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May 12, 2006
Should Husband and Wife Both Serve On The Board?
Is it illegal for both husband and wife or two live in roommates to serve on the Board in one association? Here is the plight of one owner who questions whether it should be allowed:
"We have a 5 member board of directors and 2 of the board members are living together as a married couple. Between them they own 4 units. Is there anything in the law that prohibits a husband and wife or a cohabitating couple from sitting on a board of directors at the same time? This gives a lopsided vote and more power on decision making to the board in my opinion. Can you help?"
I cannot provide legal advice in this answer, but can provide some feedback that may help. In a 5 person board, having 2 people from the same unit is not quite the lopsided view of a 3 person board with a husband and wife serving. But still...
It gives the perception of imbalance for sure. It is not illegal for any number of persons from one unit or married persons to serve at the same time on an HOA Board; at least this is the case in California. However, it would not be allowed if the Declaration of Restrictions, Bylaws, or Articles of Incorporation (as the governing documents are called in California) had a prohibition against allowing more than one Owner of a single property in the development or a husband and wife (regardless of the numbver of units owned) from serving on the Board. However, the question arises as to whether it is fair to prevent two people who are cohabiting or are married that own two units from serving on the Board together. They represent the same proportion of units that two strangers serving on the Board would represent. The more common restriction might be that two people from the same Unit could not serve on the Board at the same time. Either of those prohibitions would probably be rare in any set of documents prepared by the developer, because restrictions on board members (qualifications) are usually nonexistent, as it is important to a developer for employees and representatives of the developer to be able to serve. Even non-owners are generally able to serve during the early stages. I do not believe putting a restriction on service that is different than what the Bylaws say into a rule is legal, as Bylaws generally contain the requirements and qualifications for serving on the board and the Bylaws would require homeowner approval for amendments.
But here's the flipside. In some associations there are a very limited number of people wiling to serve on the Board. It happens in some cases that a husband and wife or two Owners of one unit are both willing and qualified to offer something to the Board. Sometimes no one else will serve and that is the only option left. I have seen a few situations where it actually serves the Association well to have a full board of people qualified with skills to divide up and do the work, even if two of them are married, related or otherwise connected. And, I have seen situations where the two people have been on the Board together for years, and the Association is served well by the participation of these people who have special skills and business expertise, and then all of a sudden, someone with an ax to grind or someone who simply starts paying attention finds out and assumes there is some impropriety or imbalance, without specific facts to back it up.
Still, even in the best of situations, I have seen members whisper and gossip and complain about a board made up of 2 owners from one Unit or even when each owns a unit. I have seen recall efforts based on this very single issue, justified or not.
I think it is best if an Association has the opportunity to avoid board service by multiple members of the same "family", but do not offer a blanket statemnt or judgment about any given situation because I have seen benefits and drawbacks to both sides of the issue and have seen situations where I thought there should not be a prohibition and situations where I thought there should be. The question is whether the Association is being served well or not in either case.
Posted by Beth Grimm at May 12, 2006 10:13 PM