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:

• membership in the association,

• good standing,

• not in litigation with the association,

• not a co-owner with another director,

• attending a minimum number of meetings as a director, and

• not a convicted felon.

For a full list of director qualifications, see "Nominations" in the Election Menu.

Election Rules. Because amending the CC&R or bylaws is difficult, some argue that director qualifications can be added via an election rule adopted by the board of directors. There is a split of opinion as to whether it can be done. Civil Code §1363.03(a)(3) states that election rules must

Specify the qualifications for candidates for the board of directors and any other elected position, and procedures for the nomination of candidates, consistent with the governing documents.

Some lawyers argue that election rules cannot create new qualifications where none exist in the bylaws. Others argue that adding new qualifications is not a conflict, provided the qualifications are reasonable. The more conservative course of action is to amend the bylaws and avoid any potential legal challenge.

RECOMMENDATION: 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.