An association's bylaws can establish qualifications for serving on the board of directors. (Corp. Code §7151(c)(3).) Original documents prepared by the declarant often do not require any qualifications for serving on the board. This allows the declarant/developer to appoint non-owners to the board until such time as homeowners assume control.
Candidate-Director Qualifications. Associations may amend their bylaws to establish reasonable candidate qualifications for persons who want to serve on the board of 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 establish candidate-director qualifications. Some of the more common qualifications include:
For a full list of qualifications, see "Nominations" in the Election Menu.
Director Qualifications. In addition to qualifications for election to the board, many associations include qualifications for directors to remain on the board. For example, a director's seat can be vacated by the board if he/she misses three regularly scheduled meetings in a row or four in a twelve month period.
Qualifications Via Rule Change. Even though the bylaws may be silent on director qualifications, the court of appeal in Friars Village v. Hansing ruled that boards can adopt director qualifications in their election rules provided the qualifications are "reasonably related to the performance of the Board and will serve to protect its overall mission--protecting the best interests of the Association." The court's decision was based on a particular set of circumstances and the language in the association's governing documents so it is unclear if the decision allows associations to freely adopt director qualifications via rule changes. Accordingly, whenever possible, candidate-director qualifications should be implemented via an amendment to the bylaws.
Vacate Seat. If a director ceases to be qualified to serve on the board, the remaining directors can vacate the seat and appoint a replacement. Before doing so, the board should hold a hearing to give the director an opportunity to cure the disqualifying event or to explain why the disqualification is unjustified and should not occur.
ASSISTANCE: For assistance establishing director qualifications for your association, contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.