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Managers can't make up HOA election procedures on the fly

Question: Our bylaws require an election committee created by the board to supervise elections and create rules to ensure they are fair. That includes the nominating process and voting procedures since our bylaws and covenants, conditions and restrictions are silent on the specifics. However, it seems that our management company has decided to insert itself in the process in the absence of clear direction from the board.

The management company chosen by the board to be inspectors of elections and to conduct our board-removal election unilaterally included this paragraph in the notice of a special meeting: "Interested candidates MUST be registered no later than [date]. This form may be returned by mail to the address below. Each candidate should submit, along with this form, a biography statement of no more than one side of one 8 1/2" x 11" sheet of paper. Include in your statement your qualifications, how long you have lived in the community, a brief background including education, and why you want to serve on the Board of Directors."

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Many of us are confused. Nothing in our governing documents requires those paragraph items and the board has not established a rule requiring it. The paragraph also omits the word "nominate." How do we get nominated to run for the board?

Also, our association utilizes proxies, but the form does not mention proxies. How do we use a proxy to vote a ballot?

Answer: Managers and management companies cannot unilaterally request biographical statements any more than they can dictate what should be included in them. The special meeting notice also is confusing — it says that candidates "MUST" be registered by a certain date but only that the form included "may" be returned and that candidates "should" submit a biography with certain statements. The word "must" implies a requirement but "may" and "should" are merely permissive suggestions.

The election rules required by your bylaws are also required by Civil Code section 5105 and for good reason — without clear rules and procedures, titleholders cannot effectively exercise their right to vote. In addition to requiring equal access to the common areas for campaigning, Section 5105 requires associations to adopt rules that "specify the qualifications for candidates for the board and any other elected position, and procedures for the nomination of candidates" and that "specify the qualifications for voting, the voting power of each membership, the authenticity, validity, and effect of proxies."

The inspector cannot unilaterally impose restrictions and requirements on your election that are not described in your governing documents or approved by a duly created election committee — and documented in board meeting minutes — and distributed to all titleholders in a timely manner prior to the election. If an election moves forward without proper rules then under Civil Code section 5145, an owner may bring a civil action against the association for breaking the statutory election laws within one year of the date of the violation. On finding that the election procedures or adherence to rules were not followed, a court may void any results of the election.

Civil Code 5105(a)(3) permits candidates to nominate themselves for consideration for election to the board. But if you are confused by the special notice, then it is likely other owners are too. In addition to making clear that the additional candidate items requested are not necessary, the board should immediately take steps to clarify the election procedures and implement unequivocal rules before moving forward with an election. The new rules should be tailored to the governing documents for that particular association. The accompanying notice should be equally explicit as elections are too important for owners to be expected to guess what a notice actually means.

If your association's governing documents allow proxies, then any titleholder using a proxy should send their authorized representative, with written authorization, to the special meeting to vote for them and with a signed proxy in order to be able to exercise that vote. However, the board and inspector of election are not required under state law to distribute proxies for the titleholders to use.

While there may be a multitude of websites that offer free sample forms, it is best not to rely on them. Corporations Code 7613 spells out the uses and limitations of proxies but it is silent on how they should be constructed. However, there has been litigation over this issue and the essential elements of a valid proxy are minimal and easily fit on a single 8 1/2-inch by 11-inch sheet of paper. Include the association's name and address, your printed name and address, as well as the name of the person serving as your proxy. Then sign and date the form. Though not required, you should seriously consider notarizing it as a precautionary measure.

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 ornoexit@mindspring.com

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