We’re an association of detached townhomes. We (the Board) wants to pass that, to become and remain a Board Member, a homeowner can not be delinquent on their association dues 2 or more times within 12 consecutive months. Some our board believes this would be illegal. If correct, is it something we could put forth to all our homeowners to vote on?
ANSWERS:
The Association has the legal right to amend its By-laws to impose qualifications for serving on the Board of Directors. If this is an HOA organized under New York’s NPCL, any change affecting the election of directors (such as this one) has to be disclosed to the members at the next Annual Meeting. (However, disclosure does not give the members the right to approve the change.) If this is a typical business corporation or a condominium association, the disclosure requirement does not apply. The Board would certainly be advised to let owners know prior to soliciting nominees, though, to save owners from embarrassment and keep members abreast of changes.
Kenneth Jacobs
Smith, Buss & Jacobs LLP
733 Yonkers Avenue
Yonkers, NY 10704
914-476-0600 X4102
60 East 42nd Street
46th floor
New York, NY 10165
212-688-2400 X4102
The association can certainly impose a “good standing” requirement for board members. The declaration or bylaws may have to be amended by the appropriate vote of the unit owners.
STEFAN RICHTER, ESQUIRE
CLEMONS RICHTER & REISS, P.C.
Attorneys at Law
Fellow, College of Community Association Lawyers
107 EAST OAKLAND AVENUE
DOYLESTOWN, PA 18901
Phone: 215.348.1776
Fax: 215.348.9450
www.clemonslaw.com
Although an association of owners could attempt to implement such requirement by obtaining the approval of a majority of the board members at a properly called and held board meeting or by obtaining the approval of a majority of the members present, in person or via a valid proxy appointment, at a properly called and held members’ meeting, the best practice, and the one that I would recommend, would be to adopt an amendment to the by-laws to incorporate this provision.
Patrick F. O’Dea, Esq.
Nelson Mullins Riley & Scarborough, LLP
3751 Robert Grissom Parkway, Suite 300
Myrtle Beach, SC 29577-6412
Phone: (843) 946-5631
patrick.odea@nelsonmullins.com
www.nelsonmullins.com
This qualification (that a homeowner not be delinquent in the payment of dues) for eligibility to serve on the board of directors is perfectly legal. You would need to amend the qualifications of directors section of your association’s by-laws to provide that any homeowner, who has been delinquent in the payment of his or her Association dues two or more times within any twelve-month period, is ineligible to serve (or to continue to serve) on the board of directors. Typically, an amendment to the by-laws requires a vote of 66 2/3rds of the members.
Banks Shapiro Gettinger & Waldinger, LLP
Mr. John Harris Gettinger, Esq.
118 N Bedford Rd
Mount Kisco, NY 10549-2553
(914)666-8033
jgettinger@kiscolaw.com
Section 33-31-808(i) of the Nonprofit Corp. Act states that “if, at the beginning of a director’s term, the articles or bylaws provide that the director may be removed for reasons set forth in the articles or bylaws, the board may remove the director for such reasons. The director may be removed only if a majority of the directors then in office vote for the removal.”
Without a such a provision in the bylaws, it will require a vote of the membership.
The Association can amend the bylaws to permit the Board to remove a director for absences but per the above statute it will only apply to directors elected/appointed after the amendment is adopted.
D. Ryan McCabe
McCabe, Trotter, & Beverly, P.C.
140 Stoneridge Drive, Suite 650 (29210)
P.O. Box 212069
Columbia, South Carolina 29221
Phone: 803-724-5000
Direct: 803-724-5005
Email: ryan.mccabe@mccabetrotter.com
It is not illegal but will probably require an amendment to either the Declaration or Bylaws (whichever document currently contains the requirements to become [and remain] a Board member)
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
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