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Rules Should Guide Board Elections
Frequently an association about to have an election for the board of directors will receive a candidacy application from someone whose ownership is called into question. Two questions then arise; first, who can serve on the board and secondly, what if someone who is not legally qualified does get elected?
If the association is a condominium, the Illinois Condominium Property Act requires that all directors be owners. In the event the unit is owned by more than one owner, they can select one amongst their group. A husband or wife can run, but not both (unless they own more than one unit).
Sometimes units are held in trust or owned by business entities. In these situation, the board must look at the declaration for guidance. Many documents allow a legal entity like a trust, partnership or corporation to select a representative.
What about a renter? Theoretically, if a unit were owned by a corporation and the appropriate language were in the declaration, a renter could serve on the board provided they had the appropriate documentation. That is the key. Whenever anyone’s credentials are called into question, the board can request proof to qualify any candidate.
A frequent question arises as to whether directors must reside on the property. Many declarations impose such a requirement. At this juncture, this question remains unsettled. Some legal authorities rely on the commentary in the Condominium Act to imply these restrictions are unconstitutional. Until the law is changed or an appellate court rules, this debate will continue.
Does a member have to be current in the payment of their assessments? Many associations have adopted rules to limit board membership, and even voting rights, to "members in good standing." The prerequisite for implementing such a policy is that the board must adopt it at an open meeting in advance of sending out notice of the election. All members of the association should receive notice of this requirement before it goes into effect.
Of course, in dealing with townhome and homeowner associations, the declaration and bylaws will always determine board qualification. In some of these documents, ownership is not even a requirement to serve on the board.
Finally, what happens when a sitting board member becomes delinquent, or sues the association, or is found not to be an owner? They should be requested to submit their resignation, and if not, procedures can be implemented to have them removed from the board. Any matter they voted on would not necessarily be invalidated until the board learns of this fact and then takes no action. If the board fails to act, they could be deemed to be remiss in their duties and open themselves up to possible liability.
In summary, it is always important to have a thorough set of rules governing the election, which follow the bylaws and the law.