Does "Record Owner" of a Lot Include Unnamed Spouse?

SkuddleM (Colorado)
Posts: 62

Posted:

Joe Smith and his wife Sue live in our subdivision in Colorado (not a community property state, by the way). The BOD wants to appoint Joe as a board member (and it would be an appointment by the board as we never have enough nominations for board vacancies to hold an election).

Both our Articles of Incorporation and our Bylaws state that board members must be members of the association, and both define "member" as "record owner".

A search of the counter assessor's record for that lot shows "Sue Smith" as "owner" and shows no name as "joint owner".

There is nothing wrong with Joe, but there are those in our association who will take exception should Joe be appointed. Opponents of Joe's becoming a board member have pointed to the wording of the governing documents, while proponents claim the wording can be "reasonably interpreted" to include Joe as a member of the association.

As secretary of the association, I was chosen to research this issue and report my findings to the Board. A decision will be made at that time whether to involve the association's attorney.

KirkW1 (Texas)
Posts: 1,665

Posted:

Appoint the first person who objects. for so many people who have problems with who is serving you should have plenty to run for office.

KirkW1 (Texas)
Posts: 1,665

Posted:

As a note, if you look at my county assessor's office you won't see my wife either. Because they only hold the warranty deed (or lien) and the loan was taken out in my name with my wife only as a "pro forma" party. In short, her name isn't there.

Now if you look at the actual property deed of ownership you will find her name. Don't know if this works the same every where, but that is the way it is in Texas.

Otherwise you need to either find a new person to serve, get them to change the deed, or change your docs to allow the spouse to serve. (Ours state the owner or their spouse but not both at the same time.)

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Are you sure your documents do not state that each unit is assigned one vote. Any owners listed on the deed will submit to the management office the name of one person assigned the vote.

What do you all do in the case of multiple owners? They all can't run for the Board and each does not have a vote.
So in this specific case the name (wife) that is on the deed can assign the vote, she could assign her son, daughter, lover, lawyer or paper boy, if those individuals meet the criteria. Our only restriction is 25 years of age and I am sure someone could challenge that. Ours does not specify a Power of attorney, or a certified letter nor does it state a limit or frequency you can assign the vote.
It would appear if you gave the vote to the owner Kirk, then that owners can assign that vote. That doesn't mean they are giving up the vote, it just means they assign THEIR vote to someone else.
I bet you all use proxy's at annual meetings to obtain quorum.....same difference.

SkuddleM (Colorado)
Posts: 62

Posted:

Quote:

Posted By RobertR1 on 03/05/2009 10:53 PM

I bet you all use proxy's at annual meetings to obtain quorum.....same difference.

Proxies to warm bodies = 2 to 1 at our annual meetings for the last 10 years.

I wonder why the spouse was left out of the AOI and bylaws in the first place.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Skuddle,

I wonder why the spouse was left out of the AOI and bylaws in the first place.

**************************
Same reason she don't add you to the car title, if she owns the car, or the property or the corporate jet.

The way things are going, the spouse might turn out to be a boa constrictor.

I suppose some associations keep very close track of this little item and I suspect most don't bother, just use one vote for each unit. But, when counting hands at a annual meeting I have seen a president ask for a show of hands count the hands and declare a majority vote...................very wrong........but it happened and a considerable amount of money was expended on this vote, objections aside.
Such is life.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

To answer the initial question, I would tend to think that a spouse, Joe, whose name is not recorded on county records as an owner, is not a member. The language is clear and unambiguous.

Such a determination would most likely hold up in a court challenge. Joe is not entitled nor permitted to serve as a member of the board of directors, because he is not a member of the association.

Yet, were I in the position of voting to appoint Joe to the board, I might look beyond the specific language of the governing documents to what is in the best interests of the community. I would defend my action on the notion that unless demonstrable harm is shown in making such a non-member appointment, such an appointment is reasonable, particularly if the option was an unfilled position on the board. Some judges would find that argument questionable, but others would not find it so, under specific circumstances.

As for the following,

records maintained by the assessor are not the controlling documents. In most states, the deed is recorded with a county recorder, and the assessor only maintains records necessary for the assessment of taxes on the property.

Ownership of real estate is, by statute in most states, only recognized by what is recorded in the public record. For purposes of the law, an unrecorded owner may have an economic interest in the real estate, but does not have ownership.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

George writes:

>>>Ownership of real estate is, by statute in most states, only recognized by what is recorded in the public record. For purposes of the law, an unrecorded owner may have an economic interest in the real estate, but does not have ownership.<<<

I believe ownership is good as between the two parties to the deed, though not necessarily as between one of them and a third party GFP if not recorded.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

George,
Two things:
I don't know for sure if it is proper but it makes sense. Our documents allow one vote, one unit. The unit is specified to be able to appoint any co owner, family member, or anyone with POA to have the right to vote that vote. Now that does not mean that person designated to hold that right can vote anyway that want to. It means that how that vote is voted is an agreement within the unit of who ever they say hold interests. There is no time constrains and I suppose they could change who will vote the voter as often as they wish as long as notification is made to the board.

