Real Estate & Property Law

Elections Rules Questions - The Continuing Saga

Here are some recent questions on elections:

"Our HOA has an election coming up and still has not adopted election rules. Does this mean we do it the 'old way'?"

Answer: The "old way" still works for some elections, but most are governed now by Civil Code Section 1363.03 that requires a double envelope ballot system, an inspector of elections, and preservation of secrecy of the ballot. So I would say generally no, don't do it the "old way". HOAs should be conducting elections the "new way", whether the election rules are in place or not. The "new way" is outlined in Civil Code Section 1363.03 - which can be accessed through my website at http://www.californiacondoguru.com or through the California government website at http://www.ca.gov (navigate to California Codes and check "Civil Code" and put in the number 1363.03 and you should get all pertinent sections).

And another question:

"We have draft election rules and have told the members about them but have not formally adopted them yet. We just conducted an election. Does that make the election void?"

Answer: Failure to formally adopt election rules should not make an election void (however, I would suggest doing it as soon as is feasible after you have completed the steps of circulating them to the members for comment found in Civil Code Section 1357.100).

So long as the election was conducted using the processes in Civil Code Section 1363.03, it should be upheld, the point being, not to unduly punish the HOAs that try to do things right under the laws - by unravelling perfectly good and fair election processes.

Boards do sometimes make mistakes and might miss a step in the many, many technical formalities (which are unbelievably complicating in California to the job of a California HOA Board and those who try to manage the HOA properly).

I have continually written that good faith is an important factor in trying to follow the law. I do not have case citations to offer on elections, as yet, because I do not know of any binding appellate cases on the subject yet, but do find in the published cases that challenge Board actions in other areas that Boards tend to prevail when their actions were rendered "in good faith", and so I believe that "good faith" is a key factor to reviewing the actions of an HOA board or manager.

So go forth, in "good faith", do your best, and get ye the help you need to succeed in 2009! But don't sweat the small stuff.

Full post as published by California Condo & HOA Law on January 07, 2009 (boomark / email).