Fiduciary Duty: A duty to act for someone
else's benefit, while subordinating one's personal interest to that of
the other person. It is the highest standard of duty implied by law
(e.g., trustee, guardian). -Black's Law Dictionary
Because board members are entrusted with the money and property of the association they are held to a higher standard. They are deemed "fiduciaries" and have a duty to act in the best interests of the membership.
A homeowners association has a fiduciary relationship with its
members. (Cohen v. Kite Hill.)
Two Broad Duties
It is well settled that
directors of nonprofit corporations are fiduciaries. (Raven's Cove v. Knuppe).
Directors of nonprofit corporations such as the Association are
fiduciaries who are required to exercise their powers in accordance with
the duties imposed by the Corporations Code. This fiduciary relationship is
governed by the statutory standard that requires directors to
exercise due care and undivided loyalty for the interests of the
corporation. (Francis T. v. Village Green.)
[A]nyone who buys a unit in a common interest development with knowledge of its owners association's discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual. Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development's governing documents, and comply with public policy. Thus, subordination of individual property rights to the collective judgment of the owners association together with restrictions on the use of real property comprise the chief attributes of owning property in a common interest development.… Inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he [or she] might otherwise enjoy in separate, privately owned property. (Nahrstedt v. Lakeside Village.)
. Upon their election to the board of a common interest development, directors become fiduciaries with powers
to act on behalf of the association. As fiduciaries, directors are held to a higher standard of conduct and have two primary duties: (i) duty of care, and (ii) duty of loyalty. This applies to directors of both incorporated and unincorporated associations.
DUTY OF CARE (Due Diligence; Duty to Investigate). Directors must be diligent and careful in performing the duties they have undertaken. (Burt v. Irvine Company). Directors must:
Attend and participate in meetings so they can be informed about the association's business.
Make reasonable inquiry re maintenance issues, rules violations, etc.
- Keep corporate records.
DUTY OF LOYALTY (No Self-Dealing). Directors must act in the best interests of the association even if at the expense of their own interests. This is more than just embezzlement of funds; it includes steering contracts to family members or taking actions that result in personal benefits to the director at the expense of the association. Violation could result in (i) liability for all profits received, (ii) all damages caused by the breach, and (iii) punitive damages.
"We note that the duty of undivided loyalty applies when the board of directors of the association considers maintenance and repair contracts, the operating budget, creation of reserve and operating accounts, etc. Thus, . . . [directors] may not make decisions for the association that benefit their own interests at the expense of the association and its members." (Raven's Cove v. Knuppe)
Conflicts of interest do not necessarily create liability if handled properly.
. Boards should consider adopting a written ethics policy
to guide directors and govern their behavior.
. As volunteers, directors are protected from personal liability through the governing documents and various laws provided they meet certain standards. See "Protections Against Liability
Statute of Limitations
. The statute of limitations for an action against an association or board member for breach of fiduciary duties is three (3) years from the discovery of the wrongful act. (Smith v. Superior Court