Board Eligibility

Laine,

True, anyone can run for the Board but that sure doesn't mean that they would be elected.

This spouse not on the deed thing has shown up before and we never get a rock solid answer. In my humble opinion, the wife #1, should be on the deed, #2, should be eligible for a Board position if she is a memberin good standing of the community and lives there. Are there any restrictions on your Bylaws in regards to who can be a Board member?

You must read your association documents. Mine say:

"The Board of Directors shall be residents of Lee County, Florida. And either members of the Association or officers, general partners or trustees of an entity member. "
"MEMBERSHIP. Every person or entity who is, from time to time, the record owner of a Lot within the Subdivision will be a member of the Association, but only for so long as he is the record owner of a Lot;"

Little question in our HOA.

If the couple purchased the home after being married, then the spouse owns a portion of the property (unless a prenuptial contract was signed). So if your documents state that owners are eligible, then the spouse is eligible.

SusanW, you should be more careful when replying to FL posters. The original poster is in Florida, right? Well, in FL if By-Laws or Covenants do not address a particular issue then you have to follow Florida Statutes 720 guidelines.

This has nothing to do with Florida laws. But for the edification of those interested, here is some boilerplate language that I have found popping up verbatim in a number of the 200 or so covenant declarations I have researched in the past several months. I have not yet been able to determine the original source of this language. Several law firms have used it as have several developers.

Some covenant declarations specify that board members must be members of the association. Others are silent on the subject.

Section 1. Membership. Every Owner of a Lot, except as herein provided to the contrary, shall be entitled and required to be a member of the Association. If title to a Lot is held by more than one person, each of such persons shall be a member. An Owner of more than one Lot shall be entitled to, and there shall be required, one membership for each such lot. Each such membership shall be appurtenant to the Lot upon which it is baaed and shall transfer automatically by voluntary or involuntary conveyance of the title of that Lot. Except as herein otherwise expressly provided, no person or entity other than an Owner or Declarant may be a member of the Association, and a membership in the Association may not be transferred except in connection with the transfer of title to a Lot.

According to statutes, title to land is not transferred until it is recorded by the county recorder. Thus, it would be reasonable to conclude that only those individuals recorded on the deed are members of the association. That conclusion is further reinforced by the next section.

Section 2. Transfer. A membership in the Association shall not be transferred, pledged or alienated in any way, except upon the transfer of the record title of a Lot and then only to such transferee, by assignment, intestate succession, testamentary disposition, foreclosure of mortgage of record or other legal process. It shall be the responsibility of each Owner, upon becoming entitled to membership, to so notify the Association in writing, and until so notified, tile Association may continue to carry the name of the former Owner as a member, in its sole discretion. Any attempt to make a prohibited transfer is void and will not be reflected upon the books and records of the Association. In the event the Owner of any Lot should fail or refuse to transfer the membership registered in his name to the transferee of title of such Lot, the Association may issue a new membership to the transferee, and thereupon the old membership outstanding in the name of the transferor shall be null and void as though the same had been surrendered.

Section 3 makes it very clear that there is only one vote per lot, regardless of the number of owners.

Section 3. Voting. The Association shall have two (2) classes of voting membership, as follows:

A. Class A. Class A members shall be all Owners of Lots, with the exception of the Declarant prior to termination of Class B membership, and shall be entitled to one (1) vote for each lot owned with respect to each matter submitted to a vote of members upon which the Class A members are entitled to vote. When more than one person holds title to any Lot, all such persons shall be members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any one Lot. There can be no split vote. Prior to or at the time of any meeting at which a vote is to be taken, each co-Owner or other person entitled to a vote at such meeting shall file with the Secretary of the Association the name of the voting co-Owner or other person entitled to a vote at such meeting, unless such co-Owner or other persona have filed a general voting authority with the Secretary applicable to all votes until rescinded.

Kirk,

I disagree. Only the person whose name is on the deed is the owner of a property. Married or not, if your name isn't on the deed you are not an owner of the property.

Ok I have another "spin" on the above topic.

Basically there is 1 owner he still owns 5 units in a 20 unit complex. The owner rents to a lady and she is his "property manager". When the voites where counted they allowed her to vote 5 times on his behalf becuase he owns 5 units. Now I know he is allowed a vote per unit, but is SHE allowed to vote on his behalf? This is in the state of CA

what if that same guy hasn't paid hoa dues in over a year.

In that case his voting rights would probably have been suspended, so his votes shouldn't be counted regardless of who cast those votes.

John,

That isn't true either. I live in a community property state. What that means is my husband's property becomes mine upon his death. But, I still need to have my name put on the deed for it to be legally mine! At least that's the way I interpret the law regarding community property.

Kirk,

Of course the court would look at the deed to determine who the owner is! IF either spouse owns the house, I would think it would be included in the assets. But, I wasn't talking about looking at the deed to determine what the assets are I was saying in a community property state the assets would transfer to the spouse upon death -- or divorce -- but the spouse would then have to have his/her name put on the deed. In other words, the deed tells you who the owner of the property is. In AZ we have a deed of trust. So, in AZ that is the document that should be looked at to determine who owns the property. In Texas, it would be the property deed, as based on what you say.

Well, perhaps there are some boards who may have ulterior motives, but all BODs should be concerned with doing what's regulated in the gov. docs. If the docs say only members can serve on the BOD, then it's only a member. A member is the person(s) who owns the property. The deed tells you who owns the property. The secretary of the assn should have a list of all the members. If a person running for the board isn't on the list as a member then the board should ask them to show proof of ownership otherwise they cannot vote (w/o a proxy from the owner) nor run for a position on the board. Bottom line: it should ONLY have to do with following the rules of the assn!

