Q: A careful reading of the election statutes indicates non-members still have ways to be HOA Board directors and HOA officers. Section 5100(g)(3) says “An association shall disqualify a person from nomination as a candidate if the person is not a member of the association at the time of the nomination.” I wonder about write-ins or appointments. — B.D., San Diego
A: Civil Code Section 5105(f) says that if nominees are disqualified that directors must be held to the same standards, so the candidate eligibility standards in the election rules can disqualify directors who fail to meet those standards. Appointing a director or write-in ballots therefore does not avoid those standards.
Q: In the past, homeowners have always been able to write in a candidate (especially themself) for our HOA board. This year a homeowner wanting to be a write-in candidate was told by a new manager that her name could not be written in as the rules had changed. Nothing was provided to show proof of this. If a rule had been changed — shouldn’t the homeowners been given advance notice of this? Can the homeowners write in the candidate(s) on the current ballot? Thank you. — M.A., Dana Point
A: Under Civil Code Section 5105(a)(3), association election rules cannot bar someone from nominating themselves. However, a write-in ballot is a nomination after the 30-day nominating period prescribed by Civil Code Section 5115(a). After the nominations period, Section 5115(b) requires announcement of the candidates and the date, time, and location of the election, at least 30 days before ballots are sent to the members. A write-in nomination or a nomination from the floor is after the nomination period, and therefore not announced in the pre-balloting announcement. For those reasons, I believe the law implicitly does not allow nominations from the floor or write-in ballots, and I routinely recommend to my clients that their election rules not allow them, to avoid possible confusion.
Q: Our HOA board does not appear to follow the legal procedures for nomination and announcing election results. For several past HOA board election cycles, no nomination forms have been sent to homeowners. We have received only a ballot of incumbents. One board member told me that interested candidates may send a message to the HOA office. Also the election count has rarely reached our CC&R’s quorum of homeowners and the results are not announced. Would either of these problems invalidate board elections? Do homeowners have recourse? — P.M., Avalon
A: Civil Code Section 5115(a) requires general announcement of the nominations procedure and deadline. Failing to open a nominations period and call for candidates could be the basis of a challenge to the election and result in a judge setting that election aside. If quorum is not met on the first attempt at a directors election, Civil Code Section 5115(d) allows HOAs to announce a meeting with a quorum of 20% of the membership. Civil Code 5120(b) requires that the election results be announced within 15 days of the election. However, since a late announcement would not change the election’s outcome, it should not be overturned by court under 5145(a).
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.