The second part is the subject of transparency. There are Boards that are so defensive they can't hardly conduct business of the association. They spend much more time trying to figure out ways not to tell the story than they ever do to just tell the story. I look upon this as one of of greatest self created evils and it does nothing except tear all the good boards down. our Board has for the past two scheduled Board meeting called a "quickie" ES the day before the regular posted Board Meetings. I have called them on it, this will be their last go around before a Board change, but nothing comes out of these kinds of secretive actions, it never has and it never will serve the people proper to indulge in conduct such as this.

MaryA1 (Arizona)
Posts: 7,043

Posted:

As George stated, only the names on the deed are the property owners and members of the assn and only those individuals are eligible to be a board member. I do NOT agree with Kirk and George in saying the provisions of the bylaws should be overlooked. This is not something a board member should ever do, under any circumstances. If Joe wants to be a board member so badly perhaps his wife will agree to having his name put on the deed. If not, then perhaps he should settle for a committee appointment. What is recorded on the deed is what should be considered when determining who is a member of the assn.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Most, but not all, association have a one unit/one vote mandate. And, that makes sense in my mind. However, this question is not about membership voting, but about qualifications to serve on the board of directors.

Here is some pertinent language I pulled from my covenant collection:

Membership.

If title to a Lot is held by more than one person, each of such persons shall be a member.

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.

except that no Lot may be represented on the Board of Directors by more than one person at a time.

The problem with either voice votes or show of hands at a membership meeting can easily be handled by using paddles (one paddle per lot). Paddles should be numbered and maintained by the secretary, given out when a member registers at the meeting. When a vote is required, a call for a show of paddles is all that is necessary.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Wouldn't it make more sense that board members should be a RESIDENT of the community?

I'd prefer a resident rather than an absentee owner on the board, (eligible just because he's a land owner)

MaryA1 (Arizona)
Posts: 7,043

Posted:

Susan,

I think your proposed requirement should be changed to read: All board members should be assn owners of record who reside in the community or in state. I see nothing wrong with a board member living in another part of town or even in a different town w/i the state. The main objective is to have board members who are available to attend the monthly meetings, etc.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary and Susan,
I totally agree a Board member should be a resident, or it makes more sense if he is. But I am afraid there are lots of Condos that just don't have an supply of "Residents". Our 65 unit normally has 5 or 6 residents, which means, in the end, that votes for anything are controlled by non-residents and couple that with a majority of owners rent, and it is easy to see that the votes are controlled by the owners that rent.

The way it works around here, and I bet it is typical, and follow this along as it is tricky.

For the most part the owners that rent don't object to the residents being vocal about the association, such as landscaping, security, maintainence, rules, etc. If they did, it would mean they would have to get involved, and they don't want that. But if this vocal group strays and wants to reguire a new rule that may require some action or conduct change by a renter, they get up in arms and say no one can interfer with their renters. They even go as far as wanting to pass rules that there renters should not be questioned about anything they do.

So, it is a constant battle and always a unsolved problem if broached. But if there is a owner problem with, for example, an a/c goes out, they want aid it sovling that problem from the association. If you reside there, and that happens, your problem plain and simple.
So the nonrenters want their place looked after, the rental property owners want their renters being handled softly and do not even expect the renters to abide by the Rules of Conduct that the residents live under. I have often heard heard their explanation for this position by them roundly declaring there primary home is not the same as their rental or second home, it is "different".

I am sure this goes on at many condos especially. So the few that are residents, in order to maintain a voice do a lot of the day to day, little stuff, that actually sets the tone for the complex. If they didn't the place would fall apart. We, have been blessed and now have a resident family that cares and he is likely to be the next president and she is a constant force in improving the whole, The other residents support them totally and we are making progress.

So, not only is the pool of residents aften small, you have to get unity among what is there and you have to have as many as possible on the board that will be good board members. One Board member is a success story for many residents.

GlenL (Ohio)
Posts: 5,491

Posted:

Ohio settled the matter at least for condos:

5311.08 Unit owners association.

(A)(1) Every condominium property shall be administered by a unit owners association . All power and authority of the unit owners association shall be exercised by a board of directors, which the unit owners shall elect from among the unit owners or the spouses of unit owners. If a unit owner is not an individual, that unit owner may nominate for the board of directors any principal, member of a limited liability company, partner, director, officer, or employee of that unit owner.

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

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Glen,
It seems the more we look at individual covenants the more it seems to amount to..............if it works for you. I think that is how it ends up anywhere in a practical sense.
Your Ohio statute, just doesn't seem to address the problem of multiple owners, single owners it does. Maybe there is more to it than that. Then there is the definition of what/who constitutes a spouse. This also would appear to present some problems with who can serve on the Board? Can both husband/spouse or who carries the vote for general election if one is on the board.
I don't know if it is possible to ever get any of this kind of stuff completely covered in a statute, and if it is...............here come the lawyers. $$$$$$$$$$$$$$$$$$$$