There is no law establishing qualifications for directors. To be eligible for election to the board of directors, candidates must meet the qualifications established in the association's governing documents. Qualifications for serving on the board are normally found in the bylaws. In older unincorporated associations, they are often found in the CC&Rs.No Director Qualifications
. Original documents prepared by the developer often do not require any qualifications for serving on the board. This allows the developer to appoint non-owners to the board until such time as homeowners assume control. This means anyone, including tenants and delinquent owners, can serve on the board.Reasonable Qualifications
. Associations may amend their bylaws to establish reasonable qualifications for directors. Reasonableness is determined by whether the requirement is rationally related to the protection, preservation or proper operation of the association. (Laguna Royale v. Darger
.) After homeowners assume control of their association, they frequently amend their documents to require director qualifications. Some of the more common qualifications include:
For a full list of director qualifications, see "Nominations" in the Election Menu
. Election Rules
. Because amending the bylaws can be difficult, some argue that new director qualifications can be changing the rules instead of the bylaws. There is a split of opinion among attorneys as to whether it can be done.
Opinion #1: Boards Can Add Director Qualifications.
Some attorneys believe that additional qualifications may be imposed by the board without membership approval via the rules. They argue that boards are authorized to adopt election rules and this means they
director qualifications when they adopt or amend rules. They argue that as long as the qualifications are reasonable, they would survive legal challenge.Opinion #2: Boards Cannot Restrict Candidates
. In my opinion, boards cannot restrict who can run against them. Only the membership has the power to impose director qualifications. I base my opinion on the following two points:
a. No Restrictions in the Law. The Corporations Code imposes no restrictions on who may be a director except to require that they be a natural person. (Corp. Code §5047.) The Davis-Stirling Act has no restrictions of any kind on who can serve on the board. If neither the Corporations Code nor the Davis-Stirling Act restrict candidates, I don't believedirectors can limit who can run against them.RECOMMENDATION
b. Inconsistent with Bylaws. Moreover, rules adopted by a board cannot be "inconsistent with governing law and the declaration, articles of incorporation or association, and bylaws of the association." (Civ. Code §1357.110(c).) This requirement is repeated in the election provisions of the Davis-Stirling Act which state that board qualifications in the election rules must be "consistent with the governing documents. (Civ. Code §5105(a)(3).) In my opinion, it would be inconsistent to impose restrictions in the election rules where none exist in the bylaws.
: Boards should seek advice of counsel on how best to handle issues involving additional director qualifications not found in their CC&Rs or bylaws. Boards can also contact us
for a proposal to amend their documents to include qualifications.