HOMEOWNER ASSOCIATION ELECTION SERVICES

ELECTION LAW and POLICY

INPERSON OR ZOOM MEETINGS AVAILABLE

CALIFORNIA CIVIL CODE SECTIONS 5100–5145

Effective January 1, 2020, Senate Bill 323 (Wieckowski), signed by Governor Gavin Newsom in October 2019, revised the procedures governing most California homeowner association elections and member votes. These requirements may have significant financial and legal implications for community associations.

The California Association of Homeowners Associations provides professional election services tailored to the size and needs of each community. Mailing and related costs vary according to the number of members served.

For more information, please contact:

calmonson3@gmail.com

Call: 951-634-9266

  Elections of Directors and Votes Concerning Assessments and Governing Documents

The effective governance of a condominium or community association depends in large part on compliance with the laws and governing documents applicable to the association. The California Legislature previously enacted election-procedure requirements under SB 61, effective July 1, 2006. Those requirements are reflected in California Civil Code sections 5100–5145 of the Davis-Stirling Common Interest Development Act.

More recently, SB 323 and related amendments to the Civil Code introduced significant changes to homeowner association election procedures.

These election laws are intended to protect the integrity of association elections by requiring specific processes and procedures, including the use of secret ballots where mandated.

The following Election Policy and Procedures, together with appropriate enforcement measures, are intended to support a fair, impartial, and professionally administered election. The Board of Directors has adopted these rules in accordance with the California Civil Code. Where applicable, statutory requirements may supersede conflicting provisions of the Association’s CC&Rs or Bylaws and are enforceable by law. Voting is limited to owners, except where voting by proxy is permitted as described below.

ELECTION POLICY — SB 323 — CALIFORNIA CIVIL CODE SECTIONS 5100–5145

Pursuant to California Civil Code sections 5100–5145, the following rules and procedures apply to elections of directors and votes concerning assessments, governing documents, and grants of exclusive use of common area:

1. NOTICE OF ELECTION OR OTHER VOTING MEETINGS

A meeting convened to conduct Association business, including the issuance of a Notice of Meeting and Agenda, shall be called in the customary manner prescribed by the Association’s CC&Rs and Bylaws. The meeting-notification process remains subject to those governing documents and California Civil Code sections 5100–5145.

2. CANDIDATE NOMINATIONS

The Association shall mail a Candidate Nomination Form to all homeowners at least sixty (60) days before the election. Completed forms must be returned to the Association at least thirty (30) days before the election.

3. INSPECTORS OF ELECTION

The Board of Directors shall select or appoint one or three independent third parties to serve as inspector or inspectors of election. An independent third party may include, but is not limited to, a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. A member of the Association may serve, provided that the individual is not a director, a candidate for the Board, or related to a director or candidate.

The inspector or inspectors of election shall perform the following duties:

a.         Determine the number of homeowners entitled to vote and the voting   power of each homeowner.

b. Determine the authenticity, validity, and effect of any proxies.

c. Receive ballots.

d. Hear and decide all challenges and questions concerning voting rights.

e. Count and tabulate all votes.

f. Determine when the polls shall close.

g. Determine the election results.

h.  Perform any other actions necessary to conduct the election fairly and in accordance with applicable law and Association rules that do not conflict with the law.

The inspector or inspectors of election shall be appointed after candidate nominations close and before secret ballots are mailed to homeowners. They shall also designate the location to which completed secret ballots must be returned.

4. SECRET BALLOTS

The election process is designed to preserve the confidentiality of ballots until counting begins. Ballots, together with two preaddressed envelopes and return instructions, shall be mailed by first-class mail or delivered by the Association to every member at least thirty (30) days before the voting deadline. To protect confidentiality, the ballot itself must not identify the voter by name, address, lot, parcel, or unit number.

The voter shall place the unsigned ballot in the first envelope and seal it. The voter shall then place that envelope in a second envelope and seal it. In the upper-left corner of the second envelope, the voter must print and sign the voter’s name and provide the address and lot, parcel, or unit number that establishes voting eligibility. Failure to follow the Association’s adopted election procedures may invalidate the ballot.

The second envelope shall be addressed to the inspector or inspectors of election responsible for tabulating the votes. A completed secret ballot may be mailed or hand-delivered to the location specified by the inspector or inspectors or completed at the meeting if permitted. Only ballots received before the polls close shall be counted.

5. PROXY VOTING

The secret-ballot process reduces the need for proxy voting because a homeowner may vote by mail. When a proxy is used, any instruction directing how the proxy holder must vote shall appear on a separate, detachable page that the proxy holder may retain. The proxy holder shall cast the member’s vote by secret ballot.

6. CLOSING OF THE POLLS

The inspector of election shall declare the polls closed at the time specified in the Notice of Election and the Official Ballot.

7. COUNTING AND TABULATION OF VOTES

The inspector or inspectors of election shall count and tabulate all votes in public at a properly noticed open meeting of the Board of Directors or the membership. Any candidate or Association member may observe the count and tabulation. No person, including an Association member or an employee of the management company, may open or review a ballot before the designated time and place for counting and tabulation.

As secret ballots are received, the inspector shall record receipt for the corresponding unit on a sign-in sheet. The first secret ballot received for a unit shall be the ballot of record and shall be counted. Any additional ballot received for the same unit shall be deemed invalid and void.

8. REPORTING ELECTION RESULTS

The election results shall be promptly reported to the Board of Directors, recorded in the minutes of the Board’s next meeting, and made available for review by Association members. Within fifteen (15) days after the election, the Board shall communicate the results to all homeowners.

Legal Disclaimer: This document is provided for general informational purposes and is not legal advice. Associations should have their election policies and procedures reviewed by qualified California HOA counsel for compliance with current law and their governing documents.