Q&A: Rudderless in Rumson

Q Our association has difficulty attracting people to run for the board, as I'm sure is a common problem. Would we be able to amend our bylaws to require unit owners to serve at least one term on the board? How can we go about doing that? Is it something that you would recommend?

—Self-Serving

A “This is one of those “should we” versus “could we” questions,” according to Richard Linderman, an attorney and partner with Herrick Feinstein LLP’s Community Association Practice Group in Princeton. “The lack of interest in running for the executive board (board of trustees or directors) and general complacency among unit owners is a problem that affects many condominiums and homeowners associations in New Jersey.

“However, I do not believe that forced conscription to board service is the answer. Case law is clear, members of the board owe a fiduciary duty and responsibly for fair dealing to all members of a community association. Furthermore, board members are burdened with making all of the binding legal, contractual and operational decisions for the community. Therefore, an association should only be interested in individuals that are truly interested and freely willing to volunteer their time, expertise and effort to serve. Most governing documents state that board members serve in an unpaid position. In my candid opinion, that is because you could not pay a person enough to serve on a board. For the betterment of your community, you should take steps to educate your members on how imperative it is to have owners freely volunteer their time to serve. In addition, unit owners should be made aware of the risks to their investment when their community does not have interested members making the decisions which affect the property values and potential liability for their association.

“From a purely legal position, it may be possible to amend the bylaws to force unit owners to serve on the board, assuming you could get sufficient unit owners to vote to approve that amendment. However, it seems like it would be a very difficult amendment to legally enforce. In light of the foregoing reasons, I would strongly recommend against such an amendment.”

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