HOA Law Blog

Blog post by Sandra Gottlieb, community association attorney and Senior Partner at SwedelsonGottlieb

California community association attorneys, managers and others in the industry have differing opinions on how to properly and legally proceed with uncontested elections — elections in which the number of candidates is less than or equal to the number of board positions needed to be filled. Prior to 2006 when the election process and procedures were changed and secret elections were mandated, the answer was simple. No election was required, and candidates were deemed the elected board by way of acclamation. Since 2006, the law has changed, and elections must be held by way of a secret ballot process. Some attorneys know that the days of deeming the board elected by acclamation are over; others think the opposite.

Continue reading "Don’t get Acclimated to Election by Acclamation" »

By David Swedelson, Condo Lawyer and HOA attorney; Senior Partner at Swedelson Gottlieb, Community Association Attorneys

Many California community associations have a difficult time achieving a quorum to hold board elections or to vote on other important association matters. Some condo and planned development homeowner associations have not been able to hold a vote for a new Board of Directors for many years because they require a quorum of at least 50% of the owners. And unlike many other community associations, they do not have a reduced quorum provision in their bylaws that allows them to hold the meeting and take the vote of the owners with 25% of the owners constituting a quorum. Some associations cannot even achieve a quorum with just 25% of the owners.

While it's easy to say that this is a problem that impacts community associations, the fact is that many people just don't care enough to vote even when it comes to the elected officials that run their city, state or their country. Voter apathy is not just a community association problem. And that is too bad, as the right to vote is a privilege; it is how each citizen has a say in how our government is run.

Continue reading "Voter Apathy — It is not Just a Community Association Problem" »

Blog post by David Swedelson, Condo Lawyer and HOA Attorney, Senior Partner at SwedelsonGottlieb

CAI’s California Legislative Action Committee announced this week that it is sponsoring a bill that was introduced into the California Assembly, authored by assembly member Norma Torres, that would make electronic balloting or voting an option for California’s common interest developments. It is about time.

As most of you know (and I say "most" because I’m still seeing associations that are not aware of the 2006 change in the law that requires secret balloting and other changes to how HOA elections are handled -- follow this link for our prior post that addresses these changes), the law requires that California community associations follow a secret balloting process with double envelopes, etc. for specific kinds of elections.

Continue reading "Is Your Community Association Ready for Electronic Voting?" »

By David Swedelson, Condo Lawyer and HOA Attorney

For many associations who are preparing to hold their annual elections, boards and managers are trying to determine who is actually eligible to be a candidate for the board and who can vote. This is a big issue these days as there are so many delinquent owners. Boards and managers are questioning why an owner who is not paying their assessments or is in violation of the CC&Rs or rules should be able to serve on the board. The fact is that for many California community associations, the bylaws and other governing documents may not set out any qualifications for serving on the board. This means that even a tenant or other non-owner can serve on the board.

Follow this link for a PDF of David's full article on this subject.

No joke; this was the headline in a recent edition of the Ventura County Star newspaper. The article describes a bitter neighborhood dispute at the Bridle Path Community Association. There are accusations of ballots not being counted and other election issues. It appears that there is a fight by some to get on the board, all apparently the result of a dispute involving owners who fought to keep eight cows on their ranch style property. The article describes the acrimony at this community and states: “The topper was a FedEx delivery — cow patties (not the kind you eat) nestled in happy face boxes with a knife and fork — sent last spring to four of the five Bridle Path HOA board members. Since then, four board members have resigned for various reasons and replacements had to be appointed to the volunteer positions.” Although these types of disputes are not that uncommon, they are usually not so public. Interesting reading.

The 2009 Condominium Bluebook by Branden Bickel and D. Andrew Sirkin has been published and will soon be available to the general public. The Bluebook is a useful tool for California homeowner associations, providing quick reference to state statutes and court cases, as well as useful forms for required notices and other documents.

This year's Bluebook contains a form (at Chapter 17) entitled "Model Election Rules" which we do not believe is suitable for most associations to simply reproduce and adopt as their election rules as required by Civil Code Section 1363.03. In fact, we doubt that any form election rules could possibly be created to suit all California homeowner associations because election rules are subject to an association's CC&Rs and Bylaws. The provisions in CC&Rs and Bylaws applicable to the election rules vary widely from one association to the next. Following are just a few examples of why we believe the Bluebook's form election rules are erroneous:

Continue reading "Condominium Bluebook's "Model Election Rules" Cannot be Utilized Without Compliance with the Civil Code and the Association's Governing Documents" »

I, along with over 70% of other California citizens, have or will vote today (11/4/08). And then, not wanting to pass up a good deal, I went to my local Starbucks for my free cup of joe. That's right, Starbucks offered a free cup of coffee to anyone that came in with proof that they voted. Then I saw an article on the Internet indicating that the prize offer was a violation of federal election laws and I had a brainstorm. While it may be a violation of federal law to give someone a gift or prize for voting, it is not a violation of law for a community association to offer free food or some other incentive to get owners to vote. However, unless written into your governing documents (and even then I question whether it's enforceable), community associations cannot fine or penalize a homeowner for not turning in their ballot or voting. Why? Because most CC&Rs provide associations with the power to make rules regarding use of a common area and there is nothing in California law or in any governing documents I've seen which would give a Board of Directors the power or authority to penalize a homeowner for not voting. If you are having difficulty getting owners to vote and cannot make a quorum, offer free food or maybe even a certificate for a free cup of copy at a local coffee house (and make sure it is in the budget).