Board of Directors

Started by ReneeD • 12 replies • 1708 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

ReneeD (Illinois)
Posts: 201

Posted:

This is an IL HOA.

QUESTION: Regarding hierarchy of governing docs and state law, which trumps?
SITUATION: Owner of record got married; husband not listed on deed but, is currently filling an open position until next election. PM says laws are pretty clear about membership/ownership and, also says that since husband is not listed as owner of record and, everyone PM has consulted says husband must be an Owner to serve on the board. Suggests husband do a Quit Claim deed.

BOARD SOLUTION: Owner of record has written a letter to the Board of Directors stating that, as owner, is naming husband as Voting Member for that unit. The Board is interested knowing if owner's letter naming husband is sufficient to remain as board member. Our Declarations states under:

MEMBERSHIP- Membership shall be appurtenant to and may not be separated from ownership of a Dwelling Unit. Ownership of a Dwelling Unit shall be the sole qualification for membership.
VOTING MEMBER- Voting Member for the Dwelling Unit shall be designated by such Owner or Owners in writing to the Board and if in the case of multiple individual Owners no designation is given, then the Board at its election may recognize an individual Owner of the Dwelling Unit as the Voting Member for such Dwelling.
BOARD- subject to the rights retained by the Developer, the Board shall consist of five (5) members, each of whom shall be an Owner OR Voting Member.”

Thank you. Renee

GlenL (Ohio)
Posts: 5,491

Posted:

Really a question for the HOA attorney but from what you have posted, it sounds like it is valid. Thankfully Ohio settled the question by changing the law to allow owners or their spouses.

Studies show that 5 out of 4 people have problems with fractions

JohnB26 (South Carolina)
Posts: 1,569

Posted:

member=owner=member=owner

voting member=which owner will vote, not the same as a proxy

i believe your documents are actually OVER specific to the point they generate confusion ... they mean that any owner can be a director, even if said owner is not the 'voting member' for the property

all owners are association members ... an association member MUST be an owner

each lot gets one vote

evidently your docs require a 'specification' of the voting member

my docs: "...membership is appurtenant to and may not be separated from ownership..."

EllieD (Vermont)
Posts: 446

Posted:

ReneeD, My interpretation, based on what you posted:

“Ownership of a Dwelling Unit shall be the sole qualification for membership”. Means what it states, only Owners can be Members.

For “Member Voting”, assuming that there is only one (1) vote per Dwelling Unit, if there are multiple owners – for example three (3) owners – there are two ways to determine which one of the three owners gets to cast the “member vote” for that Unit.

The three (3) owners can decide among themselves who is to cast the vote for their Unit and then put that choice in a writing, which has to be given to the Board, which means that only that particular owner, who has been designated in writing, can cast the vote for that Unit,

Or alternately if they do not choose to put it in writing, then any one of the three owners can be recognized as the owner who is allowed to cast the vote, which allows for the possibility that at different times a different one of the three owners may cast the vote for that Unit.

As to the Board qualifications: Your documents state that each Board Member shall be an Owner, so only Owners can be Board Members.

And it also appears to say, that in the case where a “Voting Member” has been designated in writing, then only that designated “Voting Member Owner” can be a Board Member.

I used the example of three (3) Owners of a Dwelling Unit because it is easier to visualize the “choosing of one of the three” to be the Voting Member but obviously it also applies when there are only two (2) Owners.

So for your situation, based on the Document excerpts posted, since the Husband is not on the Deed, he is not an Owner or Member, therefore he cannot serve as a Board Member, nor can the Husband cast, or be designated in writing to cast, the Member Vote for that Unit, because he is not an Owner.

You asked “Regarding hierarchy of governing docs and state law, which trumps?” But you did not elaborate. And then you wrote that the excerpts posted were from your Documents. Is there something in your state law on the subject that is different from what is in your Documents?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Renee

You said:

""""""BOARD- subject to the rights retained by the Developer, the Board shall consist of five (5) members, each of whom shall be an Owner OR Voting Member.”""""

I say if this is how your docs read and the owner can designate who the voter is, then that designated voter can serve on the BOD even if not a spouse.

My opinion. Hope it helps.

EllieD (Vermont)
Posts: 446

Posted:

JohnC46,

Re your opinion - would you elaborate a bit more?

Based on what you wrote, I am not sure if you are saying that the “designated voter” needs to be an Owner or not. Also I am not sure what to infer from your words “even if not a spouse”.

Are you agreeing or disagreeing with my interpretation?

Thanks.

ND (PA)
Posts: 792

Posted:

Ellie,

As previously mentioned, your documents appear to be overly specific to the point that they are redundantly confusing. However, based on the info that you posted from your documents, my interpretation is as follows:

BOARD will consist of 5 persons who will be either an OWNER or VOTING MEMBER.
OWNERSHIP = MEMBERSHIP which means OWNER = MEMBER = Person(s) listed on deed for the dwelling unit.
VOTING MEMBER is the designated single MEMBER/OWNER among a group of more than one MEMBERS/OWNERS associated with a single dwelling unit.

Long story short, it is my interpretation that a VOTING MEMBER = OWNER; therefore, only OWNERS can be on the Board. It is redundant to say "OWNER or VOTING MEMBER" since they are synonymous.

That being said, it is my interpretation that the husband can neither be designated as the VOTING MEMBER nor serve on the Board.

Again, a question that should also be easily clarified through your HOA attorney. Good luck.

EllieD (Vermont)
Posts: 446

Posted:

ND, Earlier I posted my interpretation of ReneeD’s Documents.

Then JohnC46 posted his interpretation following my posting. I found his post confusing in that I could not figure out whether JohnC46 was agreeing with me or disagreeing.

As to what you just posted, ND you confirmed my interpretation - that the husband can neither be designated as the VOTING MEMBER nor serve on the Board.

If ReneeD is still reading, this interpretation is not what she was hoping for.

ND (PA)
Posts: 792

Posted:

Ellie, my apologies . . . I addressed my response to you mistakenly and it should have been directed to Renee. Yes, it appears as though we have the same interpretation.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Ellie

To clarify my read of the documenrts. The owner can appoint someone to be their voting member and a voting member can be elected to the BOD..

As I read it the wife(owner) appointed him (her husband) as her voting member thus he can vote and serve on the BOD.

Many docs will say that an owner can designate who the voter will be. Done all the time if the unit is owned by several people, a trust, a corportion, etc. Most also say if owned jointly by husband and wife, one (and one only) will be designated the voting member.

EllieD (Vermont)
Posts: 446

Posted:

JohnC46,

Sorry, your reply still seems confusing to me.

Are you perhaps forgetting that ReneeD states that the husband IS NOT an Owner of the Dwelling Unit - that only the wife is an Owner.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Ellie

I understand the husband is not the owner. What I am saying is that in may docs the owner (or owners) can designate anyone they so desire to be their voting member. In some docs the person does not even have to live in the unit and/or even be related to the owner.

Now in the case of the original post, they said the designated voting member can be a member of the BOD.

Ellie, in some docs it says I could appoint you to be my (me the owner) voting member and you could serve on the BOD....and we are not married, related, friends, lovers, live together, nor even know each other...LOL

BradP (Kansas)
Posts: 2,640

Posted:

Renee

my two cents:

He is not a member because he is not on the deed...this is a question we took to our attorney and were advised in that direction. Why not amend the deed to the home and put him on there, that would solve the issues...

I do not believe the board solution would hold up in a court of law. It is one thing to give your vote to another (proxy), but this does not solve the issue of ownership.

Your docs are pretty clear on it, so unless there is a state law in Illinois he is not a legal board member.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here