Reader Questions - Elections: Is That Fair?

Dear Kelly,

I own units in many different HOAs, including one in Huntington Beach.

The HOA board has recently promulgated new rules regarding qualifications required for being elected to the board, and only owners who live on-site in the development are allowed to be elected.

I believe I have been disenfranchised of my rights as a member of the HOA. I am allowed to vote, and required to pay dues and special assessments, but I am prohibited from running for the board!

Kelly, what sayeth thou? Can an HOA Board invent new rules NOT found in any CC&R or other corporation or recorded documents?

J.B., Huntington Beach

Dear. J.B.,

Yes, association boards may adopt election rules imposing additional board candidate eligibility requirements, if the requirements are reasonable and non-discriminatory and do not conflict with the bylaws or CC&Rs. The 2013 case of Friars Village v. Hansing concluded with the appellate court finding in favor of the HOA and announcing this rule.

Some communities contend that only homeowners living at the property can truly appreciate its needs and problems (this is subject to argument), and so they amend bylaws or rules to require residency as a condition of eligibility for the board.

To adopt more permanent eligibility standards, the best way is to seek a membership vote to amend the association bylaws. Association rules can be amended by the board on thirty days’ notice, so they are less permanent than something which requires approval of the entire membership.

If the board passes a rule which is strongly opposed by the membership, under Civil Code 4365 5% of the members can, within 30 days of announcement of the rule change, petition to overturn it. Following receipt of a timely and valid petition, the association must hold a membership vote, and if a majority of a quorum of members vote to overturn the change, the rule is overturned.

Thanks,

Kelly

Dear Mr. Richardson,

Our HOA seeks membership approval for a large loan to maintain and improve the condo property. Ballots were sent to homeowners about 30 days in advance of the due date, and the instruction is that ballots have to be signed by each homeowner. Unsigned ballots will not be counted.

I’m uncomfortable with a non-secret ballot. I’m curious to see your reaction to this process.

J.F., San Diego

Dear J.F.,

Many, if not most, HOA membership votes require the special 30 day notice, secret ballots and double envelopes under Civil Code 5100. Those topics are passing assessments beyond the power of the board, director elections and director removals, grants of exclusive use rights to common area under Civil 4600, amendments to governing documents requiring a member vote, and anything else on which the association rules require voting to follow the procedure. Member approval of loans, if required by the governing documents, is not in that list (assuming the HOA has no rule requiring votes on lending to follow the procedure). However, votes on loans frequently wind up requiring the Civil 5100-5145 process if the loan payments require an assessment beyond the power of the board. If a special assessment or regular assessment increase for the loan payments is beyond the board’s authority, then that vote also must follow the process.

Thanks for your question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.