Help with this argument and response...

Started by GreggK2 • 30 replies • 2129 views

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

⚡ Takes 30 seconds

Already a member? Log in

GreggK2 (Kansas)
Posts: 86

Posted:

While I am the owner of my house, my fiancee is not on the title so therefore she cannot be on the board. After all, this is a home owners association. I understand why she cannot be on and I do agree with it. Now, last week i received an email from the fiancee of a home owner. She wanted to be on the board but I explained to her that she cannot since she is not on the title of her house. This was her response:

Forgive me but that’s ridiculous! We bought the house together and while not on title I am still a major contributor to the household and responsible for the upkeep. Furthermore, I think it is unfair to allow “non-homeowners” the ability to serve on the landscaping or architectural committees and not allow them to serve on the board. I work for a major law firm in Kansas City and felt that my experience would be of benefit to the board. With regards to our bylaws, they are outdated. Bylaws are also subject to change. Having served on many boards, someone, such as myself, can bring forth a motion (aka “ move” ) that the bylaws are changed to allow “Partners” (non-owners) not on title/deed to be permitted to serve on the board. Should the motion receive a second then you as the presiding Chair of the Board would “state the question” and allow the motion/arguments to be heard at which point you would ask who is in favor of the motion and it would go to a vote by the homeowners.

I already know that my response is going to be the same as before. The consensus of the board, and probably the entire subdivision, is that you must be a hme owner to serve on the board. I'd like other arguments to go along with this so I can provide her with a response she will understand.

RickP2 (Idaho)
Posts: 12

Posted:

It doesn't matter what the consensus of the entire Board or the community is....it only matters what your governing documents state and many governing documents do not require you to be a homeowner. Read all the documents thoroughly (Articles, ByLaws, Declaration) to be certain what they state, don't make the assumption that because it is a homeOWNERS association you must be on the title.

Simply not correct......

AnnH5 (Florida)
Posts: 304

Posted:

Why don't you just put her on the title? Problem solved.

GreggK2 (Kansas)
Posts: 86

Posted:

No...this is NOT about my fiancee. I was simply saying I have a fiancee but she cannot be on the board and she understands why. The email is from another woman, who is the fiancee of a home owner.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By AnnH5 on 06/12/2015 10:37 AM
Why don't you just put her on the title? Problem solved.

Might not be quite as easy as that if you have a mortgage.

=============================================
I agree with Rick. Our by-laws say that directors don't have to be members (owners). This may stem from the fact that under declarant control, the board members would be the developer and his appointees, who would probably not own property in the development.

The self-appointed expert is also probably wrong as far as amending the by-laws, ours at least require a majority of members at a members meeting with a quorum.

Escaped former treasurer and director of a self managed association.

GreggK2 (Kansas)
Posts: 86

Posted:

WHOA!!!! I think Rick just hit something that I was not familiar with. Before I became president, I asked about whether both me and my fiancee could serve on the board. I was told, point blank, that she could not be on the board because she was not on the title. I took the board for their word. HOWEVER, this is in our bylaws:

Section 2. Number and Qualification of Directors. The authorized number of directors of the corporation shall be not less than one, nor more than fifteen, until changed by amendment by this bylaw. Directors need not be members.

If I am reading it right, and am understanding Rick, isn't it saying that the person sending me the email CAN be on the boar since our bylaws do say that Directors need not be members?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Gregg,

This reminds me of a recent AZ court of appeals opinion regarding titles to motor vehicles. The court held that having a title does not necessarily mean that a person is the owner; it only means that he presented sufficient information to the motor vehicle division to cause them to issue a title.

Who owns a particular property is a question best left to the courts and not HOA's. In your own case, for example, your finance may have a claim of ownership in your home if she has contributed to paying for it or maintaining it.

If your governing documents refer to "owners" instead of "deed-holders" then your fiance is likely an owner as is the other person's fiance. You might want to clarify your bylaws as to whether "owner" means anyone who claims an interest in the property or whether it means only those persons whose names are on the recorded deed.

