Dear Kelly: Our association cancelled the March meeting and then April’s meeting was held by a teleconference with just the board members. Is this legal? We have not received any information about what was discussed in this meeting.
Thank you, S.V., Portola Hill
Associations are finding that virtual web-based platforms work well for board meetings. Civil Code Section 4090 allows for telephone or video meetings so long as all persons can hear and/or see the open session deliberations. The problem is that the statute also requires a physical location to be established where members can physically attend. During the “stay at home” orders, HOAs are unable to accommodate a meeting of many persons in one place, so under unprecedented circumstances that requirement cannot be met. Boards should learn to conduct proper virtual or telephonic board meetings. Also, minutes of that April meeting should have been made available within 30 days of the meeting, per Civil Code 4950. The Open Meeting Act is still in effect, even during the pandemic.
Good Evening Kelly: I read in a recent column that an officer can be replaced without reason at any time by a board majority. Can a board also fire, by majority vote, a board member without cause? Our governing documents are silent on this and we have a divided and feuding board split on every decision. Thanks for the public service you perform.
Best, J.W., Huntington Beach
Normally, HOA bylaws provide that officers serve at the pleasure of the board and can be replaced in an open meeting (after agenda notice) for any reason. If, for example, the president is removed from the office, that person is still a director. However, most bylaws do not give the board the power to remove a director from their seat on the board without cause. Per Corporations Code Section 7222, directors may be removed without cause only by vote of the membership.
Dear Mr. Richardson: Our community was built in the early 1960’s and consists of single-family homes without common property (no pool, park, or community center). The city owns the landscaped medians within the neighborhood. Our bylaws refer to the HOA being a mutual benefit corporation and has language that refers to adhering to Davis Stirling governance requirements but don’t say it is governed under Davis-Stirling. The state corporate filing shows the Davis Stirling box checked. The current board insists the HOA is not under the Davis-Stirling Act so they want to update our bylaws to reflect we are only a mutual benefit corporation. Can you please explain if we can fall under Davis-Stirling with no shared common property?
Thanks, K. B., San Rafael
Per Civil Code Section 4200, if there is some type of separate interest coupled with mandatory membership, and there is recorded declaration, the Davis-Stirling Act applies. I am assuming there is a recorded map which defines each of your residential properties, and you have mentioned there are CC&Rs. Your board needs to recognize that your association was created long before the Davis-Stirling Act became law in 1986. Your HOA’s attorney should check the documents to confirm, but it appears that your association falls under the Act.
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®.