Q: Our HOA ballot package for the board election included 3 candidate statements that endorsed themselves as a slate, one of whom also criticized their opponent.
In the past, candidate statements included bios, qualifications, and what they had done or will do, but did not mention opponents or endorse other candidates. The nomination forms asked for candidate statements of qualifications.
We emailed objections that equal access to election campaigning was not afforded to 2 candidates whose statements gave their qualifications only. We also objected to the disregard of our election campaigning rule that candidates should not make ad hominem attacks of opponents. The association attorney reviewed our emails and said no Civil Code was violated.
What actions can we take to remedy what we think is an unfair ballot package? — J.K., Laguna Niguel
A: Your HOA’s attorney is correct. Civil Code Section 5105 requires HOAs to adopt written election rules, and subpart (a)(1) of that section says those rules must ensure equal access for “candidates and members advocating a point of view” in an election.
It is unclear if the reference to “members advocating a point of view” applies to board elections, but I think the most reasonable interpretation is that this reference applies to other elections, such as special assessments or governing document amendments.
So, I do not think the HOA is required to allow board candidates AND anybody supporting or opposing candidates to have equal access to HOA media. Note that HOAs are not required to give access – the statute begins with “…if any candidate … is provided access,” but only that any access must be given equally.
Also, the HOA is not allowed to edit or remove any content of a candidate statement, but can add statements and an announcement that the statements are solely that of the candidate. Many HOAs have limits on the length of the statements, but I don’t think requirements as to the subjects of the statement would be enforceable.
Q: Can a HOA hold an election with their 2020 updated election rules if not then updated for, laws changed in recent years – AB 502, SB 391, and SB 432, all which were passed with the 2021 legislature. Don’t these need to be in the election rules now sent out for HOA elections? Which would mean a re-draft and following proper process for amending rules before holding an election? Big fans of your columns. — T.K., Los Angeles
A: California’s HOA election laws have changed many times in recent years, so it can be challenging for boards to keep HOA election rules current. Despite Civil Code 5105’s requirement of written HOA election rules, many HOAs still do not have such rules in place.
While the lack of compliant election rules is a violation of the law, it does not necessarily invalidate the HOA’s elections. Civil Code Section 5145, which authorizes a lawsuit for noncompliance with the applicable statutes, requires the court shall void the election for violations of Civil Code Sections 5100-51135 UNLESS the HOA establishes that the violation did not affect the outcome of the election.
It’s very difficult to hold compliant elections without up to date election rules in place, so that should be a high HOA priority.
Kelly G. Richardson CCAL 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. Send column questions to Kelly@roattorneys.com.
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