This question comes up more often than you might think, perhaps because there is no straightforward answer.

Are members with criminal records eligible to be board members in a condominium or HOA?

It depends on several variables, but in many cases, yes, they are.

Table of contents

• Can anyone run for a seat on the board?
• Criminal records are not grounds for automatic disqualification
• Consider the severity and type of crime
• Specific rules
• Should communities vet candidates?

Can anyone run for a seat on the board?

No, people who want to serve on the board must meet certain requirements. Those requirements differ from one community to another, but generally speaking, the individual must be:

• 18 years of age or older
• Mentally competent
• In good standing with the corporation or association

Communities can create additional requirements in their bylaws. For example, some communities won’t allow anyone who is not an owner to run.

Criminal records are not grounds for automatic disqualification

A criminal record is documentation of someone’s contact or involvement with the criminal justice system. It includes any crimes the person has been charged with or convicted of.

That means if someone was arrested, but did not actually commit a crime, they would still have a criminal record.

There is a legal process in which a person can request to have their criminal file closed or suspended, but they must participate in a formal process and demonstrate that they have been exhibiting good conduct (i.e. have not been involved in illegal activity since the initial incident).

So, someone who was simply in the wrong place at the wrong time could end up with a criminal record. Most would agree that it would be unfair to disqualify them from becoming board members for that reason alone.  

Consider the severity and type of crime

Condos and HOAs may choose to disqualify members who have been convicted of serious crimes.

In the U.S., communities may be hesitant about letting someone with a felony run for a seat on the board. A crime is usually considered a felony if a sentence reaches a certain length of time or if the person is incarcerated in a state prison. Felonies can be violent or nonviolent.

Most felonies have state-specific classifications to rank their severity and corresponding incarceration and fine guidelines, meaning one state could treat a crime differently than a neighbouring state.

In Canada, the legal system divides offences into three categories: summary, indictable and hybrid offences.

Summary conviction offences are generally considered less serious. The maximum penalty for a summary offence is a fine of $5,000 and a prison sentence of two years less a day.

Indictable offences are more serious. They encompass a wide range of crimes, including treason, sexual assault, terrorist activities and murder. Penalties for indictable offences range from long prison sentences to life imprisonment, and they may have mandatory minimum sentences.

Hybrid offences allow the prosecution to decide whether to proceed with a case as a summary conviction offence or an indictable offence.

Specific rules

A few states/provinces have created specific laws about board eligibility for people who have engaged in criminal activity. This list is not extensive, so be sure to look for laws that apply to your community. 

Florida

Section 718.112(2)(d)(2), Florida Statutes, provides limitations on the ability of felons to serve on the board. Specifically, a convicted felon is not eligible to serve on a community association board “unless such felon’s civil rights have been restored for at least 5 years as of the date on which such person seeks election to the board.”

Florida is very clear on the matter. All of the former felon’s civil rights must have been restored for at least 5 years in order for them to hold the volunteer position.

Ontario

Section 29(1)(f) of the Condominium Act, 1998, requires candidates running for election to the board of directors to make certain disclosures to the corporation before election or appointment. This can be done orally or in writing. Directors must also meet the qualification requirements pursuant to the Act.

While there is nothing in the disclosure that asks about external crimes, the form asks candidates if they have been convicted of an offence under the Condominium Act, or under the regulations within the last 10 years. If the person answers yes, they will be asked to provide a description of the offence.

Answering “yes” to this question does not disqualify a potential candidate. However, they must be honest when filling out the form so that owners can make an informed choice when voting.

California

Civ. Code § 5105(c)(4) states that a person can be disqualified from serving on the board if a past criminal conviction: 

• Prevents the association from purchasing the fidelity bond coverage required by Section 5806, should the person be elected

or

• Would terminate the association’s existing fidelity bond coverage if the person were elected

Conversely, a person can still run even if:

• The person has been convicted of a felony in the past ten years. Felons can serve on the board, provided the association’s fidelity bond is not affected
• The person is a second or third-tier registered sex offender. They cannot be excluded from the board unless it affects the fidelity bond

Neither boards, management companies, nor Inspectors of Elections are required to verify candidate qualifications before mailing out the ballots. However, if a candidate’s qualifications are challenged, the Inspector of Elections must investigate to ensure that the candidate is eligible.

Furthermore, before disqualifying a nominee, the association must allow the person to participate in internal dispute resolution.

Texas

Texas Property Code states that there are only a few restrictions that can be imposed regarding eligibility for the board.

• Bylaws can require one or more board members to live in the subdivision, but they cannot require all board members to live there
• In associations with more than 10 lots, members who live in the same residence cannot serve on the board at the same time
• Board members who were convicted of a felony involving moral turpitude within the past 20 years may be immediately relieved of their position and prevented from serving on the board in the future

Keep in mind that bylaws may add additional restrictions regarding board candidacy.

Should communities vet candidates?

Though it may not be an automatic requirement, many community bylaws will require candidates to undergo background checks before owners can vote for them.

If your condo or HOA does choose to do background checks, make sure the process is valid and consistent. An attorney should review the vetting process and any forms and policies related to the background checks. 

When owners want to run for the board, they should also be asked to sign a release allowing the association to run a background check. But this isn’t always a seamless process if owners are allowed to show up to an annual meeting and seek nomination from the floor.

There is also a small chance that running background checks will scare qualified candidates. Maybe they don’t have a felony, but have a few misdemeanours that they don’t want others to know about.

As for payment, if background checks are standard, then the corporation or association would cover the costs. But if an individual is suspicious of a candidate and doesn’t have a strong case, then the board might ask the individual to cover the costs. If they find something, then perhaps the board reimburses that person.

Conclusion

Having a criminal record does not automatically disqualify someone from running for a seat on the board. The type and severity of the crime must be considered when trying to determine if someone can be trusted to help manage a condo or HOA.

If your board is struggling with this matter, take it to an attorney right away.