Articles Posted in Elections

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:
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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).

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