules that are approved by the association’s board of directors. Unless adopting such rules is clearly within the authority of the association’s board of directors, the better approach is to adopt director qualifications through an amendment to the governing documents that is voted on by members of the association.
While it is important for association directors and management personnel to be aware of the importance of having established qualifications for serving as a director of their association, the process of implementing the appropriate qualifications should not be undertaken without the assistance of legal counsel who can appropriately guide the association through the process.
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