Real Estate & Property Law

ELECTIONS IN HOAS AND CONDOS - Can the Board Endorse Candidates?

Here are some blog questions I received from a reader about board endorsements in candidates for election. And I added one question that came from a client. For each, the question is in quotes and bold and my answer follows:

"Is it ethical for current board members to endorse an incumbent going door to door and posting flyers on behalf of the incumbent? There are several candidates running for two positions."

In California, I believe that if board members go door to door to endorse an incumbent, it could present a legal issue IF THE BOARD MEMBERS are representing that the incumbent is supported by the association or the "board". If the board members are telling members that they as fellow homeowners support the candidate, I do not belive that is a problem. This premise could be argued pro and con. California law prohibits boards from expending association resources to promote candidates and requires that boards give all candidates equal access to resources if any are offered to any candidate. So it is best to live within these parameters to avoid issues with HOA and CONDO Association elections in California.

However, I will point out that this question about going door to door is really not using association resources because no cost is involved (I am assuming). Board members are normally unpaid volunteers - so their time is their own. However, if they are passing out flyers paid for by the association supporting only certain candidates, that would be crossing the line, for sure.

"Is it proper for a board president to send out a letter to all the homeowners discrediting a candidate? The association paid for the mailing."

This could very well be a violation of California law since the law requires "equal access" and equal treatment by the association of all candidates. Naturally, one would have to see the publication and know the facts before passing judgment. Why? For example: notifying owners that a candidate is not qualified to run under the qualifications in the bylaws could be construed as discrediting a candidate (and in my view would probably not be necessary if the election processes are handled correctly), but might be legitimate under certain circumstances. Outright "dissing" of candidates by the Board President using Association resources would be a problem.

"Is it proper for the board to endorse a slate of candidates presented by the HOA or Condo Association's nominating committee?"

This is a difficult question and I believe great minds might disagree on this. My take is that the Board could announce a slate put together by the nominations committee after its review of candidates while announcing all candidates, but if the Board crosses a line and endorses these candidates over others that are qualified to run, it might taint the election and leave it open to challenge.

Thus, I would not advise making any "board endorsements" unless it is done individually by board members representing their views as an owner, and not using association resources.

Full post as published by California Condo & HOA Law on March 02, 2010 (boomark / email).