And as far as taking away the couple's rights to be "a couple in their own terms". Give me a break, Kirk! No one is trying to take away anyone's rights, because if you're not the property owner you don't have any! Plain and simple. Throw that in the face of a judge and he'll laugh you out of the courthouse. And if you want your wife to co-own your property with you and you don't put her name on the deed, IMO, you may call it a "personal choice", but I call it stupidity!

Mary,

you said- "And if you want your wife to co-own your property with you and you don't put her name on the deed, IMO, you may call it a "personal choice", but I call it stupidity!

I guess the original concept of only having one name on the deed was from way back when, because of liabilities from a tax standpoint and loss of some financial support because of the Federal laws. Seperation of ownership in case of the death of a spouse might play into that old way of thinking. Times have changed and spouses are protected a little better in case of the death of ones spouse. Car Titles used to be seperated so that the auto did not go into probate and all of that stuff that I still do not fully understand. Just my gut feeling as to why it is still done by some of our older folks. Of course, this also could be a second marrage and updating the deed was never done.

Dwight,
(sorry, I forgot to name you on my list--see "valet from Martin")

In Florida, there are only "LIMITED PROXIES" allowed, which names a proxy holder for only a specific purpose and a limited time, therefore this would not work. If Lains documents state only deed holders can be Board members, then there is only one way to handle this and that is to have her named onto the deed. It only costs a couple of dollars so that would be the reasonably easiest way to go.

Dwight,

This is our Fl. Statute 720:306 on Proxy Voting. Pretty simple to understand.

"8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

From Wikipedia (with no apology to those who don't like the source):
In real estate, a trust deed or deed of trust, is a document wherein specific financial interest in the title to real property is held by a trustee, which holds it as security for a loan.

Thus looking at a deed of trust to determine ownership is just wrong. Using this to exclude a spouse from serving on the BOD reeks to the highest level of intruding where one has no business. You don't know and have no way of knowing why a mortgage was written in only one name. Quite frankly it is none of your business.

So if you are so inclined as to be concerned about if a spouse should be eligible to serve, at least go to the correct document which is the separate deed.

Again though, I have little respect for people who try and split hairs such as which spouse can claim ownership in a home (or condo). In my opinion this is attack on the establishment of marriage.

I agree, Kirk, about not using the deed of trust to determine eligibility for board membership. I still go for the names on the recorded title. You gotta' draw the line somewhere. In Hoosierland the statutes specifically state that ownership of land is legally recognized only if it is on the recorded title. That does not preclude a non-listed spouse from having an justiciable economic interest or community property interest in the property in question.

When the declaration of covenants specifically state that membership is based on the names on the recorded title, and that only members may serve on the board, a spouse, whose name is not recorded, is outta' luck. Dat's da law, and a reasonable interpretation of the facts in evidence.

Some declarations that I have researched specifically allow spouses ("lot owner or spouse") to serve. But with the growing number of spousal arrangements in existence, there is no telling who is a spouse and who isn't any more.

Right now I would go with membership and board eligibility based on recorded title (not trust deed) to the unit. If the spouses do not choose to record both names on the title, that is the cost of their decision.

There is an entirely other issue here as well. In a number of cases in our neighborhood there are non-residents on the recorded title as owners. I suspect many are children of older parents, or parents of first time homeowners. It can create some interesting possibilities.

If, for instance, Dad loans daughter and son-in-law money to buy their home and is listed on the recorded title (to protect their investment), is Dad's spouse, Mom, eligible for board membership, even though she does not live in the neighborhood?

George,

You may not have noticed but I did correct my mistake regarding deeds of trust. In AZ a deed of trust is used in lieu of a mortgage.

Now, there may be some out there, but I've never heard of gov. docs. which state the member must reside in the community to be eligible for a position on the board. The only criteria is generally that the person be a member of the assn. To be a member you must be a property owner. There are some assn's that do allow non-members to hold a board position.

One thing that hasn't been mentioned in this thread is a Trust. More and more families are having their assets held in a trust. If a property in an HOA is held in a trust then, IMO, the trustees would be the owners of record. If a spouse is not listed as a trustee he/she is not a member of the assn.

I just did a quick search through the 200 or so digitized declarations that I have assembled over the past few months, and found this:

Section 2. Additional Qualifications. Where an Owner consists of more than one person, or is a partnership, corporation, trust or other legal entity, then one of the persons constituting the multiple Owner or partner, officer or trustee, as the case may be, of the partnership, corporation, trust or other entity, shall be eligible to serve on the Board of Directors of the Association, except that no Lot may be represented on the Board of Directors by more than one person at a time.

This specifies that only a trustee of a trust (or officer of a corporate entity) which holds ownership of a unit is eligible to serve on a board.

In my county it is easy to find out whose name is on the mortgage. And if you pay close attention you can tell if the spouse is joined in ownership of the property. It will indicate things like "joined pro forma" or some similar thing.

Unfortunately, it isn't easy to actually find the title of the property (or whose name is on it). Our central appraisal district has a search feature. But they choose to only list the names on the warranty deed.

I would say that associations should allow an owner or "legally recognized spouse" to vote and/or serve on the board. If appropriate for the state, I would also include a "civil union" partner.

Note that I am not advocating that this be extended to just any living arrangement. But when a couple is recognized as a couple in legal terms, this should carry to the HOA.

Kirk,

Recorded deeds can be found on my county recorder's website. All you have to do is search a person's name under "deeds".