Board Member Not Qualified

Joe:

To me it seems pretty cut and dried. Since he is not a member he is not eligible to be on the board. I think the rest of the board should inform him of this, give him the chance to provide evidence to the contrary and if he can't then the board should appoint a replacement. In the meantime I think he should not be allowed to vote on any matter until this is cleared up.

GloriaM - Only applies to the first Board, of which is not in existence anymore.

The statement s cut and dry. If your state has a statute directed to HOA's look to that. If there is a trust he would only qualify if he is trustee. If he is the receipient he still would not qualify.

Joe,
I totally agree with Gloria. What makes you think this only applies to the first Board? The By-laws apply until amended.

JoeW, question, your doc's make no mention of spouses? As in board members must be owners, or spouses of owners....

If not, then I retreat back into my corner of HOA world (annual audit time). However if your doc's do allow for qualification based on spouse as owner, then the board member you mention should be allowed to hold a seat.

Florida Statutes (Chapter 617-Corporations Notfor Profit) state the following
"In the event that the eligibility to serve as a member of the board of directors of of a condominium association, cooperative association, homeowners'association, or mobile home owners' association is restricted to membership in such association and membership is appurtenant to ownership or a unit, parcel or mobile home, a grantor of a trust described in s.733.707(3), or a beneficiary as defined in s.737.303(4)(b)
of a trust which owns a unit, parcel, or mobile home shall be deemed a member of the
association and eligible to serve as a director of the condominium association,
cooperative association, homeowners' association, or mobile home owners' association,provided that said beneficiary occupies the unit, parcel or mobile home."
Note - grantor or beneficiary.
I don't know if you are in Florida, or if the property is in trust.But is so, this might apply to the situation you describe.

Why would being a "spouse" of an owner have anything to do with membership? How about a child or parent of an owner? Cousin or uncle? A "domestic partner"?

Just to make this interesting, a property may be owned by a corporation. That's just one membership, but wouldn't any of the owners of the corporation be eligible to be elected or appointed to the board?

As I posted above, in our association, a board member does not have to also be a member. None of us planned it this way or had any choice in the matter, that's how it was set up befor any lots were sold.

If you take the original post at face value then he is not eligible to be on the board. The argument that he may hold the mortgage or has power of attorney, etc., to me doesn't wash. For one thing his wife isn't dead or incapacitated, therefore any power of attorney or excecutor of wills, etc, is not a valid argument because at the moment in time we speak of he is not an owner. Now..if his wife were to pass tomorrow then he would have an arguement.

For whatever reason his name was taken off the deed, whether it is for tax purposes or whatever. I think you have to draw a line in the sand here that if the name isn't on the deed and the documents say you have to be an owner then he isn't eligible. You can play the what-ifs and different scenarios with wills and estates, to that extent I could argue that I am an owner of my parents home because I will inherit a portion when they die and am also a partial owner in my in-laws home because my wife will inherit that when they die.

NancyD1 - No, the wife who is now the only owner of record is not incapacitated in any way, just drove by her this evening as a matter of fact. BradP - if the wife was dead, the power of attorney would cease. Power of attorney is only good as long as the person who has granted it is alive. Black and white, this former owner is now a resident and considered an Associate Member.

Until the by-laws are rewritten to expand voting rights, you have to draw a line in the sand. This resident is acting as an owner and member of the community. It's immoral to do so, especially because there's no way it's not known. If there is some sliver of a chance that others don't know, than our system is grossly dysfunctional. Checks and balances are in order, how to correct matters in the most neighborly way is another matter. Hmmm....

Huh? BradP - my point was not an admonishment, it was in response to your post as follows, "For one thing his wife isn't dead or incapacitated, therefore any power of attorney or excecutor of wills, etc, is not a valid argument because at the moment in time we speak of he is not an owner." Furthermore you wrote, "Now..if his wife were to pass tomorrow then he would have an arguement.".

Please explain how he would have an argument if his wife passed. He would not have power of attorney, so am I missing something?

Joe,

Interesting but,

That would make any renter in your HOA an Associate Member? Same situation. The renter lives in the home of the owner. Do your doc's speak of renters?

I understand your position and sympathise with the situation. It is like the other poster a few weeks ago that rents and is wanted to be involved in her adopted community. Because of a technicality she cannot participate. We all know we don't get the citizens who live and should take part in our communities, to volunteer.

You are right, but were you the one elected to draw the line in the sand?

Our HOA had a similar problem in regards to "members" who were questioned about being qualified to be on the board, and said they were "trustees" on properties in trust. We had to request that these individuals bring proof to the board, and resolved the matter quickly. This seems harsh to some, but this also relieves anyone on the board of discriminating or showing favoritism toward one "member" over another, and it's just a simple and honest way to handle it.

The other option for us (board), was that a few association and board members, went to our county offices and the "record of deeds" office and looked up all properties for our association. Shock of shocks! We found that many of our outspoken board critics were individuals not listed on the deeds to their properties/lots where they were living, but the husband or wife were listed as owner, and therefore the only legal representative for that property. Our by-laws clearly state "lot/homeowner only" as member and therefore the only individual "qualified" to be on our HOA board.

