Reader Questions - HOA Election Glitches [Part 2]

Dear Kelly,

Our HOA recently held elections. I was a write-in candidate. I won a slot on the Board, but was disqualified because I did not notify the association in advance that I was a write in candidate and will accept the role. We have election rules, but no one knows when they were voted on and approved (no minutes can be produced.) Does the law require write-in candidates to provide advance written notification?

T.F., Palm Springs

Dear T.F.,

Civil Code 5105 requires associations to have written election rules. Those rules must be passed pursuant to the rule change process prescribed by Civil Code 4360. If there are no minutes, and no copy of a notice to the membership about the proposed election rules, they might not actually be “operating rules” under Civil Code 4340(a). Did the election rules require that write-in candidates notify the HOA in advance that they would serve if elected? Civil Code 5105(b) says election rules may allow write-in candidates or nominations from the floor, implying that, in the absence of an authorizing rule, write-in candidates or nominations from the floor are not allowed. Rules should address the issue.

Thanks for your question,
Kelly

Mr. Richardson,

Recently, my HOA proposed to change the CC&Rs as regarding board members. Proposal: Elected board members do not have to be association members. Is that legal?

E.M., Rancho Cucamonga

Dear. E.M.,

The law does not require directors to be association members. From time to time I see bylaws which do not require directors to be members of the association they govern. This seems incongruous, since non-members, if allowed to be directors, would be voting upon assessments they do not pay, and enforcing governing documents which apply to the members, but not them. When updating bylaws, associations should not only look at membership as an eligibility minimum, but also consider other issues, such as assessment delinquency, or if the member is in litigation against the association. E.M., read on for another eligibility issue.

Thanks,
Kelly

Dear Kelly,

Our HOA elected the husband of our property manager to our Board. I perceive enormous conflict of interest issues including confidentiality issues, undue influence, privileged information and more. We just were informed (by his wife, the association’s manager), that he is running again. Can you please comment?

R.D., Fountain Valley

Dear R.D.,

Just as I believe associations should not do business with their members, I also believe associations should not hire members as their managers. The conflict of interest potential, and appearance of conflict, are too great. The member-manager is in a difficult position because some members will assume the manager is managing to benefit the manager’s own building, whether or not it is true. When the manager is a spouse or co-owner of a director, the problem becomes extreme.

Under the 2013 appellate ruling in Friars Village v. Hansing, associations can adopt election rules which include board eligibility conditions, so long as they do not contradict the bylaws. I think board eligibility standards are best found in bylaws, but if the association has insufficient participation to amend them, it can amend its election rules by adding eligibility standards. Some disqualifications could include delinquency, unresolved violations, or a co-owner already on the board.

Best regards,
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®.