Q: Did state law change reconvened quorums to 20% for all associations, effective 1/1/2025, or must associations continue to comply to the bylaws on quorum until updated by membership? Kelly thank you and your firm for all the help you give the people. — J.M, Tustin.
A: Civil Code Section 5115(d) allows an HOA, after it fails to meet membership quorum to elect directors, to hold a second election attempt with the quorum reduced to 20%. The statute says the HOA “may” hold a reduced quorum election, but does not mandate it.
The statute is very helpful for most HOAs because it allows the reduced quorum election without an amendment to the CC&Rs and bylaws. Note one “hole” in the statute – it says “the association may adjourn the meeting to a date at least 20 days after the adjourned meeting” but it doesn’t specify whether the members in attendance make that decision or if the board does.
The safest bet is to ask members in attendance to move, second and vote to adjourn the meeting and then ask the current board to also approve the adjourned meeting.
Q: Our HOA is going through a recall of our board for the second time in less than 3 years. There’s been disagreement on how many votes are required to recall the board. Is a simple majority or 2/3 required? Whichever is correct, is that a simple majority or 2/3 of the votes cast or of the membership? — V.P., Orange.
A: First, I am so sorry your HOA is having its second recall in such a short time. Recalls are very negative and divisive, but sometimes they are necessary to deal with boards that refuse to govern legally and properly.
Your bylaws or CC&Rs will normally state what vote is required to remove the board. Otherwise, Corporations Code Section 7222 takes over. That statute says that in an association with less than 50 members a majority of all members must vote in favor of removing the director(s). If the HOA has 50 or more members, then a majority of a quorum of the members voting is required to approve removing directors.
Q: Our CC&Rs state owners are automatically HOA members. Our bylaws include an eligibility requirement that the person must own at least 25% interest in a unit or, if ownership is in a trust or business entity, at least 25% beneficial interest in the trust or business entity to serve on the board. A question has arisen as to the eligibility of a person on our board who holds a (25%) beneficial interest not as a owner but strictly as a beneficiary. Is this person eligible as a director? — W.B., Palm Springs
A: Directors must be owners, per Civil Code Section 5105(b). When trusts owns property, Trustees are normally considered the unit’s owner for membership purposes. Beneficiaries normally do not act for the trust, but are the parties protected by the Trustee. Mortgage holders are normally beneficiaries of a deed of trust but are not owners of the mortgaged property. Check with your HOA’s legal counsel on this- there may be other nuances in your HOA’s governing documents.
Richardson, Esq. is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com.