The governing documents of most homeowners associations make a distinction between a member’s voting rights and all the other rights and privileges of members in the association. Thus, for example, it is common for an association’s governing documents to provide that a person who owns more than one separate interest in the development has voting rights for each such interest, but only one membership interest in the association. Likewise, where more than one individual owns a single separate interest, they are typically required by the association’s governing documents to designate only one of the co-owners as the voting member. Notwithstanding a requirement that co-owners vote through one designated co-owner, it is commonplace for governing documents to provide that the other co-owners are each members for non-voting purposes such as the use and enjoyment of the association’s common area facilities.
Issues concerning the rights that are associated with ownership of a separate interest can be encountered when one spouse holds title to the separate interest as their own separate property, and the other spouse is not reflected as an owner of record on the deed to the property. If an association’s governing documents limit voting rights and membership privileges to “owners of record,” the spouse whose name does not appear on the deed to the property may not be entitled to the same rights and privileges as the spouse who is on title. Such a situation could also prevent the spouse who is not on title from serving as an officer or director of the association if the association’s governing documents specify that a qualification for serving on the board of directors is that the person must be an association member that is in good standing. If an association does not intend to exclude spouses who are not on title to the separate interest from the rights that are enjoyed by the spouse that is on title, the association’s governing documents should clearly express the intended rules.
Associations should have specific provisions in their bylaws that pertain to the voting of membership interests and/or the votes of owners when the separate interests to which the voting rights are attached are owned by more than one person. Separate and apart from the provisions relative to co-ownership that are contained in an association’s governing documents, state statutes may contain a default rule that applies to member voting rights or authority when a membership interest is owned by more than one person and there are no specific provisions regarding those rights in the association’s governing documents. Absent language in such a statute which states that the statutory provision controls over an association’s governing documents, those that are provided for in the governing documents will be given priority and the provisions in the statute will only apply in the absence of coverage in the association’s governing documents. Thus, when dealing with issues dealing with owners’ rights when there are multiple owners of a single separate interest, it is important to consider both the applicable state laws, and the content of the association’s governing documents.