By: Rosalia Burgueño Tapia
Occasionally, a homeowner association (HOA) is faced with the situation of having an uncontested election. In such a case, must the HOA still go through the formalities of an election? Some say yes, and some say no. Current law seems to require a vote, even if uncontested. SB 1128 would have given HOAs the express authority to declare an election by acclamation, but it was vetoed on 9/30/18.
Current law: California Civil Code §5100 of the Davis-Stirling Act
- Regardless of any other law or provision of the governing documents, elections regarding the election and removal of directors shall be held by secret ballot.
- Directors shall not be required to be elected if the governing documents provide that one member from each separate interest is a director.
- If there is a conflict between California Civil Code §§5100-5145 and the California Corporations Code relating to elections, Davis-Stirling prevails.
SB 1128: Election by Acclamation
SB 1128 would have exempted HOAs in a common-interest development from current election procedure requirements in uncontested elections, if certain requirements met:
- At the close of the nomination period, the number of director nominees is not more than the number of vacancies on the board, as determined by the inspector of elections.
- Election rules, required by Section 5105, have been adopted and complied with.
- HOA provides individual notice of the election and procedure for nominating candidates at least 30 days prior to the close of the nomination period. The notice shall state certain statutory language (procedures regarding two meetings to be held by the board).
- After the close of the nomination period, a resolution is introduced at a Board meeting to fill the vacancies to be elected with names of the persons who have been nominated as of the close of the nomination period. At this same meeting, the Board provides general notice of an additional nomination period of 21 days in which any additional candidate may submit his/her name to the inspector to fill the vacancies to be elected.
- The Board adopts the resolution not less than 28 days after it is introduced.
- If, after the additional nomination period, the total number of candidates exceed the number of vacancies, an election shall be held. If not, then the Board shall amend the resolution to include the additional candidates.
- Once the resolution is adopted, the new Board shall be deemed elected immediately following the adoption of the resolution.
Potential Problems with Declaring Election by Acclamation Absent Statutory Authority
- Governing documents either do not expressly allow it, or contain provisions that do not make it possible, i.e., elections are to occur at annual meeting, nominations from the floor allowed, etc.
- What can happen if an HOA declares an election by acclamation?
- Pros? Cons?
- Is it worth the risk?
- Are you for or against elections by acclamation?
Other Interesting Parts of SB 1128:
- Contained provision mandating disqualifying nominees who, within the past 20 years, had been convicted of a felony involving accepting, giving, or offering to give, a bribe, embezzlement, extortion or theft of money, perjury or conspiracy to commit any of these crimes.
- Allowed for the HOA to disqualify nominees (through its bylaws), including incumbents, who are not current in payment of regular assessments; and prohibit more than 1 person with joint ownership interest in the same lot from serving on the board, and disqualify a nominee who has been a member less than one year.
About the Author:
Rosalia Burgueño Tapia is an attorney with Pratt & Associates in Los Gatos, California. She is a specialist in common interest development law and litigation and has been practicing in Santa Clara County for 24 years. She can be reached at 408-369-0800.