Q: I am on the Board of Directors of a Condominium. The building has 75 units, with underground parking and a swimming pool. We have a Board consisting of 3 people. I have been trying to get the Board increased to at least five, since I believe this would give us a more diverse opinion on matters concerning the condominium. At present, if one member convinces one other member on a certain vote, they have a majority. With five members, it would take at least three votes, which I think would better serve the owners.
Is there a law or rule of thumb about how many members must be on a Board for a building of our size?
A: Yes, there is a method prescribing the number of Board members, and that will be found in your legal documents – usually in the Bylaws.
Since you are on the Board of Directors, I am sure that you know the hierarchy of control in a condominium association, but let’s repeat it anyway. Those of us involved in condominium law refer to this as the “power source”.
The absolute power is the applicable statute. Since you are in Maryland, the Maryland Condominium Act – enacted by the Maryland legislature – controls. Most states in the United States have some form of condominium laws on their books, although some states have enacted more modern laws – such as the Uniform Common Ownership Interest Act – while other states are still operating under a first generation law, usually called the Horizontal Property Regime Act. We call this a first generation law, since when condominiums first started appearing on the legal horizon in the early l970's, states had to enact legislation authorizing the creation of a condominium, so that each unit could be separately taxed, instead of receiving a tax bill for the entire complex.
Maryland, Virginia and the District of Columbia have upgraded their community association laws, although there are differences between these three state laws.
Generally speaking, state laws are not designed to cover every single contingency and every possible nuance involving community and condominium living. The legislative drafters were well aware that circumstances change, and accordingly, they left a lot of the details for the legal documents of the association, rather than to carve out everything in the law itself.
Thus, the second power source in a condominium is the Declaration. This is the document prepared by the initial developer of the complex. This document is recorded among the land records where the property is located, and is basically the guide for such matters as:
- definitions of common elements, limited common elements and unit boundaries;
- the establishment of easement rights for the condominium board to have access to all areas of the association in the event of an emergency, or to make repairs to common elements which exist within an individual unit;
- the percentage interest which each owner has in the association. This is important for voting and assessment purposes, and
- rights and responsibilities of owners to their mortgage lenders.
The third power source – and perhaps the most important – are the Bylaws. These documents – which are usually recorded among the land records – are, in effect, the Bible for any association. The Bylaws spell out the role of the Board of Directors, and most Bylaws usually authorize the number of Board members which will govern the Association.
The Bylaws cover such matters as:
- maintenance and repair procedures for both owners and the Board;
- assessment requirements, and
- limitations on life styles, such as whether pets can be kept, rental restrictions and architectural control issues.
The fourth – and lowest level of power – are the Rules and Regulations adopted by the Board of Directors. The general rule is that if something is contained in the Bylaws, the Board can be strict in its enforcement. For example, if the Bylaws say “no pets”, the Board can take legal action against an owner who keeps a pet in the unit. However, the Board has to be reasonable and fair. If, for example, a sight-impaired unit owner needs a “seeing eye” dog, the Board must allow that owner to keep the dog.
Additionally, if the Bylaws are silent – or permissive – about an issue, the Board has the authority to enact reasonable rules. Again, back to our example of pets. If the Bylaws state that owners can keep one dog, the Board has the right – and the authority – to enact rules governing the conduct of the pet within the common elements of the building; i.e. dogs must be on a leash when entering or leaving the building, or one dog does not mean two dogs.
Now that we understand the power source, let’s go back to your specific question. Look at your Bylaws, in the section dealing with the Board of Directors. Does it state that there must be three board members? If so, the only way that you will be able to increase membership to the Board will be with a Bylaw amendment. Your Bylaws contain the legal requirements for such amendments, and I can tell you from my own experience, it is difficult – if not impossible – to amend Bylaws. It usually takes a super-majority of two-thirds (and sometimes three-fourths) vote of the entire membership in order to amend Bylaws.
However, some Bylaws permit a range of Board members – often from 3 to 7. In some cases, the Bylaws allow an increase in the number of Board members by a vote of the membership at an annual meeting. Other Bylaws permit the Board to increase the number of directors.
But let’s look at the practical, political aspect. Do you really believe that your three person Board will want to increase its membership, thereby diluting the power of the existing Board members? I think not.
Thus, if you are interested in having the size of the Board increased – regardless of whether the Board has the legal authority to do this or if a Bylaw amendment will be required – you should consider mounting a major political campaign within your association. Treat the situation as if you were running for a seat in Congress. Get a roster of all owners; management may be reluctant to give out names, addresses and phone numbers for privacy reasons, but management should be required to send out any of your announcements to the membership. (You may have to pick up the cost of the postage, if this is not a Board-related project). Select team captains who will carry the message forward, and periodically meet with your team to discuss your progress. Hold informal meetings with as many owners as you can, and perhaps (if the logistics are right) invite owners over to your apartment for coffee, non-alcoholic beverages and cheese, so that you can explain the situation.
In the final analysis, however, even if you are successful in increasing the Board membership, what guarantee do you have that this larger group will “better serve” the owners? You should remind your two other current Board members that you all have a fiduciary duty to all owners, and that each of you must cast your votes based on what you believe is in the best interests of the Association, and not just because one of the other Board members convinced you how to vote.