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When voting on HOA issues, there's no room on the ballot for a straw poll

Question: Owners are getting some strange correspondence from our management company that appears prompted by some homeowners renting out their units on the Airbnb platform. One letter, for example, claimed that “rental units lower our property values.”

The company also sent “straw polls” asking owners to “vote” on these issues and more without official notice, meetings or ballots. One such poll requested an “informal” vote on a possible amendment to our governing documents to limit the number of rentals allowed at any one time and to limit any kind of short-term leases. Another polled us on whether to require new owners to live in their unit for a minimum of one year before it can be rented out to third parties. The idea was to discourage investors who might rent out their units on Airbnb.

Is all of this correspondence from the management company necessary? What is the legal significance of “informal” and “straw polls”?

Answer: Correspondence of this nature needs to be at the direction of the board only and in accordance with the Common Interest Development Act. Nowhere in that law does it state “straw polls” or “informal balloting” is an acceptable operating procedure, though it doesn’t explicitly ban them.

From time to time, a board of directors may want to know how the owners feel about various issues. That can be handled through regularly noticed board meetings that ask for comment on an agenda item. The only meaningful way that titleholders can participate in the operation of the association is to exercise their vote on a legitimate ballot.

Flooding owners with “feelers” and “straw polls” asking for votes could have very serious consequences for owners. There is no such thing as an “informal vote,” most especially on governing document amendments. Informal or not, once voted, there’s no law prohibiting the board from using those “poll” results at a later date to justify its actions as sanctioned by the titleholders.

Irrespective of what the board calls it, owners should be cautioned to forgo voting on any “straw poll,” “pre-balloting,” “sample vote” or “informal balloting.”

Too many of these types of polls eventually cause voters to be suspicious about the board’s actions. They also tend to desensitize owners of the importance of voting by making them less likely to pay close attention to legitimate ballots. Boards also risk looking deceitful if they fail to forewarn titleholders that, once voted, there is no guarantee the results of these seemingly innocuous “polls” are not barred from use at a later date.

The correspondence from management taking a position on a particular issue is even more troubling. Any correspondence from management, or the board, is likely to be perceived by titleholders as an “official” association communication. When a management company promotes one viewpoint on an issue that has not yet been put to a vote, it is using association resources to influence an election — and completely overstepping its authority.

These are inappropriate “polls.” Your board should eliminate any unnecessary correspondence with the owners and certainly shouldn’t pay a management company for padding their billing by churning out such nonsense. If the owners are asked to vote on an amendment to the governing documents, then facts — not opinions — must be provided along with a document indicating the affected amendments.

As for the specific issue of rentals, the Common Interest Development Act imposes no legal limit as to the number of rental units that any development should have, though a development’s CC&Rs could conceivably limit the number of rentals allowed.

Further, no matter the speculation, there certainly is no legally verifiable proof that rental units lower property values.

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 noexit@mindspring.com.

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