GreggK2 (Kansas)
Posts: 86

Posted:

And this is where I see a conflict between one governing doc and another. While our bylaws say this:

Section 2. Number and Qualification of Directors. The authorized number of directors of the corporation shall be not less than one, nor more than fifteen, until changed by amendment by this bylaw. Directors need not be members.

Our Area Homes Declarations says:

(d) “Owner” means the record owner(s) of title to any Lot, including the Developer.

So an owner is someone on the title but our bylaws say a director does not need to be a member.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By GreggK2 on 06/12/2015 11:08 AM
And this is where I see a conflict between one governing doc and another. While our bylaws say this:

Section 2. Number and Qualification of Directors. The authorized number of directors of the corporation shall be not less than one, nor more than fifteen, until changed by amendment by this bylaw. Directors need not be members.

Our Area Homes Declarations says:

(d) “Owner” means the record owner(s) of title to any Lot, including the Developer.

So an owner is someone on the title but our bylaws say a director does not need to be a member.

She can be a board member. Let her run.

Sikubali jukumu. Read all posts at your own risk.

EllieD (Vermont)
Posts: 446

Posted:

How do your documents define Member?

RickP2 (Idaho)
Posts: 12

Posted:

Greg,

Those two statements have nothing to do with the issue.....the Declaration is simply clarifying that the Member is the owner of record (title holder).

While this statement from the Dec does not preclude your fiance or the other fiance from being a Director, you want to read the Articles of Incorporation as well as the Declaration thoroughly. While it is the ByLaws which typically addresses this issue, as in your case, sometimes the Article and/or the Declaration will also address it and it may be different.

You will also want to confirm somewhere in one of those three documents it will typically state which documents have authority when there is a conflict. Usually, and I stress USUALLY, the ByLaws are called the Weak Sister in the documents, so if there is a conflict, USUALLY the Declaration or the Articles will rule. So if you find a conflict, next starting looking for the clarification on which document has authority.....

if it is determined that you do not have to be a member, which it appears it does, your next battle will be with those who do not feel a non-member should be ruling their association. The thing to stress is that it is more important to elect/appoint the right person than the right title. If either of these women are qualified and will do a good job, they are who you should elect/appoint.

Good luck

DavidY3 (California)
Posts: 18

Posted:

You can appoint her as an agent to represent your home as a member of the association. This works the same way as Master Associations where the owner of a building can appoint the management company to be their agent to attend meetings and represent them the "owner." In your case your fiancee is representing you the "owner"

JM10 (California)
Posts: 503

Posted:

I don't know what you CC&R says and what the laws are in Kansas, but when I was a member of the HOA, directors had to be members and members were owners, HOWEVER, the officers didn't have to be directors or members.

Although typically, the president is a director, the treasurer or secretary didn't have to be.

I do however think that a fiancee is one thing and spouse is a different thing. So that might be tricky since as a fiancee who is not on the title, she does not have a legal status on the real estate, but as a spouse, she does have some legal status.

RickP2 (Idaho)
Posts: 12

Posted:

David,

Have you seen their documents? Have you read their HOA statutes? Are you familiar with their states case law? You are offering this guy advice based on how a different type association works in a different state? Please!!!

JM10,

Your whole piece of advice is in your first 14 words: I don't know what your CCR says and what the laws are in Kansas......

But yet you continue to give this guy advice anyway!!! You were on a Board in California and if my geography serves me that is not Kansas. Plus, every Association's documents are different.....some allow Directors who are not Members and others do not. It really doesn't matter what your old Association in California did....this is a different association in a different state. I assure you there were probebly California associations that did not require you to be a member to be a Director. What is typical has absolutely no bearing on his association....the only thing that does is his associations governing documents!!!!

What you are trying to say about a fiance vs a spouse has no bearing.....IT'S THE DOCUMENTS!!!!!
\
I really wish people on these forums would only speak or offer advice when they know what the hell they are talking about!!!! Folks who ask questions are counting on you being right if you answer and they make decisions based upon your response. Unless you know for an absolute fact that your answer is correct, STFU!!!

BanksS
Posts: 403

Posted:

Quote:

Posted By RickP2 on 06/12/2015 5:36 PM

!Folks who ask questions are counting on you being right if you answer and they make decisions based upon your response. Unless you know for an absolute fact that your answer is correct, STFU!!!

