Real Estate & Property Law

HOA Election - Do We Have To Have One If The Board Members Agree To Serve Another Term?

Here is the question I received:

"Have tried to find the answer to this .... our HOA nominated the entire Board for next year .... do we still need to have Ballots sent out/ 50 +$ return for the elections to be valid? It seems a costly project, but we want to do what is correct."

What is "correct" under the elections law is to have the election, unless your bylaws or election rules provide for "acclamation" and it is done per Robert's Rules.

But what about the waste in expense. Does it make sense to send out ballots and go to that expense if the number of candidates is not more than the number of vacancies?

Not really. So the question really becomes - do we take the legally required approach or the sensible approach?

You be the judge. If your board gave all qualified members a fair opportunity to run for board and followed whatever nomination procedures are required by the HOA or condo docs, and there are not enough candidates to make it a contest, and the records document this, then the risk of being challenged for not spending the money for ballots and an election is probably very small. And if the challenger had a fair opportunity to be a nominee and didn't, I would say there is probably a small risk that the challenger would be successful in challenging the act of "acclamation" to seat the board members.

It is important to note that the record should reflect whether board positions are filled by appointment or acclamation because the terms could be different. Appointees serve out the term of the director whose position they are appointed to and directors receiving their positions by acclamation - unless its an election to fill a position that was vacated pre-term-end - serve a full term.

Full post as published by California Condo & HOA Law on December 12, 2009 (boomark / email).