MEMBER DEFINED
As provided for in Civil Code § 4160, membership in a community association is coupled with an ownership interest in a common interest development. This requirement is frequently mirrored in an association's governing documents, i.e., members must be owners of real property (lots or units) subject to the association's CC&Rs. In short, a person must be on title to be a member.
Member Must Be On Title. For most issues involving real property, an unrecorded deed conveys property rights under certain conditions. However, unless an association's governing documents provide otherwise, an unrecorded deed does not confer membership status. For common interest developments, membership rights become active when the title is recorded. Explicit statements to that effect are frequently found in an association's CC&Rs, bylaws, or policies and procedures. Members can hold title as sole ownership, community property, community property with right of survivorship, joint tenants with right of survivorship and tenants in common.
Spouse Not On Title (Community Property). A spouse not on title does not have the right to vote in elections or run for the board by virtue of being married to someone who is on title. When it comes to real estate, rights flow to a person on title. Those with community property rights may, at a later date, have claims to equity in the property. In California, most property acquired during marriage is owned jointly by both spouses and is divided upon divorce, annulment, or death. While community property might be presumed, such rights are not guaranteed:
- A prenuptial agreements may have been signed;
- Real property may have already been separately owned and a newly acquired spouse would have no rights to the property; or
- After marriage, real property may have been acquired as sole and separate property using separate funds.
Although a non-owning spouse is not a member and cannot vote in membership elections, he or she can use common area recreational facilities as a resident family member of the spouse on title. The non-member spouse can also attend board meetings unless the board has a strict policy of members-only attendance.
Corporations. Corporations may own property in, and be members of a community association. A corporation is defined in the law as a "legal person" and has all the rights of a natural person in an association. As such, a corporation, whether for-profit or charitable, may appoint a representative to attend meetings, vote, and sever on the board of directors.
Family Trusts. “ ‘Unlike a corporation, a trust is not a legal entity. Legal title to property owned by a trust is held by the trustee.... A ... trust ... is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action.” (Greenspan v. LADT, LLC (2010) 191 Cal. App. 4th 486, 522.) Because a family trust is not a legal entity, it cannot hold title to property. It must be in the name of a trustee who holds legal title to the property on behalf of the trust with language similar to the following: "John D. Smith as Trustee of the John D. Smith Family Trust dated 1/1/15." Accordingly, the person on title (not the beneficiaries), are deemed members of an association. As members, trustees have the power to vote in membership elections and serve on the board. Frequently, the person living in the association is the trustee. Sometimes, however, the resident is a beneficiary of the trust or a tenant authorized by the trust to reside at the property. In that case, the resident has the right to use the facilities, but not the right to vote or serve on the board. Under Civil Code § 5105(b), regardless of the association's bylaws, and with certain specified exceptions, directors must be members.
Power of Attorney. An attorney in fact or power of attorney is an agent authorized to act on behalf of and make legally binding decisions on behalf of another person, but not necessarily authorized to practice law. An attorney in fact can can manage investments, make health decisions and do other tasks on someone else's behalf but cannot make changes to a will or trust. A person with a proper power of attorney can attend board and membership meetings and vote, but cannot serve on the board of directurs or use the association's amenities. If the issue comes up, boards should ask for a copy of the power of attorney and have it reviewed by legal counsel.
Renters. When owners lease their units to tenants, they transfer some, but not all, membership rights to their tenants.
Decedents' Estate. In some cases, a probate court may oversee the property of someone who has died. This includes payment of assessments to the association. Those overseeing the distribution of the estate's assets do not have any membership rights or privileges.
Membership Not Severable. Membership in a CID is appurtenant to and non-severable from an owner's unit/lot. Accordingly, membership cannot be assigned, transferred, pledged, conveyed or alienated in any way except upon the transfer of title of a unit/lot, and then only to the transferee of title to such unit/lot. Under those conditions, the transfer of ownership is automatic.
MEMBERSHIP RIGHTS
The rights/powers reserved to association members are described in the governing documents and generally include the right to:
No Veto Power. Because of the division of power between the membership and the board, members do not have a direct veto over the board's decisions (except for rule changes). Rather, the power to veto is indirect. If members are unhappy with board actions (or inaction), they have various options available to them.
Voting Rights. See Classess of Membership and Voting Rights.
MEMBERSHIP RESPONSIBILITIES
Payment of Assessments. The payment of assessments does not confer membership status. In Martin v. Bridgeport, a couple’s daughter and son-in-law lived in the couple’s home in an association. The daughter and son-in-law paid all expenses for the home including payment of assessments to the association. The daughter and son-in-law sued the association to enforce the CC&Rs. The Court of Appeal held the daughter and son-in-law did not have standing to sue because they were not members and dismissed the lawsuit. The payment of assessments does not make tenants members nor does it confer membership rights. The court noted that rights and duties under the CC&Rs are indivisible from ownership of real property. (Martin v. Bridgeport Community Association (2009) 173 Cal.App.4th 1024.)
Abandonment. "In order for an owner to abandon a unit in a community association so as to divest himself of the duty to pay assessments, the owner must give the association record notice of the abandonment through the recording of a quitclaim deed, notice of abandonment or other recorded instrument which makes it clear that the owner is relinquishing all of the rights of ownership." (Cerro de Alcala Homeowners Assn. v. Burns.) The same would apply to membership--acquiring membership and abandoning membership both require a recorded instrument.
Comply with the Governing Documents. Members are bound by governing documents when they purchace into a common interest development. One of their obligations is to comply with those documents. Otherwise, the association can take disciplinary action to ensure compliance.
Additional Information. Associations are governed through elected boards of directors who have general duties and authority to govern. (Civ. Code § 4080.) See Board Authority and Duties.
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