This does not mean that a "spouse" can not come to a meeting with a proxy from the legal lot/homeowner signed to vote, but they "must" have a proxy to attend and vote without the member present. They are also not allowed to be a board member. In our review of past records of the board membership, we found that people who were thought to be members and were allowed to serve, because no one (board) knew they were not owners of record, some of them knew and lied to serve up thier agenda.

This would all have been mute, if there was a review required for the HOA every time there was a sale in our subdivision, and everyone would know the process. This does seem ridiculous to some folks, but there always seems to be those few who continue to believe that the rules do not apply to them, but they want to create ones for everyone else!

The problems our HOA has had recently, have made me more aware of homeowners who are all about following rules, when they are NOT applied to them. The old ideal of "wanting it the way it used to be." Meaning...I did what I wanted and made everyone else do what I wanted, too! Former board members who qouted unwritten Charter/By-Laws according to their wants and needs without regard to truth.

Good Luck to us! who are trying to clarify and follow the legitimate written words of our HOA documents, not the intentions, interpretations and creations of a few HOA tyrants. It is hard to understand how we (HOA members) are so confused over the written word, yet there are "parlor room" lawyers in OUR subdivision who will argue with our HOA legal representatives that he is wrong, his answer to them is "I guess we will see you in litigation, and that is really too bad."

The end to this story is that in the two years that we (board) have stuck to our Charter, no one (board members) has been sued and every proposal that the board has presented to the members has passed! We are a divided HOA membership, and that is sad to say, but following the Charter/By-Laws for ALL.

To all who are concerned over who is on the deed...
Log onto your own local municipality's website, search for Deeds and key in either by last name or street address. It is public record to show: assessment amount, owner name/s on deed, price paid for the unit/home.

For further info, call your local (township/borough) office and they will advise you.

NancyD1 - The right to make legal decisions does not make anyone an owner, or grantee. Ownership in my HOA is the sole qualification to be a Member, only Members can vote. Record shows one owner,not the current Board Member. This can not be more black and white than that. What gets sticky is how to tactfully bring this out because there will be back-peddling and excuses. Those in power absolutely want this person to stay and have tried to further an agenda to expand voting rights. What's going on here is outrageous.

"The matter was brought to my attention. Would you approach seeking removal of this Board Member? If so, how? I do feel it's very concerning that someone not qualified to vote and be a Board member is, and is making decisions for the community." from Joe W. original posting.

The question that I have, that would help my situation, and indirectly the one presented by Joe W.

What do I/we do, to any votes, decisions or motions, that were brought forward, or voted, or actions, by this non-homeowner therefore "not allowed" to be a member, of the board. Whom because NO-ONE thought to ask or check, was allowed to be a member of the HOA board?

Our non-member allowed to be a board member and NOW found out, still attended a meeting without proper proxy and just recently also voted, I just found out, without questions of and to, her eligibility. Now some of our current board are not sure what to do, to resolve her attendance and the consequence of her action. She seems quite bold, to act as she has, and after she was allowed to be a member of the board, she feels comfortable to sit and contest and comment on any action the HOA and the board are working on.

My current decision is to bring a listing of the listed homeowner/lotowner to our next meeting to discuss this with the board. What do we do with any and all her board actions, now that it is proven NOT to be an allowable member?

Any ideas or actions for me and/or Joe W. please GIVE,GIVE,GIVE.

I want to thank everyone for their responses so far. Good insight, very much appreciated. Situation is I am no longer a Board member, but volunteer, etc. This matter was brought to my attention and it quite frankly concerned and infuriated me so much I honestly have been wracking my brain trying to figure out what to do. You could have hit me with a mac truck I would have been less surprised at the news.

Even if this person can somehow weasel out of this, the bigger question is how to prevent it from occurring again. The Board posted an agenda prior to our last open meeting. In the Board portion it stated "Change in membership on the Board of Directors. Approvals needed as agreed upon at previous working session" Turns out the Board was and probably still is seeking to hold a Special Mtg. of Unit Owners to discuss expanding voting rights to include residents and non-Owners. My opinion and some owners I'm close with, is that it will open up a huge Pandora's box plus require a massive percentage vote of owners to amend. Hopefully other owners concur. Of all the things to focus on, why this? All along we were thinking the agenda item was to permit some existing non-owners that are very very vocal, who are on committees to join the Boards. Now it seems so strangely coincidental that an existing Board member doesn't qualify.

Joe:

On the same lines as Paul, perhaps every year the nominations for board positions are looked up online in the county database to see if they are the owner of record. I am sure each county is different, but it would take me less than a minute per person to look each candidate up.

IF you have multiple year terms, perhaps those people are also looked up to verify they are still owners. Now..who is going to do it is a question, and what you do if you find out someone isn't goes back to this whole discussion.