HOA 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. An unrecorded deed conveys property rights under certain conditions for most real property issues. However, unless an association's governing documents provide otherwise, an unrecorded deed does not confer membership status. Membership rights become active when the title is recorded for common interest developments. Explicit statements 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 being married to someone who is on title. Regarding 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 agreement 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 the 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 member-only attendance policy.
Corporations. Corporations may own property and be members of a community association. A corporation is defined in the law as a "legal person" with 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 serve on the board of directors. See Corporate Voting Rights.
Family Trusts. Unlike a corporation, a trust is not a legal entity. The trustee holds legal title to property owned by a trust. A trust is simply a collection of assets and liabilities. As such, it cannot 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) is deemed a member 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, directors must be members with certain specified exceptions. See Trust Voting Rights.
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 manage investments, make health decisions, and do other tasks on someone else's behalf but cannot change a will or trust. A person with proper power of attorney can attend board and membership meetings and vote but cannot serve on the board of directors or use the association's amenities. If the issue arises, 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 paying assessments to the association. Those supervising 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 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:
Membership Limitations
Membership rights are limited to those expressly granted by statute and an association's governing documents.
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). Instead, the power to veto is indirect. If members are unhappy with board actions (or inaction), they have various options.
Voting Rights. See Classes of Membership and Voting Rights.
Members' 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 that the daughter and son-in-law did not have standing to sue because they were not members, so the lawsuit was dismissed. 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. When they buy into a common interest development, members are bound by the governing documents. 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 by elected boards of directors with general duties and authority. (Civ. Code § 4080.) See Board Authority and Duties.
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