Q: We thought it was not legal to use any HOA facilities or resources for political purposes. A HOA resident has announced their intentions to run for public office in a posting on our HOA website. In the past, no one else has been permitted to do this. Have there been changes in the laws that now permit this? — P.G., Menifee
A: The statutes regulating HOA elections (Civil 5100-5145) do not allow HOAs to take sides. There is another statute, Civil Code Section 4515, which protects the right of homeowners to hold meetings within the HOA regarding matters of public interest, including public elections. However, that statute does not authorize HOAs to endorse candidates in public election contests. Such an action could possibly be considered outside the association’s corporate purpose. There is some authority that if there is a political issue that clearly affects the HOA’s interests – such as a proposed airport near the HOA – the HOA could support a side in that battle. I think your HOA management and board should stay out of public election contests, even if the candidate is one of the HOA neighbors.
Q: Yesterday we had our annual meeting but ballots were not opened because we did not meet quorum. One of the candidates is not an owner. I called the Inspector to say that I’m contesting the election because one of the candidates does not meet the mandatory qualification. So far I have not heard back. The Inspector was sent a copy of the deed; the candidate is not on the deed. This doesn’t sit well with me. — Y.R., San Diego
Q: We have 5 board members. In the last election, a board member filed for reelection. Before the ballots were counted, he sold his unit. He won reelection and then resigned when his unit sold. To me, this invalidates the election, but management claims this is fine. The board operates with 4 members. Also, the board refuses to appoint a replacement. What is the law? — M.D., Tustin
Q: Per Civil Code Section 5105(b) candidates MUST be disqualified if they are not HOA members. So, Y.R., that candidate should not have been allowed to run, and could not serve because nominating requirements apply equally to directors (Civil Code Section 5100(d)(2)).
If an ineligible candidate is allowed to run, it is a violation which could affect the outcome of the election and be subject to overturning per Civil Code Section 5145. Interestingly, subpart (c) of the statute allows elections to be challenged in small claims court, so long as any monetary demand does not exceed small claims jurisdiction. HOAs need to carefully confirm the eligibility of candidates to avoid possibly having to conduct an election twice.
M.D., Candidates who sell and cease ownership before vote counting lose eligibility, and votes for that person cannot be counted. He could not resign since he was not re-elected. The next place vote recipient should have been declared elected. If there were no other candidates then the board could appoint to fill the vacancy. Check your HOA bylaws. Some bylaws require filling vacancies while others leave it as optional until the next election.
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.