Question: Most owners in our homeowner association are thoroughly dissatisfied with the board and claim that voter fraud got the directors elected. Accordingly, a bunch of us launched a recall, asking for a new election. Our manager is going door-to-door campaigning with some board members, telling owners that another director embezzled money from the association. This is not true.
I thought a manager is supposed to be neutral. This manager wrote and signed a letter stating he is openly supporting the board's three-man majority and circulated it to all homeowners. In preparation for the board meeting, where a package of new debilitating election rules was on the agenda, the manager admits creating and planting posts all over the Internet with subject matter pertaining to abusive board recalls, election rules and amending governing documents to keep owners under control. In running our election, he uses his Internet posts to bolster his advice. He also has advised our board to defer to these California statutes: Elections Code section 3017, 3018, 11007 and Civil Code section 5115.
He advised amending our governing documents to adopt stringent rules that are unfavorable to homeowners. He recommended limiting the amount of board recalls allowed per year. The goal is to create an autocracy with him at the helm. Does this sound right?
Answer: Managers are not supposed to be neutral. They're supposed to be loyal to their employer, the association, and to the owners funding its operations. Loyalty means that an honest manager must oppose a dishonest board.
Managers are not allowed to campaign, let alone with sitting board directors. Managers are not permitted to make statements openly supporting the three-man majority directors. This conduct alone is enough to invalidate your election, but in conjunction with an obviously partisan manager running the election, you and fellow owners have a legitimate challenge to the election outcome.
But "recall" is the wrong word. That term applies only to elected officials. The elections law for homeowner associations, Civil Code section 5100(a), uses the term "remove." What's more, many of the statutes the manager is citing are wrong. For the rules governing elections in common interest developments, the directors should be reading Civil Code sections 5100 through 5105.
Relying on legal advice taken from a website is never a good idea. If your manager is not a licensed California attorney, he cannot advise the board on the law. Doing so means he's "practicing law without a license," which is illegal. Similarly illegal are the false accusation of other board directors and the distribution of libelous and slanderous statements, which may subject the entire association to liability and unnecessary expenditures if a lawsuit is filed by an aggrieved party.
Be wary of anyone proposing frequent changes to your governing documents. Causing amendments and rewrites merely to prevent one of the few exercise of rights afforded to titleholders attempting to protect their assets is not only scandalous, it also disenfranchises owners of vested interests in their property.
Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or firstname.lastname@example.org.