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Articles Posted in Voting & Elections

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imgAmending a HOA’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”) can be a challenging endeavor. This is true, in large part, to the onerous approval requirements imposed by the CC&Rs themselves. Indeed, many CC&Rs require a super-majority (i.e., 67% or more) of the HOA’s members to approve an amendment. Such requirements make it difficult for an association to pass a proposed amendment, often as a result of member apathy or lack of participation in the voting process.

When this occurs, California Civil Code Section 4275 provides a mechanism for a HOA to “petition the superior court of the county in which the common interest development is located for an order reducing the percentage of affirmative votes necessary for such an amendment.” Section 4275 thus serves to provide a HOA “with a safety valve for those situations where the need for a supermajority vote would hamstring the association.” (Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472).

Accordingly, in order to successfully bring a petition to reduce the percentage of affirmative votes necessary to approve an amendment to the CC&Rs, a HOA must demonstrate the following:

  1. Adequate notice of the proposed CC&R amendment was given;
  2. Balloting was conducted properly pursuant to the CC&Rs and the Act;
  3. Reasonable efforts were made to solicit approval from the members;
  4. More than fifty percent (50%) of the eligible members voted in favor of the amendment;
  5. “The amendment is reasonable[;]” and
  6. “Granting the petition is not improper….”

(Cal. Civ. Code § 4275(c).)

In the recent case of Orchard Estate Homes, Inc. v. The Orchard Homeowner Alliance, the California Court of Appeal rejected an argument brought by a group of homeowners (The Orchard Homeowner Alliance) objecting to the HOA’s petition to reduce the percentage of affirmative votes necessary to amend their CC&Rs. ((2019) ___ Cal.App.4th ___, 2019 Cal.App.Lexis 144.) (“Orchard Estate”) In particular, and relying on the Mission Shores Assn v. Pheil case, the homeowners argued that, in order to prevail on their petition, the HOA must demonstrate that the CC&R amendment failed due to “voter apathy.” ((2008) 166 Cal.App.4th 789, 794-95 (stating that section 4275 of the California Civil Code was to “provide homeowners associations with the ‘ability to amend [their] governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures”).)

The Court in Orchard Estate rejected this argument, noting that the statutory language contained in California Civil Code section 4275(c) clearly and unambiguously identified the “elements required to be established to authorize a reduction in the required voting percentage to amend a provision of the governing CC&Rs.” (Id. at p. **6-7.) As such, the Court was unwilling “to imply an element that was not expressed by the Legislature” based on off-hand statements made in appellate decisions. (Id. at p. *7.)

California HOA lawyers Although the Orchard Estate case appears to make CC&R amendments easier to accomplish, Board members should nevertheless be aware that amending CC&Rs can be an expensive endeavor. Therefore, it is important for Board members to discuss potential CC&R amendments with the HOA’s legal counsel to determine if they are necessary and/or advisable, or if other avenues are available to achieve the Board’s desired result.

-Blog post authored by TLG Attorney, Matthew T. Plaxton, Esq.

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Court-TrialPreliminary injunctions are temporary court orders requested by one party that prevents another party from pursuing a particular course of conduct until the conclusion of a trial on the merits.  A preliminary injunction is proper where the moving party proves the following two factors: (1) the likelihood that the moving party will ultimately prevail on the merits at the time of trial; and (2) that relative interim harm to the parties from issuance of the injunction weighs in that party’s favor.

Occasionally, HOAs seek preliminary injunctions as a means to enforce the HOA’s governing documents.  Among other reasons, the purpose behind that request for judicial relief is to restrain homeowner actions or omissions when such conduct potentially poses a threat of harm or risk to Association Property or the Association’s Members.  Examples include a homeowner’s unauthorized alteration of structural common area components (e.g. removal of a bearing wall within a condominium unit; unapproved building activities on common area property).

Under the Davis-Stirling Common Interest Development Act (“Act”), at the conclusion of a trial on the merits, the prevailing party shall be awarded reasonable attorney’s fees and costs in an action to enforce the HOA’s governing documents (Civil Code Section 5975).  Historically, there has been some question as to whether a moving party may recover statutory attorney’s fees and costs if the court grants a preliminary injunction in a HOA enforcement action.  In January 2018, the California Court of Appeal addressed that issue in the case of Artus v. Gramercy Towers Condominium Association (19 Cal.App.5th 923).

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New Civil Code 4515 will be added to the Davis-Stirling Act to ensure that homeowners association residents may exercise their rights of peaceful assembly and political speech.

