So, you serve on a property owners’ association (“POA”); or maybe you are a manager that represents owners that serve on the POA board. Have you ever asked yourself why do I (or they) do it? It is certainly not for the high-fives, handshakes, or hugs. While the goals of POA boards and volunteers may not be global in scope, POAs do more to “tidy up our own small corners of the world” than perhaps any other organization. The presence of such nonprofits can be seen in almost any urban or suburban community in the United States. POAs are increasingly prolific examples of a volunteer organization at its best. Because it is essentially a volunteer organization, a POA faces the same issues as other volunteer organizations. For members of a POA, and perhaps especially for members serving as officers or on the POA’s board of directors, the issue of personal liability arising from service in the association is of particular concern. This article will briefly discuss standard of care statutes and common law as well as the Texas Charitable Immunity and Liability Act and the Federal Volunteer Protection Act of 1997 as examples of a statutes granting immunity protection to POA volunteers.
The Doctrine of Charitable Immunity Today:
Since 1986, most states have enacted legislation that provides some form of immunity or liability protection for volunteers, directors, officers and/or members of charitable organizations. In addition, the federal government has also taken action in the form of H.R. 911, which would require states to provide immunity to volunteers or risk losing federal funds. The Texas legislature has found that charitable organizations are needed to perform essential services and that Texas citizens have an interest in the continued and increased delivery of such services. Therefore, the Texas legislature enacted the Charitable Immunity and Liability Act of 1987 to “reduce the liability exposure and insurance costs of these organizations and their employees and volunteers in order to encourage volunteer services and maximize the resources devoted to delivering these services.”
The Texas Business Organizations Code:
In order to analyze the application of charitable immunity provisions to a POA, a look at director and officer standards of care for non-profit corporations under the Texas Business Organizations Code (the “Code”) is prudent. Specifically, Sections 3.102, 22.221, 22.223 and 22.235 of the Code establish standards of care and protections for nonprofit corporation directors, officers and governing persons in performing their duties. Please note, however, that these standards may not be applicable to condominiums whose Declaration was recorded on or after January 1, 1994 or POAs that have higher standards established in their governing documents.
Section 22.221 of the Code addresses a director’s standard of care and Section 22.235 addresses an officer’s standard of care both providing that as long as a director or officer discharges his/her duties “in good faith, with ordinary care, and in a manner the director [or officer] reasonably believes to be in the best interest of the corporation” then that director or officer is not liable to the corporation or another person.
Lastly, Section 3.102 of the Code establishes the good faith and ordinary care prongs under Sections 22.221 and 22.223 for directors, officers and governing persons including committee members when the person relies on “information, opinions, reports, or statements, including financial statements and other financial data, concerning a domestic entity or another person and prepared or presented by: (1) an officer or employee of the entity; (2) legal counsel;
(3) a certified public accountant; (4) an investment banker; (5) a person who the governing person reasonably believes possesses professional expertise in the matter; or (6) a committee of the governing authority of which the governing person is not a member.” The only caveat is that if the governing person has knowledge of a matter that makes the reliance unwarranted, that person cannot rely on the profession information to establish good faith and ordinary care.
The Texas’ Charitable Immunity Act of 1987:
In addition to a POA’s general standard of care, the Texas Charitable Immunity and Liability Act of 1987 (the “Act”) also provides protection for POA directors and officers against parties other than the organization or its members. The Act grants immunity from civil liability for volunteers. If a volunteer is serving as an officer, director or trustee of the POA, he/she is immune from civil liability for death, damage or injury resulting from the volunteer’s acts or omissions if the volunteer was acting within the course and scope of his/her duties or functions within the association. If a direct service volunteer is acting in good faith and within the course and scope of his/her duties or functions within the organization, he/she is also immune from civil liability for any act or omission resulting in death, damage or injury.
Perhaps the most important thing to keep in mind about the Act is that it does not limit or modify a board member’s or officer’s duties or liabilities to the organization or its members. This means that while an association member may be immune from suit by another association member, the board of directors and the association’s officers can still be held liable by an association member. This is significant in that the vast majority of litigation against POAs is instituted by its members.
The Volunteer Protection Act of 1997:
Moving on to Federal law, the Volunteer Protection Act of 1997 sets forth regulations protecting volunteers such as those serving on their POA boards. It provides volunteers of non-profit organizations are not liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if the volunteer was acting within the scope of the volunteer’s responsibilities in the non-profit organization or governmental entity at the time of the act or omission, the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer, and the harm was not caused by the volunteer operating certain vehicles.
Overall, both Texas and Federal law have recognized the need for POA volunteers and have set forth various protections to encourage volunteerism. To learn more about this important topic, please join Equity Shareholder Clint Brown on January 20, 2021 at 11:30 a.m. for a webinar on Standard of Care and Volunteer Immunity. During this time, Clint will go into further detail on the legal protections for POA volunteers, the standards for POA directors and more. To register for the event, please visit:
 TEX. CIV. PRAC. & REM. CODE 84.001 et seq.
