4 hours Ago
Q: The board of my association does not like the new law allowing for adjournment to 20% for the adjourned annual meeting so they canceled the annual meeting and have failed to reschedule it so far. The HOA has no election rules.—A.
H., Rancho Cucamonga A: Election rules are required by Civil Code Section 5105. The lack of election rules does not automatically invalidate elections, but such lack makes it far more likely to occur.
If the HOA can under Civil Code Section 5145 show that the HOA’s noncompliance did not affect the outcome of the election, the election should not be voided. Civil Code Section 5115(d)(2) says when the HOA fails to achieve quorum (the minimum number of participating owners per the governing documents) in a directors election “the association may adjourn” the meeting to a later meeting with a 20% quorum requirement. The word “may” in the statute indicates that the reduced quorum meeting is not mandatory, so who decides for the association — the members in attendance or the board? There is a hole in the statute here, because neither answer is perfectly correct.
The membership can’t act without specific authorization because they don’t have quorum, but the board can’t act without the item being on a posted agenda. The cleanest approach is for the board to post an agenda four days in advance of the election announcing that in the event of a quorum failure the board will determine a date for the reduced quorum meeting. The board is not required to do so — it did its job by setting the membership meeting, but, bluntly, the members failed to do their job by not participating.
Q: Our association ballot package for the board election included three candidate statements, one of whom criticized an opponent. In the past, candidate statements included bios, qualifications, and what they had done or will do, but did not mention opponents or endorse other candidates. We objected to the disregard of one of our election campaigning rules that a candidate should not make unsubstantiated claims about and ad hominem attacks of his opponent.
The association attorney reviewed our emails and said no Civil Code was violated and there is no need for further mailings from the association to the membership.—J. K.
, Laguna Niquel A: I haven’t reviewed the candidate statements, but your HOA attorney is probably correct. Civil Code Section 5105(a)(1) does not require HOAs to publish candidate statements, but it does say that if it does, equal access to HOA media must be given to all candidates and “the association shall not edit or redact any content from these communications.” The HOA could adopt a rule encouraging candidates to keep their statements positive, but it could not make that rule mandatory.
Most HOA attorneys agree that the length of candidate statements can be limited and excessive statements can be cut off. HOAs faced with hostile campaign statements could decide to give no HOA media access to any candidate- so long as they treat all candidates equally. HOAs may (and should) add to candidate statements an announcement that the candidate and not the HOA is solely responsible for the content of their statement.
Richardson, Esq. is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.
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