Reader Questions - Our HOA Stopped Meeting - Is That OK?Aug 31, 2020
Dear Mr. Richardson:
Our board says that due to the pandemic they are suspending board meetings "until further notice." Our bylaws state board meetings must be held at least every 3 months. They said if they do hold a meeting they will limit attendance to 10 members, but the Open Meeting Act says it must be open to all eligible members. The board refuses to hold a meeting outdoors because it's "too much trouble." Is Covid-19 a valid excuse for these restrictions? Has the board overstepped its authority and what can we do about it?
Thank you, G.B., Lakeside
Dear Kelly: Is it legal for an association to not hold meetings for months because of the pandemic? There’s been no attempt by the board to hold a Zoom or any other kind of general session meeting in months. D.L., Mission Viejo
Since the shelter in place orders, our HOA has had two monthly Zoom board meetings, but when members attempted to dial in they were denied access. In my mind this is a serious violation of the Davis-Stirling act. What action can homeowners take to rectify this matter?
Sincerely, A.P., Irvine
Dear G.B., D.L., and A.P.:
Sorry, your concerns are currently typical of hundreds if not thousands of HOAs in California. The Davis-Stirling Act, and the Open Meeting Act contained within it has not been suspended by the pandemic. In fact, HOAs can quite easily adapt and hold board meetings (and most have) while still obeying the health department restrictions on groups of people meeting indoors.
Civil Code Section 4090(b) specifically allows California HOAs to conduct board meetings via telephone or electronic means. The one requirement is that at least one director or other HOA representative is physically present at the announced physical location of the meeting, and that, per Civil Code Section 4925(a), anyone participating via telephone or virtually can hear and be heard by those physically present. This is not difficult and does not require violation of any bans on physical gatherings, since one person can sit in the board room with their laptop or tablet and everyone else can participate virtually via internet platform or telephone conference service. There are various virtual platforms available, and none are expensive, so there is no excuse for boards which refuse to conduct business in proper board meetings.
A board that does not meet is abandoning its responsibility to its association. If it is meeting in secret, or not meeting, or allowing one or two directors to make all decisions, that board is outside the Open Meeting Act and outside proper corporate process and all of its decisions could be subject to legal challenge.
The technology is available and inexpensive to allow boards to meet their important duties and comply with the law. If they seem to be unaware of their options, send the board a copy of Civil Code Sections 4090(b) and 4925(a) and ask them to do their jobs. If they still won’t, then elect directors who will learn how to do things properly and comply with the governing documents and California law.
G.B., D.L., and A.P., thanks for your questions. Based upon the mail I receive, you are not alone.
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®.