That would be a big mistake. While this forum is useful to get ideas and discuss issues depending on posters to be right and make decisions based on that information is not wise.

GreggK2 (Kansas)
Posts: 86

Posted:

I will admit this. Since using this forum, about 50% of the time I really do not walk away with a clear answer. That is not to say that I don't value the input. Instead of relying on the forum for the answer to this particular problem, I met with an attorney. Now, the Areas Homes Association Declaration and CC&R's do define a member as a home owner, whose name is on the title, the bylaws were written with an loophole. It does say that a director does not need to be a member? Why? Because it allowed the outside management company that was hired by the HOA to be on the board while not being a home owner. Well, we are closing that loophole. The bylaws can be amended by just the board. The other 2 documents require a 2/3's majority of all of the home owners. So the Declaration and CC&R will not be modified anytime soon and certainly not over little things. As far as the bylaws, we can tinker with them but only relating to matters of how the board operates. Just because we can modify the bylaws does not mean we can slip in anything we want.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By GreggK2 on 06/12/2015 6:36 PM
I will admit this. Since using this forum, about 50% of the time I really do not walk away with a clear answer.

Welcome to the internet

I was trying to troubleshoot a network server this afternoon and, no lie, I had 12 different browser windows open each purporting to tell me what the problem was. One of them finally had the solution I needed.

You did the wise thing consulting an attorney. Glad it's working out for you so far.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By GreggK2 on 06/12/2015 10:47 AM
WHOA!!!! I think Rick just hit something that I was not familiar with. Before I became president, I asked about whether both me and my fiancee could serve on the board. I was told, point blank, that she could not be on the board because she was not on the title. I took the board for their word. HOWEVER, this is in our bylaws:

Section 2. Number and Qualification of Directors. The authorized number of directors of the corporation shall be not less than one, nor more than fifteen, until changed by amendment by this bylaw. Directors need not be members.

If I am reading it right, and am understanding Rick, isn't it saying that the person sending me the email CAN be on the boar since our bylaws do say that Directors need not be members?

First and foremost, NEVER take what another or previous board member says to be the answer. Your fiduciary responsibility is to always check for yourself, so that you protect yourself and your HOA. Follow the leader is the biggest reason why HOA's are riddled with mistakes. As this shows, you answered her incorrectly based on what someone else said without looking at your documents. Which is what they did and the people before him.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By RickP2 on 06/12/2015 5:36 PM
David,

Have you seen their documents? Have you read their HOA statutes? Are you familiar with their states case law? You are offering this guy advice based on how a different type association works in a different state? Please!!!

JM10,

Your whole piece of advice is in your first 14 words: I don't know what your CCR says and what the laws are in Kansas......

But yet you continue to give this guy advice anyway!!! You were on a Board in California and if my geography serves me that is not Kansas. Plus, every Association's documents are different.....some allow Directors who are not Members and others do not. It really doesn't matter what your old Association in California did....this is a different association in a different state. I assure you there were probebly California associations that did not require you to be a member to be a Director. What is typical has absolutely no bearing on his association....the only thing that does is his associations governing documents!!!!

What you are trying to say about a fiance vs a spouse has no bearing.....IT'S THE DOCUMENTS!!!!!
\
I really wish people on these forums would only speak or offer advice when they know what the hell they are talking about!!!! Folks who ask questions are counting on you being right if you answer and they make decisions based upon your response. Unless you know for an absolute fact that your answer is correct, STFU!!!

He is not offering his advice any different than anyone else here. We are all from different states, all offering advice based on our own experiences. Why is his post any different than anyone elses here? And the language!!! STFU, well that works both ways doesn't it?

