Reader Questions – HOA Elections – Related Inspection Firm, Candidacy Statement Limits, and Campaign Flyers

Dear Mr. Richardson:

According to SB323 management is not allowed to participate in elections. But our management found a loophole – a spouse of one of the owners of the management company opened business as an Inspector of Election. Now this is our Inspector. Also according to Civil Code, candidates and members are allowed to check the election records, including signed envelopes. But now the management does not want to allow it because of Covid 19. Do you know a solution for these problems?

L.R., Walnut Creek

Dear L.R.:

Per Civil Code Section 5110(b), someone already under contract with the HOA cannot serve as Inspector of Election. However, even before the law changed, most managers (and lawyers) did not accept that role due to liability concerns. Small to mid-sized HOAs usually can handle their elections quite adequately with volunteers acting as Inspector, with assistence from the manager. If a management company has a relationship with (or will receive any benefit from) a vendor submitting a bid to the association, it must disclose any such relationships pursuant to Civil Code Section 5375.5. An Inspector related to management might appear be the best choice due to qualifications or cost, but if it raises concerns, it might not ultimately be the best choice. As to inspection of election records, the pandemic did not suspend the Davis-Stirling Act. HOAs and managers need to take reasonable steps to comply, even during these trying times.

Thanks for your question, Kelly

Kelly:

We had a situation where our submission form for board candidacy was limited to a stated length. Some incumbent directors sent much longer candidate statements, far over the stated word limit. We other candidates didn’t know this until our ballots arrived in the mail. I know that all candidates should have access to the same resources, and another candidate too was quite angry.

C.R., San Diego

Dear C.R.:

Unfair elections can be overturned under Civil Code Section 5145 by a Superior Court or Small Claims Court Judge. If the election violates the law, the HOA to preserve the election result must prove to the court that the violation did not affect the election’s outcome. Furthermore, giving an advantage to any candidate discredits the legitimacy of the HOA’s governance. Managers, boards and HOA lawyers should be careful to make sure no candidate receives an unfair advantage and that violations of election policies are handled fairly. Many of my clients with candidate statement length limits simply cut off each word after the limit, and then publish the shortened statements.

Hoping the next HOA election is handled better, Kelly

Kelly:

Can I post an election flyer on the neighbors’ doors informing them about why they should vote for me to be on the board? I think this is free speech.

Thanks, D.O., Tustin

Dear D.O.:

Civil Code Section 4515(b)(5) allows members to distribute or circulate ”information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members,” so long as such distribution or circulation is “at reasonable hours and in a reasonable manner,” so be careful to be considerate and careful in that effort.

Best, 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®.