HOA Boards—Don’t let your elections unravel—you need rules Condo Law Guru
04 September 2016
All homeowners’ associations in California are required to have
election rules. Whatever the Bylaws say about elections does not
qualify as “Election Rules”.
The Board needs to adopt a set of rules that has the following in it,
according specifically to California law. In fact, in California, there
is an entire set of laws related to elections and if a Board does not
follow the requirements for an election to amend governing documents,
approve an assessment, or elect board members, the election could be
challenged. Don’t let that happen! Don’t ignore the law – it may come
back to bite you Board.
5105. Election Rules (Davis Stirling Act)
(a) An association shall adopt rules, in accordance with the procedures
prescribed by Article 5 (commencing with Section 4340) of Chapter 3,
that do all of the following:
Many boards just do not get it – that the code requires associations to
have election rules that contain certain provisions, and that having
election provisions in the Bylaws is good, but not a substitute for
adopting a good set of rules and circulating them to owners.
(1) Ensure that if any candidate or member advocating a point of view
is provided access to association media, newsletters, or Internet Web
sites during a campaign, for purposes that are reasonably related to
that election, equal access shall be provided to all candidates and
members advocating a point of view, including those not endorsed by the
board, for purposes that are reasonably related to the election. The
association shall not edit or redact any content from these
communications, but may include a statement specifying that the
candidate or member, and not the association, is responsible for that
Comment: This and (2) can be a
problem if candidates want to make personal attacks and/ or circulate
materials criticizing the Board. There is not a lot a Board can do but
if materials could incite, it would be wise to seek legal advice.
(2) Ensure access to the common area meeting space, if any exists,
during a campaign, at no cost, to all candidates, including those who
are not incumbents, and to all members advocating a point of view,
including those not endorsed by the board, for purposes reasonably
related to the election.
Comment: (1) and (2) will come to be
known as the “equal access” sections. The question will be: does it
mean access must be provided, or just that if it is, it must be equal.
And can reasonable limits be placed, such as frequency of times and
manner of use. There is a 2013 appeals case (Wittenberg) that requires
boards to provide equal access if the board “advocates for” a measure
in an election. And so legal advice may be needed if any question
(3) Specify the qualifications for candidates for the board and any
other elected position, and procedures for the nomination of
candidates, consistent with the governing documents. A nomination or
election procedure shall not be deemed reasonable if it disallows any
member from nominating himself or herself for election to the board.
Comment: It is important to pay
attention to qualifications that appear in the Bylaws and make sure
they get into the written election rules and in the meeting notice
Pursuant to a case in 2013 (Friars Village), the board may consider
adding some qualifications that do not appear in the association
documents, but legal counsel should be consulted as to any limitations
here. The Board in that case added a rule that a husband and wife could
not be on the board at the same time. If candidates who are nominated
and do not qualify to serve that raises a problem. One might ask
whether they can be denied the right to run and/or whether it is
possible for them to cure the non-qualification issue before the
election. Sometimes a hearing is required before anyone can be
deemed “unqualified” or “disqualified”.
It is a dicey subject – the new law says that board may not prevent a
qualified member from running for the board, and this suggests that
members who do not qualify may be eliminated from the election. An
example of something that might apply here (if reflected in the Bylaws)
is “good standing” which is usually defined as current in assessment
payments and not in violation of any governing documents. Sometimes
questions arises as to whether failure to pay fines applies, especially
if the owner has challenged the imposition of fines. And, if a Board
disqualifies a candidate because he or she has too many pets, and a
Board member also has too many pets, you can see that would be a big
problem, and could unravel an election. It would be inconsistent
application of the rules and of enforcement.
(4) Specify the qualifications for voting, the voting power of each
membership, the authenticity, validity, and effect of proxies, and the
voting period for elections, including the times at which polls will
open and close, consistent with the governing documents.
Comment: Proxy use will very likely
confuse people. See the section below regarding proxies for more
information. The biggest difficulty for inspectors will likely be
sorting out questions that arise between the mail in ballot process and
the use of proxies and voting rights, cumulative voting, and combining
nominations from the floor at the meeting. Again, good and legal rules
will be a key to assisting with this.
As to the reference to “polls”, most
associations do not have polls and this is just the sort of example
that makes it clear the legislators do not know much about association
elections. That said, sometimes the [imaginary] polls will close before
the meeting at which the ballots are counted and others will close
during the meeting. Different subject matter may dictate different
processes. If the Board is arranging a presentation before voting, then
ballots might be accepted after the presentation. In other cases, the
ballot packages may be due in before the meeting starts, so a clear
statement to Owners should be made about when the “polls” close.
(5) Specify a method of selecting one or three independent third
parties as inspector or inspectors of elections utilizing one of the
Appointment of the inspector or inspectors by the board.
Election of the inspector or inspectors by the members of the association.
Any other method for selecting the inspector or inspectors.
(6) Allow the inspector or inspectors to appoint and oversee additional
persons to verify signatures and to count and tabulate votes as the
inspector or inspectors deem appropriate, provided that the persons are
independent third parties.
(b) Notwithstanding any other provision of law, the rules adopted
pursuant to this section may provide for the nomination of candidates
from the floor of membership meetings or nomination by any other
manner. Those rules may permit write-in candidates for ballots.
(a) For purposes of this article, the following definitions shall apply:
(1) “Proxy” means a written authorization signed by a member or the
authorized representative of the member that gives another member or
members the power to vote on behalf of that member.
(2) “Signed” means the placing of the member’s name on the proxy
(whether by manual signature, typewriting, telegraphic transmission, or
otherwise) by the member or authorized representative of the member.
(b) Proxies shall not be construed or used in lieu of a ballot. An
association may use proxies if permitted or required by the bylaws of
the association and if those proxies meet the requirements of this
article, other laws, and the governing documents, but the association
shall not be required to prepare or distribute proxies pursuant to this
(c) Any instruction given in a proxy issued for an election that
directs the manner in which the proxyholder is to cast the vote shall
be set forth on a separate page of the proxy that can be detached and
given to the proxyholder to retain. The proxyholder shall cast the
member’s vote by secret ballot. The proxy may be revoked by the member
prior to the receipt of the ballot by the inspector of elections as
described in Section 7613 of the Corporations Code.
Comment: Proxy use will very likely confuse people. How they will fit
in with these new election processes will depend on how associations
integrate them, if at all, and how those reviewing elections that are
challenged rule on their impact and use. There are no proxies in public
elections, but HOA have used them for years and people don’t want to
let go of the option. And to complicate things, most sets of documents
say members can “appear” in person or by proxy at meetings. For the
types of elections covered, it is clear boards should not count proxies
as ballots, but should require the proxy holder to get a ballot package
to vote the proxy. The “revocation” aspect will also be confusing
since ballots returned to the inspectors are not revocable, but proxies
are. If you have a difficult election coming, you would do well to
obtain professional expertise!
There are a lot more requirements found in the law in the 5100 series
of the Civil Code which is part of the Davis Stirling Act. Consult
legal counsel so you can do the elections right, or face having to do
them over again and worse, having to deal with processes put in place
after the election and decisions made that unravel before your eyes.