HOAs are playing an increasing role in the lives of California’s residents as compared to the roles traditionally played by cities and counties. HOAs are growing in number, size and sophistication. As a result, a HOA’s actions and governance structure often have more immediate effects on the issues homeowners feel “closest to home,” such as property values and community services. This is why California law will at times hold HOAs—which are private corporations—to the standards of “quasi-governmental entities.”

An example of this was seen several years ago when legislation was enacted to grant every HOA member the right to use common area meeting spaces for purposes related to a HOA’s election. The intent was to promote constitutional principles of freedom of speech and assembly; to allow HOA members to meet for purposes related to an ongoing HOA campaign (i.e., a HOA board election), and to do so without any unreasonable impediment imposed on them by their HOA.

SB 407 (Wieckowski) is a newly signed bill that takes this idea much further. It was introduced in response to what California’s legislators felt to be a continuing abuse of power by HOAs in using non-solicitation rules to prohibit non-commercial free and political speech:

“Blanket prohibitions on commercial solicitation are often so broadly written that they could be interpreted to prohibit non-commercial free and political speech.”

“Significant anecdotal evidence demonstrates that HOAs have extended the restrictions of door-to-door solicitation to political speech.”

“Overly broad rules and policies discourage the civic participation of HOA members and criminalize free political expression.”

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hoa update 2014Our “Annual Legislative & Case Law Update” newsletter for the year 2014 is now available in our library!

The Legislative & Case Law Update provides an overview of the new legislation and case law impacting California Homeowners Associations (“HOAs”) as we head into 2014. The new legislation includes, among other items, the re-organization of the Davis-Stirling Act (now in effect), and a bill that clarifies contractor licensing requirements for HOA managers. The new case law includes rulings that may impact HOA election rules, membership rights to attend Board meetings, use of HOA media outlets during election campaigns, insurance defense coverage, attorney’s fees recovery in HOA disputes, and assessment collection procedures.

Click here to read our Annual Legislative & Case Law Update (2014)

Have questions on any of the new legislation or case law? Click here to send us a question online.

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*New Case Lawhoa-ballots.jpg

Provisions setting forth the qualifications for serving on a homeowners association (“HOA”) Board of Directors are typically found in the HOA’s Bylaws. At the time when these provisions were originally drafted, they may have been insufficient to establish a set of specific qualifications designed to avoid operational issues and potential conflicts of interest. Therefore, HOAs have been traditionally required to formally amend their Bylaws in order to establish, clarify or expand director qualifications. This generally requires the approval of the membership and a formal vote which, as many Boards and industry professionals understand, often acts as a significant hurdle to achieving the HOA’s goals.

However, in light of recent case law, it appears that a less onerous mechanism for enacting new director qualifications may now be available. In Friars Village Homeowners Association v. Hansing (10/9/2013) the HOA adopted an election rule which prevented any member from seeking a position on the Board if that member was related by blood or marriage to any current Board member or other candidate for the Board. Subsequent to the adoption of the rule, a husband whose wife was already serving on the Board sought to nominate himself as a candidate in an upcoming election. There was a provision in the HOA’s governing documents that permitted members to “self-nominate.” However, the Association denied his request to submit his candidacy on the basis of the newly enacted “relationship” rule. The husband then brought suit against the HOA to challenge the validity of the rule on the theory that it exceeded the HOA’s authority and violated his self-nomination rights under the HOA’s governing documents.

The Court ruled for the HOA, noting that the new election rule acted as a qualification which preceded the right to self-nominate, and was therefore not inconsistent with the HOA’s governing documents or governing law. Furthermore, as the rule was based upon the legitimate concern that spouses or relatives might form unfair alliances on the Board, the Court found that the rule was both reasonable and rationally related to the proper conduct of the business affairs of the HOA.

hoa attorney

It is important to note that the Court’s decision was made in relation to the individual facts of the Friars Village case and the specific language found in the HOA’s governing documents. However, the Court’s decision may indeed establish a basis for adopting director qualifications through the implementation of reasonable election rules rather than through formal amendments to the Bylaws. HOA Boards of Directors should therefore consult with their HOA’s legal counsel prior to adopting new election rules to which HOA members may be opposed.

Blog content provided by Tinnelly Law Group attorneys Bruce Kermott and Kai Macdonald.

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*New Case Lawhoa_election_vote.jpg

As is a common occurrence for HOA Boards, there is often difficulty in obtaining the HOA members’ consent that is required for taking such actions as amending the HOA’s governing documents or undertaking capital improvements. Failure to obtain the members’ consent–whether it is a result of member apathy or disagreement with the Board’s position–often results in wasted resources that were expended in conducting the election procedures required under California law. HOA Boards are therefore always looking for ways in which they can educate the members on the Board’s position and the reasons why the Board believes that the membership should vote a particular way in the upcoming election.

