There is no law that explicitly establishes qualifications for persons wishing to serve on an association’s board of directors. There may be qualifications established in provisions of an association’s governing documents—typically in its bylaws. However, those provisions often include language that merely “encourages” adherence to stated qualifications, rather than making them mandatory requirements. Where director qualifications are entirely absent from an association’s governing documents, there may be circumstances where any person (i.e., non-owners, tenants, etc.) may be eligible to serve as a director and ultimately elected to the board.
Adopting Director Qualifications
In order to make adherence to specific director qualifications mandatory, an association may be required to formally amend its bylaws or its election rules. The limitations and requirements applicable to doing so will depend upon various factors, such as the nature/purpose of the desired qualifications and the language already contained within the governing documents.
Amending the Bylaws
An association’s bylaws may be amended according to the procedures and voting requirements contained within the bylaws. Bylaw amendments to incorporate director qualifications will often require membership approval through a formal election utilizing secret ballots. (See “Amendments to Bylaws” and “Elections Requiring Secret Ballots.”) Where a director ceases to meet required qualifications in effect at the beginning of the director’s current term of office, Corporations Code Section 7221(b) allows the board to declare the director’s seat vacant. (See also “Removal & Recall of Directors.”)
Amending the Election Rules
Associations are required to adopt election rules that comply with the requirements set forth in Civil Code Section 5105. (See “Election Rules.”) Election rules are “operating rules” that may be adopted and amended by the board without membership approval. The California Court of Appeals has indicated that boards do have some authority to amend their associations’ election rules in order to establish reasonable director qualifications without a vote of the membership:
“Overall, [Plaintiff] claims the relationship rule is invalid because it amounted to the Board’s attempted amendment of the governing documents, to further restrict them, whereas any such amendment of the articles and the bylaws would have requirement membership approval by the Association, not just Board approval…
…As we read this record, the relationship rule is ‘not inconsistent’ with governing law and the governing documents, in light of its asserted purpose and effect…Nor…does it exceed the authority of the Board, as that is conferred by law or governing documents, to make rules about candidacy for Board office that are intended to improve and are reasonably related to the performance of the Board and will serve to protect its overall mission—protecting the best interests of the Association.” (Friars Village HOA v. Hansing (2013) 220 Cal.App.4th 405 (Emphasis added).)
“Reasonable” Director Qualifications
Once adopted, director qualifications may be enforced provided that they are “reasonable.” Reasonableness is determined by whether the qualification is rationally related to the protection, preservation or proper operation of the association. (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670.)
Director qualifications that are commonly adopted by associations include:
- Being a member of the association
- Being in “good standing” (i.e., not in violation of the governing documents, delinquent in assessments, etc.)
- Not involved in litigation with the association
- Attending a minimum number of board meetings as a director
- Not having a familial relationship with another sitting director
- Not being a co-owner with another sitting director
- Not a convicted felon
Related Case Law
- Laguna Royale Owners Association v. Darger
(1981) 119 Cal.App.3d 670
[Reasonableness of Restrictions] Reasonableness of an association’s restrictions and powers is determined by whether they are rationally related to the protection, preservation or proper operation of the Association and its purposes.
- Friars Village Homeowners Assn. v. Hansing
(2013) 220 Cal. App. 4th 405
[Election Rules; Director Qualifications] Court upheld association’s authority to adopt election rules which prohibited closely-related members from being nominated to serve as directors.