What recourse does a member have if the board refuses to abide by the governing documents or state law? Our president refuses to hold the annual election in an apparent attempt to stay in power.
5% of the members may under Corporations Code 7511(c) send a written petition demanding a membership meeting. However, most likely the board will ignore it. I have seen members announce their own membership meeting, but this is a bad idea because it is too easy to make an error in the very technical election procedures required by Civil Code 5100-5135. A better option may be to file a court petition under Corporations Code 7510(c) for an order compelling an election. This involves legal expense, and is a last resort, but judges are normally sympathetic to these petitions and are willing to order an election. Before going to all the effort and expense of filing a court petition, make sure you have member support (and a few candidates).
Our association did not make quorum, so our election was postponed a month. Each homeowner gets 1 vote, but there were couples at this meeting so some homeowners got 2 votes. Some homeowners returned a handful of ballots they had collected. I was told each homeowner must mail or bring their ballot in themselves. Is this legal?
D.P., Aliso Viejo
Civil Code 5115(a)(2) says that ballots may be mailed or delivered by hand to a location specified by the inspector of elections but does not specify who does that. Election rules could avoid a dispute on this by specifically requiring ballots to be delivered or mailed by the member. Also, each membership has one vote, so memberships shared by a couple should get the same votes as a solely owned membership – one vote.
Dear Mr. Richardson,
I enjoy condo living, though our current manager is condoning practices that don’t seem to align with the law. Our board has been complicit and dysfunctional – only one member was elected as the others who won election all resigned – replaced by appointees. I seem to recall reading that the law now supersedes the bylaws, rather than the bylaws taking precedence. Could you provide me a reference to that change in the law?
B.N., San Diego
Sorry to hear there is not enough member interest to field board candidates. It can be so discouraging to serve on a board when it seems the members do not care. I assume your association board has mostly appointed directors because your association repeatedly fails each year to attain quorum – the minimum number of participating members to make a membership vote valid.
The general rule regarding governing documents was codified in 2014 by Civil Code 4205 which states the order of priority: California law, CC&R’s, articles of incorporation, bylaws, and lastly rules. Election processes and assessment collection processes, for example, must comply with the statutes on those issues regardless of what the governing documents say. However, the Davis-Stirling Common Interest Development Act still contains many other provisions stating “unless the governing documents provide otherwise.”
Hoping things improve,
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 Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.