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 2020 when the election process and procedures were changed, the civil code did not expressly address voting by acclamation. Since 2020, the law has changed, permitting a vote by acclamation in narrow circumstances. Specifically, if an association is over six thousand units. We have heard that some attorneys are telling clients that they can still hold a vote by acclamation if their association has less than 6,000 units. We disagree.
The California Civil Code requires, despite contrary provisions in an association’s governing documents or election rules, that all board member elections, including uncontested elections other than for associations that are 6,000 units or more, be conducted utilizing secret balloting. Associations must abide by these statutory requirements, including holding an election meeting and counting the ballots even if the number of candidates running is equal to or less than the number of board positions to be filled.
The primary, and perhaps most legally sound reason for abiding by formal procedure requirements is the language found in CA Civil Code 5100, which states that “(n)otwithstanding any other law or provision of the governing documents, elections regarding…election and removal of members of the association board of directors….shall be held by secret ballot in accordance with the procedures set forth in this section.” Surprisingly, however, not all community association attorneys agree that the word “shall” is mandatory, requiring that associations hold an election when, in their opinion, deeming the board voted in by acclamation as appropriate. But, there is strong legal precedent to the contrary and association’s would be remiss to follow this advice.