Community associations on occasion face the issue of whether an owner may give a non-owner a power of attorney to engage in association business, or have access to association property. A power of attorney is a legal instrument that is used to delegate legal authority to another. In the community association context, an owner may give a power of attorney to a non-owner to assert certain membership rights or otherwise act on behalf of such owner. The most common types of non-owners claiming membership rights through a power of attorney are spouses or relatives of owners, attorneys, real estate brokers and certain financial entities. The question arises, however, as to which rights and privileges may be designated to a non-owner through the use of a power of attorney.
 
Fortunately, in some situations the law is clear on whether a non-owner may act on behalf of an owner pursuant to a power of attorney.  The Colorado Common Interest Ownership Act (CCIOA), for example, provides that all financial and other records of the association shall be made reasonably available for examination by any unit owner and such owner's authorized agents. Thus, an owner may grant his or her agent a power of attorney to obtain and/or review the records of the association that are available to such owner.
 
Another example is in the attendance of meetings. CCIOA states that all regular and special meetings of the association’s executive board must be open to attendance by all members of the association or their representatives. Thus, an owner may give a non-owner a power of attorney to attend such meetings on behalf of the owner.
 
Can an owner, however, give a power of attorney to a non-owner to run for the Board of Directors? Can a renter serve on the Architectural Control Committee? Can a spouse or relative of an owner be appointed to the position of Secretary?  Can an owner give a power of attorney to a non-resident to use the clubhouse or pool? The answer is document specific. In other words, one must look at the governing documents to determine the eligibility requirements of a Board or committee member. Many governing documents allow any "member" to run for the Board of Directors and more often than not, "member" is defined as the "record title owner" of a unit. Thus, an individual who is not the "record title owner" (i.e., named on the deed as owner of the property in question) may not serve on the Board of Directors regardless of whether such individual has a power of attorney. The most common example occurs when a non-owner spouse wishes to run for the Board of Directors, but such spouse is not named on the deed. If the governing documents restrict Board of Director membership to "record title owners", then such spouse may not be elected to the Board. A power of attorney may not be used to contravene the specific language of the governing documents.
 
Some governing documents do not limit Board or committee membership to owners. In those cases, an owner may give a power of attorney to a non-owner to run for the Board or committee. Keep in mind, however, that there may be other ‘collateral’ requirements in the governing documents that prevent non-owners from being on the Board or committee (i.e., requirements that a Board member be a resident, in good standing, not in violation of the covenants, etc.).

Unfortunately, in some instances the answer is not so clear. For example, what if the governing documents require that the Board be made up of “record title owners,” but the owner of a particular unit is deceased?  May the trustee of the deceased owner’s estate, who, in such case, holds title to the unit while probating the estate, run for the Board of Directors? In cases where a trustee is asserting the right to run for the Board of Directors pursuant to a power of attorney, make sure no other eligibility requirements limit Board membership. For example, the governing documents might require that Board members be residents of the association. Regardless of whether the trustee has a valid power of attorney to act on behalf of the owner, unless the trustee is a resident of the association, the trustee may not run for the Board of Directors.
 
What if the governing documents state that an owner, or his or her family members, tenants or guests, has the right to use any of the recreational facilities in the community, such as a clubhouse or a swimming pool?  In such cases, because the use of such facilities is not limited to residents, a non-resident may be able to argue an absolute right to use the swimming pool / clubhouse under a power of attorney.  Such unlimited right by a non-resident would contravene the very intent of membership in an association.  Furthermore, the ability of an owner to grant a power of attorney to a non-resident for use of the common area facilities may be construed as opening such facilities to the “general public”, thus raising potential ADA issues. Therefore, it is important to have language clarifying the limitations on use of the clubhouse, swimming pool or other common area recreation facilities. Such clarification may be set forth in a rule or regulation duly adopted by the Board.
 
What if the governing documents do not provide a definition of “members,” or are silent with respect to Board or committee member eligibility? May an owner give a renter a power of attorney to run for the Board or committee? If the governing documents do not provide specific limitations / eligibility requirements on who may run for the Board of Directors or an association committee, a validly executed power of attorney might be upheld. Neither CCIOA nor the Non-Profit Code restrict Board membership to members or owners of the association. Thus, in instances where the governing documents are silent or do not provide clear answers with respect to Board members eligibility, the association should consider amending the governing documents to allow for such clarification.
 
In conclusion, when faced with the issue of whether an owner may grant a non-owner a power of attorney to run for the Board of Directors or an association committee: 

1. Look at your governing documents. Check for eligibility requirements and definitions of “Members” and “Owners” as applicable. Also remember to check whether there are any other restrictions that may prevent non-owners from being on the Board / committee (i.e., residency requirement).

2.  Look at the language contained in the power of attorney itself. Does the power of attorney allow the agent to act for the owner in association matters?

3. If after reviewing your governing documents you are still unsure, consult your attorney.               

4. Amend, amend, amend. If it is not clear - make it clear.