 42 USC § 14501
 See Marc D. Markel and Jeffrey D. Roberts, Volunteer Immunity in Community Associations, a Survey of State Laws, Community Associations Institute (2013); See also ALA. CODE 10-11-3 (1987); ALASKA STAT. § 9.17.050 (SUPP. 1991); ARIZ. REV. STAT. ANN. § 10-1017 (1990); ARK. CODE ANN. 16-6-101 ET SEQ. (MICHIE SUPP. 1991); CAL. CORP. CODE § 5239 (WEST 1990); COL. REV. STAT. ANN. § 13-21-116 (BRADFORD 1987); CONN. GEN. STAT. ANN. § 52-57M (WEST 1991); DEL. CODE ANN. tit. 10, § 8133 (SUPP. 1990); FLA. STAT. ANN. 607.1645 (WEST SUPP. 1992); GA. CODE ANN. 14-3-113.1 (1989); HAW. REV. STAT. ANN. 5 415B-158.5 (SUPP. 1989); IDAHO CODE 6-1605 (1990); ILL. ANN. STAT. CH. 32, PARA. 108.70 (SMITH-HURD SUPP. 1°92); IND. CODE ANN. 34-4-11.5-2 (BURNS 1986); IOWA CODE ANN. 613.19 (WEST SUPP. 1992); KAN. STAT. ANN. 60-3601 (SUPP. 1991); KY. REV. STAT. ANN. 273.187(2), 273.215(5), 273.250 (MICHIE 1989); LA. REV. STAT. ANN. 9.2792 (WEST 1991); ME. REV. STAT. ANN. TIT. 14, 158-A (WEST 1991); MD. CTS. & JUD. PROC. CODE ANN. 5-312 (1989); MASS. GEN. L. CH. 156B, 13 (1992); MINN. STAT. ANN. 317A.257 (SUPP. 1992); MISS. CODE ANN. 79-11-181, 79-11-267, 79-11-275 (1991); MO. REV. STAT. 355.107 (VERNON 1991); MONT. CODE ANN. 35-2-416, 35-2-441, 35-2-516 (1991); NEB. REV. STAT. 25-21,191 (1989); NEV. REV. STAT. SECT 41.480 (1991); N.H. REV. STAT.ANN. 508.16 (SUPP 1991); N.J. STAT. ANN. 2A:53A-7, 2A:53A-7.1, 2A:62A-6 (1987); N.M. STAT. ANN. 53-8-25, 53-8-25.2, 53-8-25.3 (1983); N.Y. NOT-FOR-PROFIT CORP. LAW 720-A (MCKINNEY SUPP. 1992); N.C. GEN. STAT 1-539.10 (SUPP. 1991); N.D. CENT. CODE 10- 24-05 (SUPP. 1991); OHIO REV. CODE ANN. 2305.38 (ANDERSON 1991); OKLA. STAT. ANN. TIT. 18, 866 (WEST SUPP.1992); OR. REV. STAT. 65.151, 65.357(4), 65.369, 65.377 (SUPP. 1992); PA. CONS. STAT. 5552, 5712 (1992); R.I. GEN. LAWS 7-6-9(1985); S.C. CODE ANN. 33-31-180 (LAW. CO-OP 1990); S.D. CODIFIED LAWS ANN. 47-23-2. 47-23-29 (1991); TEX. CIV. PRAC. & REM. CODE ANN. 84.001 ET SEQ. (WEST 1992); UTAH CODE ANN. 16-6-26, 16-6-107 (1991); VT. STAT. ANN. TIT. 11, 2358 (1984); VA. CODE ANN. 13.1-870.1 (MICHIE 1989); WASH REV. CODE ANN. 4.24.240, 4.24.250 (1988); W. VA. CODE 55-7C-3 (SUPP. 1992); WYO STAT. 17-19-612, 17-19-830(B), 17-19-842(D).
 H.R. 911, 100th Conq., 1st Sess. (1987).
 TEX. CIV. PRAC. & REM. CODE § 84.003(1) (West 2011).
 Id. at 84.002(6).
 TEX. CIV. PRAC. & REM. CODE § 84.002(7).
 TEX. PROP. CODE § 82.103.
 TEX. BUS. ORG. CODE ANN. §§ 22.221, 22.235 (2011).
 TEX. BUS. ORG. CODE ANN. § 3.102 (2011).
 TEX. CIV. PRAC. & REM. CODE 84.001 et seq.
 TEX. CIV. PRAC. & REM. CODE § 84.004.
 TEX. CIV. PRAC. & REM. CODE at § 84.004(a).
 Id. at § 84.004(b).
 Id. at 84.007(b).
 Or an officer or director immune from suit by another officer or director.
 42 USC § 14501.
 42 USC § 14503 at (a).