It might not be quite that simple. As with most questions regarding the functioning of shared interest communities, the answer usually lies in the governing documents. To get more insight on this particular query, CooperatorNews reached out to Richard Klein, a partner at the law firm of Dorf Nelson & Zauderer, a law firm based in Rye, New York.  

COOPERATORNEWS: Welcome Richard!  

RICHARD KLEIN: “Thanks for having me.”

CN: Typically, who is eligible to sit on a co-op or condominium board in New York?  Are the rules different for co-ops and condos?   

RK: “To begin, you need to look at your governing documents such as the bylaws, and also the certificate of incorporation, in the case of co-ops. Surprisingly, the only state-wide restriction in New York is that the person must be over the age of 18, and must be an individual; an entity such as an LLC cannot be a board member. The rules are not necessarily different for a condo. It should be noted that some bylaws are written so broadly and with few if any specific requirements that my 93-year-old mother in Manhattan could potentially serve on the board of a Westchester County co-op or condo. In the end it all depends on the documents.

CN: Can you tell us more about which governing documents lay out the eligibility criteria for board service?  

RK: “The rules are dictated in the bylaws. In co-ops, reference should also be made to the certificate of incorporation, because sometimes there are restrictions in the certificate that must be observed, but are not referenced in the bylaws. The issue for most communities is that these documents were written by the original sponsor of the building, often back in the 1980s or earlier. So much has happened in the intervening years that these rules may not address. Plus, many rules were originally written to keep the power with the sponsor, and that might not be relevant any longer.”

CN: Can these rules around eligibility be amended, and if so, what is the process?  Does state or federal law come to bear on amending your building’s criteria at all, or is it purely the jurisdiction of each communities’ governing docs?   

RK: “Most if not all bylaws provide a process for amendment. Typically, they provide that the board may make amendments as they deem necessary.  

“However, one restriction is that typically the board may not amend a bylaw passed by the shareholders. For example, if the shareholders voted to have a five-member board, the board cannot then unilaterally amend the bylaws to increase it to seven directors. A further restriction, assuming the sponsor still owns units in the building, might be that the board cannot amend a provision that affects the sponsor. For example, the bylaws might have a provision stating that so long as the sponsor holds one unit in the building, the sponsor is entitled to at least one seat on the board. Typically, the language would provide that such a provision cannot be amended. 

“Shareholders also usually have a mechanism by which to amend the bylaws. The bylaws will dictate the amount of notice that must be given regarding the proposed amendment, what constitutes a quorum, and how much of a percentage of shareholder votes is needed to pass the resolution to amend any particular provision.”

CN: Why would a co-op or condo community choose to change its rules for board eligibility? Does this happen frequently? 

RK: “This actually happens fairly frequently. I’ve seen co-op bylaws amended to make it so that a director must be an actual shareholder or, in the case of a condo, the actual owner in title of the unit in order to serve on the board. I’ve seen boards mandate that board members must physically reside in the building as their primary residence. 

“I had one co-op where the board president was concerned about a rival trying to unseat him. That rival did not live in the building. The president convinced the board to make residency a requirement for board eligibility.  But then one year later because of a growing family, the president had to move out of the building, and reluctantly had to resign from the board.

“I have also seen boards try (unsuccessfully, it should be noted) to restrict certain professions, such as residential realtors or people in the property management business from being on the board because of what’s perceived as a potential conflict of interest.”

CN: Thanks so much for taking some time out to speak with our readers today—this has been illuminating!

RK: “Any time! Thanks for having me.”