Q&A: Who Can Serve on the Board of Trustees?

I am the vice president of a small condo community and we are trying to find out if non-homeowners can serve on the board. Several of the homeowners would like renters to have a proxy vote. However, being a proxy and voting for an absent owner is different than having privileges to serve on the board. Our bylaws clearly state that board members must be homeowners.

—At Odds in Oxford

“There are two questions posed here; the first question is whether non-homeowners can serve on your condominium board,” says Jack Facey, a shareholder attorney and director at the law firm of Kenlan, Schwiebert, Facey & Goss, PC, in Rutland, VT. “It is possible that your bylaws conflict with state law in the state where your condominium is located. Absent state condominium law providing that board members can be homeowners or non-homeowners, your bylaws will control and you cannot elect non-homeowners to the executive board.

“UCIOA does allow for the possibility that in some projects, especially in senior living projects and in subsidized 'first-time homebuyer' complexes where “it may assist the long-term viability of the project” if a non-controlling percentage of the directors, appointed by persons other than unit owners, could provide independent outside expertise to the board, even if those directors are not directly responsive to the owners themselves.

“The comments to UCIOA clearly state that such directors can only sit if the declaration provides for such an outcome. Your declaration, apparently, clearly states that board members must be homeowners so the issue is moot, unless you happen to be in a state where the applicable law provides that anyone can be elected to a condominium executive board.

“The second question is whether condominium owners who rent their units can give their renters a proxy to vote for them at condominium owner’s association meetings. The UCIOA covers proxies in §3-110. There is no prohibition in the UCIOA against giving a proxy to a renter or any other person, even though that person is not a condominium owner.

“Accordingly, I would answer the question in the affirmative that a renter could go to a condominium meeting with a condominium owner’s proxy. The comments to the 2008 UCIOA amendments state that "while the declaration and bylaws may impose further restrictions on proxy voting, the 2008 amendments impose only two: subsection (C)(5) limits the validity of proxy only to the meetings at which it is cast and (C)(6) limits the proxies that any one person may cast to a percentage set by statute.

“In my opinion, a condominium declaration or bylaws could restrict the granting of a proxy to only condominium owners so if your declaration and bylaws do not so restrict, you are free to give your proxy to any one you choose.”

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