Lawyers Answer Question on Recalling Board

In the Condo Q & A column of April 22, a reader inquired about challenging the results of votes cast in a board election or recall. Attorneys were invited to respond and several have written to offer their expertise and guidance. Here is the question as it originally appeared and excerpts from two of the many responses from attorneys.

QUESTION: What is the proper procedure to follow in challenging the results of votes cast in a board election or a board recall? Should a demand for recount be stated immediately upon the announcement of the result of the vote? Who would have the duty to recount the votes?

ANSWER: Janet L. S. Powers is an attorney specializing in community association law, with the law firm of Fiore, Nordberg, Walker & Woolf-Willis in Irvine and Riverside.

Powers writes that the legal authority to challenge elections appears in Section 7614 of the California Corporations Code. That section states that in advance of an election meeting the board may appoint inspectors of election to oversee the voting.

“If inspectors of an election are not appointed or if any person who is appointed fails to appear, then the chairman of the meeting may, and on the request of a member shall, appoint inspectors of election at the meeting,” Powers writes.

“The number of inspectors must be either one or three. If the inspectors are appointed at the meeting on the request of a member, then the majority of members present either in person or by proxy will determine whether one or three inspectors are to be appointed.”

The inspectors of election are responsible for determining the number of memberships, the voting power of each, the number represented at the meeting, the existence of a quorum and the authenticity of the proxies. They are responsible for the fairness of the election, the balloting process and the vote tabulation, though the inspectors need not be the persons actually tabulating the votes.

The member who wishes to challenge the results of an election should so state to the inspector of the election and request a recount at that time.

“If the inspectors are confident that the count has been properly tallied, they could deny the member’s request,” Powers said.

“However, since the inspectors are charged with acting in a fiduciary capacity and must sign a certificate evidencing the results of the election, it is hard to imagine that a truly fair inspector of election would not agree to the demand of a member and order a recount.”

If the member is still convinced that the election results are inaccurate, the member can file a court action within nine months of the election. In the absence of fraud, any election, appointment or removal of a director is presumed to be valid if no action is filed within the nine-month period.

Attorney Timothy G. Dallinger, whose law firm Marino & Dallinger is in Sherman Oaks, also explained Section 7616 of the California Corporations Code.

“Section 7616 provides that any member or person who had the right to vote in an election may file an action in the Superior Court to determine the validity of any election or appointment of any director of any corporation. The court is obligated to hold a hearing within five days in order to determine the propriety of an election . . . including voting rights and all relevant issues.

“In answer to the writer’s question, though a public statement at the election may help to resolve a challenge without the need for litigation, no such statement is required in the Corporations Code as a prerequisite to the filing of a court action.”

Attorney Dallinger cautions, “Be careful of any and all statements made at a meeting of members that are critical of another person or which expressly accuse another person of any dishonest, unprofessional, fraudulent or potentially criminal act. While challenging the results of an election, one may create personal liability for oneself by having defamed or caused emotional distress to another.”

Clear-Cut Solution to Replacing Windows

Q: I am on the board of directors of our 18-unit condominium association. One of the units has just been sold and the new owner has requested that the association replace some cracked windows in his unit. In 25 years of operation, we have never had to deal with this issue. Is the association responsible for the windows? What about the window screens?

A: First, look at the association’s legal documents. The declaration should define ownership and differentiate between common area maintenance and unit owners’ responsibilities. It may also refer to “exclusive-use common areas” such as balconies or garage spaces that, for practical purposes, are a part of the unit because they are used exclusively by the individual-unit owner.

If the association’s documents do not specify the association’s maintenance responsibilities and the owners’ maintenance responsibilities, then the California Civil Code, Section 1364, states that exclusive-use common areas are the responsibility of the individual unit owner. Unless stated otherwise in the association’s documents, the windows and screens are defined in Section 1351 as “exclusive-use common areas.”

If the association’s documents are unclear, consult an attorney who specializes in community association law. Consulting an attorney is wise when you consider the cost of maintaining the windows and screens for the entire life of the project. Some associations are willing to pay for maintenance of balconies, awnings and other “exclusive-use common areas” for the sake of uniformity and quality control.

It’s One of Those Jobs Someone Has to Do

Q: Since many of your letters are from disgruntled condo owners, perhaps at some time you might point out that many board members work very hard as unpaid volunteers on behalf of our neighbors while the majority sit back and do nothing. It can be very time-consuming dealing with the management company and subcontractors, writing newsletters, etc.

Our board enforces our association’s legal documents as fairly as possible, with an eye on our property values. It can be irritating when the only time we hear from some homeowners is when they want to be the exception to the rule.

As you have pointed out in your column, all homeowners have a legal involvement in their association, and there is a responsibility attached. Could you please comment?

A: I couldn’t have said it better. As I have stated said, I am the president of the association where I live. Time after time, our board has asked for volunteers to fill vacancies on the board or committees. The percentage of participants is very low.

We don’t have too many complainers in my association, but as a community association manager, I’ve seen plenty over the years. It seems that any decision that board makes will displease someone. I advise putting the complainers on a committee. Give them something constructive to do.

If the board is well-organized and efficient, that often results in even greater apathy. As long as the board is doing a good job, board meeting attendance is pretty low. I’ve heard one manager jokingly say that the only way to get a good attendance at a meeting is to tell the owners that the assessment are going to be increased by 100%!

Well, enough sympathy for the overworked board members out there. I have a bit of tongue-in-cheek advice. Board members should smile all the time and tell everyone how much fun they are having. That’s the only way they’ll ever convince someone else to serve so that they can retire from the board.

Now a word to those who chronically complain or never volunteer: If you’re too busy to serve your association, the least you can do is attend the annual meeting and participate enough to know who is running for the board. Elect the best people for the job and then support them by abiding by the documents and obeying the rules. If you can’t abide by the rules, then you shouldn’t be living in a community association.

Treat your neighbor as you would like to be treated. Some disputes can be resolved neighbor-to-neighbor rather than expecting the board to get involved. When you do have a complaint, be reasonable and speak with someone on the board before it escalates to a confrontation at a board meeting.

The community association is here to stay. The responsibility of operating them rests on the shoulders of a few willing volunteers. My hat is off to all those who continue to serve their associations through turmoil and crisis, with very little appreciation from their neighbors.

Hickenbottom is past president of the Greater Los Angeles chapter of the Community Associations Institute (CAI), a national nonprofit research and educational organization. She welcomes readers’ questions, but cannot answer them individually. Readers with questions or comments can write to her in care of “Condo Q&A;,” Box 5068, Thousand Oaks, Calif. 91360.