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Can 'absentee owner' be barred from seeking board seat?

The board of a homeowners association has repeatedly said a titleholder is not eligible for office because the person is an 'absentee owner.' Is that legal?

May 13, 2012|By Stephen Glassman and Donie Vanitzian

Question: Shortly after I bought my town home I had to rent it out and move in with my mother because she could no longer live alone. Since I became an owner I've never been late paying my homeowner dues, and my unit is well maintained. Every year the association sends me requests for nominees to serve on the board.

I have volunteered my name numerous times and have experience in property management and believe I could contribute valuable service to my community by serving on the board. But every time I submit my name I am told that I am not eligible to serve on the board because I am an "absentee owner." There is nothing in our CC&Rs that prohibit owners who do not occupy their units from serving on the board. I attend meetings regularly and do not consider myself an "absentee owner."

Is it true that I cannot serve on the board because I don't live in my town home?

Answer: Since your declaration of covenants, conditions and restrictions (CC&Rs) does not limit your service on the board, you are eligible to run. That the current board sees fit to exclude you from its list of nominees means it is breaking the law. The Davis-Stirling Act does not provide for a per se penalty for boards violating the law, but that does not mean a penalty or judgment against them cannot be imposed. You can bring an action against the association and its directors in a court of law to ensure your name appears on the ballot as a candidate for board director.

Even if you did not attend meetings, your name can still appear on a ballot. Whether or not you attend the annual meeting of your association at which board members are elected, you may still nominate yourself, either as permitted by your CC&Rs or by the Davis-Stirling Act as in Civil Code Section 1363.03(a)(3).

You can always circulate your own credentials to the other owners if needed, seeking their votes, even obtaining from the association the names and mailing addresses of those owners for that purpose.

You are not "absent" at all. Your unit is merely not "owner occupied." So-called absentee owners are still owners, with all rights and privileges. Exercising those rights is up to the owner. Prohibiting that exercise of owner rights exposes the board and all owners to potential liability.

All associations are self-governed by titleholders and need competent, willing volunteers. Preventing you from running for the board denies your association the benefit of your knowledge and violates the law.

Glassman is an attorney specializing in corporate and business law. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or email noexit@mindspring.com.

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