HOA Boards may therefore seek to utilize media outlets such as the HOA’s website and newsletters, as well as posting notices in HOA common areas, in an effort to garnish member support for the Board’s position. However, when such “advocacy” efforts are made as part of an election campaign, California Civil Code Sections 1363.03(a)(1) and (a)(2) require the HOA to provide equal access to its media outlets and common areas to all members who may be advocating opposing points of view. Where the HOA fails to provide such equal access, Civil Code Section 1363.09(a) allows a court to void the election results and even impose civil penalties.

This was the issue in the recent case of Wittenberg v. Beachwalk Homeowners Association, where the court held that a HOA’s election results could be invalidated based upon the fact that the HOA Board had failed its duty to provide homeowners with the type of equal access contemplated by the Civil Code…

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electronic-ballot.jpgUnder the Davis Stirling Act as currently written, common interest developments (“CIDs”) are required to comply with certain procedures for conducting elections. Among other requirements, the Act requires CIDs run by homeowners associations (“HOAs”) to adopt rules and appoint inspectors for the purpose of verifying signatures, counting and tabulating votes. Additionally, the votes themselves must be placed on secret paper ballots, using a specific procedure requiring the use of double envelopes.

Although the rules were intended to improve and standardize the manner in which HOA elections are conducted, they have also had the unfortunate consequence of making it more difficult to achieve quorum. As a result, HOAs are expending more resources, time and money in their attempts to hold an effective election.

In response to these difficulties, the California Legislature has introduced Assembly Bill 1360 (“AB 1360”) sponsored by the CAI California Legislative Action Committee (“CLAC”). In short, AB 1360 proposes to modify the rules to authorize HOAs to conduct elections and other votes of the membership by electronic means. Although paper ballots would still be utilized, the Bill would require Associations to provide their members with the option of voting electronically.

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To be kept up to date on the progress of AB 1360, visit CLAC’s blog. If you have questions or concerns regarding your HOA’s voting procedures, or would like to know more about the potential impact of AB 1360, contact your HOA’s legal counsel.

Content by TLG attorney Kai MacDonald

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hoa lawsOur annual “Legislative & Case Law Update” newsletter for the year 2013 is now available in our library!

The Legislative & Case Law Update provides an overview of the new legislation and case law impacting California Homeowners Associations (“HOAs”) as we head into 2013. The new legislation includes, among other items, bills that impact Bank foreclosures, the re-organization of the Davis-Stirling Act, EV Charging Stations and fees charged by HOAs in producing certain records. The new case law includes rulings that may impact the architectural restrictions placed on the installation of solar panels, arbitration provisions for construction defect disputes, “no-cost” HOA collections contracts, election disputes and defamation claims. The Legislative & Case Law Update also addresses some new Fannie Mae and FHA regulations impacting condominium insurance and certification requirements.

Click here to read our Legislative & Case Law Update (2013)

Have questions on any of the new legislation or case law? Click here to send us a question online.

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hoa law firm*New Library Article

AB 805, effective January 1, 2014, will make existing California law pertaining to Homeowners Associations (“HOAs”) more logical and user-friendly. The bill’s primary effect is (1) to renumber and reorganize the Davis-Stirling Common Interest Development Act (“the Act”), and (2) to make various minor changes to the substantive content the Act. Other than renumbering of the Act from Sections 1350-1378 of the Civil Code to Sections 4000-6150, the bill reorganizes the Act in a more logical manner. It also standardizes terminology, eliminates outdated references to other authorities, groups provisions pertaining to the same subject matter, and reorganizes longer sections into more convenient subparts. While most of the Act’s content will remain the same, this blog post provides an overview of what substantive changes will go into effect as of January 1, 2014.

Our HOA lawyers have also published this information in our new library article entitled “The Basics of AB 805,” available for download from our library.

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*New Case LawElection-Disputes-Gavel.png

The California Court of Appeal’s recent ruling in a case underscores how crucial it is for HOAs to strictly comply with the Civil Code’s election procedures and requirements.

The court in That v. Alders Maintenance Association (2012) applied Civil Code § 1363.09 to hold that a HOA’s attorneys’ fees and costs are generally not recoverable by a HOA should it prevail against a member in an election dispute. However, the same is not true for a member should she instead prevail against her HOA.

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