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By GreggK2 on 06/12/2015 6:36 PM
I will admit this. Since using this forum, about 50% of the time I really do not walk away with a clear answer. That is not to say that I don't value the input. Instead of relying on the forum for the answer to this particular problem, I met with an attorney. Now, the Areas Homes Association Declaration and CC&R's do define a member as a home owner, whose name is on the title, the bylaws were written with an loophole. It does say that a director does not need to be a member? Why? Because it allowed the outside management company that was hired by the HOA to be on the board while not being a home owner. Well, we are closing that loophole. The bylaws can be amended by just the board. The other 2 documents require a 2/3's majority of all of the home owners. So the Declaration and CC&R will not be modified anytime soon and certainly not over little things. As far as the bylaws, we can tinker with them but only relating to matters of how the board operates. Just because we can modify the bylaws does not mean we can slip in anything we want.

Perhaps you have an overly high expectation of the help this forum can give you. NO one will give you an answer that you can take to the bank. Which is why so many answers come with the obligatory, I'm not an attorney, but....If you take anyone's reply to the bank, then you deserve the repercussions. It's the internet for golly sakes.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Gregg,

As others have said, if there are qualifiers in your governing documents that specify only owners may serve on the Board, then those documents would need to be changed. If there is consensus to ignore the rule, then there should be consensus to change it.

My governing documents do not have any qualifiers. Therefore, anyone, even you, could serve on my Board of Directors. I believe that most older governing documents were written this way and individuals simply assume that only members may serve.

Finding that there were no qualifiers in our documents, I started a petition to change them. I went door to door and after talking to one couple, dropped the petition. The couple were an older couple on their second marriages. They only had one name on the deed to keep their children from fighting over inheritance of the property. Had I pursued and won adding qualifiers to our documents, I would have disqualified some very intelligent and willing volunteers simply because circumstances have them make a choice to have one and not the others name on a piece of paper.

Now, there is also the other extreme to any argument. Where a couple breaks up and the ex, who's name isn't on the deed, is still serving on the Board and issues arise.

Therefore, you need to look at things from all perspectives and make a choice.

As others have said, check your governing documents to verify that there are actual qualifiers.

If there are, and you believe a qualifier should be changed, then gather support and get it changed.

BobD4 (up north)
Posts: 1,002

Posted:

GreggK2 (Kansas)

Volunteers can be gold. But HOA/condo law skillsets do not magically arise from many volunteers' backgrounds.

You specifically & upfront requested "confirmation" arguments to use ( in reply to a resident employed by a lawfirm ) that support the "consensus" eligibility disqualification :
that electoral eligibility is ownership on title/membership.

However you also disclose that professional counsel has advised you otherwise :

that what you think is a "loophole" by-lawed to qualify eligibility without ownership/without membership.

Whether the ( ? voodoo ? ) consensus is correct or the licensed professional is right, the Board 's further thinking is now that it can unilaterally - without private owners consent at all - alter what the professional pointed out is by-lawed (in)eligibility criteria for Board candidacy.

You believe that your Board has jurisdiction to unilaterally "plug that loophole" ( ? by disqualifying non-owner/non-member candidacies ?) as within "we can tinker with them but only relating to matters of how the board operates".

Let me ask you a couple of questions :

1- What did the counsel advise about your Board's (alleged) eligibility redefining by-law amendment power ? Did he agree that ( whatever the outcome eligibility ) Board eligibility is like some sort of "tinkerable " (House) rule such as : "we convene at 7 pm" ?

( Maybe he pointed out that subsection (c-1) of Kansas Uniform Interests Owners Bill of Rights Article 58-4609 specifically prohibits Boards of Directors from amending the by-laws but of course only applies to newly created 12+ private property communities created after Dec 31 2010. )

Did the counsel say your CCR's set up an authority for the Board itself to unilaterally define its own eligibility without substantial owner vote of some kind ?

2 - Do you really have the luxury of enough qualified volunteers to restrict purely on basis of ownership on title ? What is wrong with entrusting the general ownership to sort out the downsides /upsides of that issue ?

As a condo/HOA ADR specialist & legal researcher with some experience managing large & small condo & rental communities, I saw some good condo Directors lawfully including not only spouses/partners not on title, but even condo renters. One renter was an outstanding Director who supplied missing skillsets. Do you want to jettison them ?

Did the counsnsel

You got some advice at this forum about a local interpretation purporting to disqualify from Board eligibility, a spouse/partner because she is not on the land title record. The documents as partially quoted do not support that local interpretation

BobD4 (up north)
Posts: 1,002

Posted:

delete the last uneditable 50 words : "Did the counsel . . .

