QUESTION: Can an owner run for the board when she has a lawsuit against the board? Can we prevent her from running due to the current chaos she is causing both to the board and the association?
ANSWER: Candidate qualifications in your governing documents control. Because of the significant disruption caused by litigation and the conflicts of interest it creates for a candidate or sitting director to be suing the association, you should amend your bylaws to require that a candidate/director not be a party in any legal proceeding against the association or its officers or directors. Even if a candidate or sitting director is justified in suing the association, it creates significant disruption and conflicts of interest such that it is in everyone's best interests for the person to not be on the board during the course of their litigation. Once the litigation has concluded, the person can serve on the board.
If this qualification is not already in effect and a director sues the association, the board can require the person to recuse him/herself from any participation in matters related to the litigation. Recusal does not necessarily apply if a director is a defendant in a lawsuit. Boards should consult legal counsel when faced with these situations.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.