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By GreggK2 on 06/12/2015 6:36 PM
I will admit this. Since using this forum, about 50% of the time I really do not walk away with a clear answer.

One reason why answers are often vague here is that they depend on your governing documents. Since we don't have access to yours, you end up with a lot of maybes.

Escaped former treasurer and director of a self managed association.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

One vote for each member/lot. You have 100 members then each household has 1 vote no matter what. If one member joins the boards does NOT double their voting power. A members vote works differently than a Board vote. A member vote elects board members to represent the HOA as a WHOLE, allows members to recall boards, and to change the rules. A board member is still a HOA member (normally). Their votes are for operating decisions and budget issues.

In our HOA if a married couple were BOTH on the deed, then they could switch out who cast the vote or ran for board. Their household still had 1 vote and one representative from their home if elected. The spouse could not vote for the other spouse. Whoever ran for the board had to vote for themselves and act as the head of the household that year.

It is like how your HOA does it's budget. You have 100 homes then your expenses is divided by 100 members. Otherwise you could have 100 homes and 125 votes or more. 100 equals 100. No more, no less. That does not mean a non-member or the other deed holder can NOT be on a committee or participate. They just can't represent the vote or on the board.

Former HOA President

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Former HOA President

BobD4 (up north)
Posts: 1,002

Posted:

Good point. But to GreggK2's great credit, he at least posted upfront a declared confirmation bias. (Contrary) advice he sought from the "consensus" & counsel. Didn't seek Forum opinions. What he asked for were arguments to return fire/circle the wagon against an objector with some declared connection to a lawfirm.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Come to the wrong place if looking for legal advice or those connected to a law firm. We are NOT attorneys and can ONLY offer OPINIONS. Even any "legal quotes of laws" are subject to consultation with a real attorney. I never believe a law quote from non legal unlicensed non professional posters from a web source. To do so makes me a fool as a client. However, I can use that information as guidance in making a better informed decision.

Former HOA President

DavidY3 (California)
Posts: 18

Posted:

Quote:

Posted By n/a on 06/12/2015 5:36 PM
David,

Have you seen their documents? Have you read their HOA statutes? Are you familiar with their states case law? You are offering this guy advice based on how a different type association works in a different state? Please!!!

JM10,

Your whole piece of advice is in your first 14 words: I don't know what your CCR says and what the laws are in Kansas......

But yet you continue to give this guy advice anyway!!! You were on a Board in California and if my geography serves me that is not Kansas. Plus, every Association's documents are different.....some allow Directors who are not Members and others do not. It really doesn't matter what your old Association in California did....this is a different association in a different state. I assure you there were probebly California associations that did not require you to be a member to be a Director. What is typical has absolutely no bearing on his association....the only thing that does is his associations governing documents!!!!

What you are trying to say about a fiance vs a spouse has no bearing.....IT'S THE DOCUMENTS!!!!!
\
I really wish people on these forums would only speak or offer advice when they know what the hell they are talking about!!!! Folks who ask questions are counting on you being right if you answer and they make decisions based upon your response. Unless you know for an absolute fact that your answer is correct, STFU!!!

Is this a legal forum or an opinion forum? Are you a HOA lawyer? So please before you go off on someone you should check yourself first on why you joined. I provided possible options they could look into. No one should take any suggestions on here for face value.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Based on the post count being zero, it appears that Rick has left the forum

TinaM1 (Florida)
Posts: 5

Posted:

Quote:

Posted By n/a on 06/12/2015 10:32 AM
It doesn't matter what the consensus of the entire Board or the community is....it only matters what your governing documents state and many governing documents do not require you to be a homeowner. Read all the documents thoroughly (Articles, ByLaws, Declaration) to be certain what they state, don't make the assumption that because it is a homeOWNERS association you must be on the title.

Simply not correct......

In our HOA, the BOD directors do not need to be property owners of any sort, but only property owners may speak or vote at a member meeting. It is not specified in our by-laws that the directors must own property.

Reading the documents is very important. If your documents don't stipulate, then check your state statutes.

🎯 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