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Articles Posted in Voting & Elections

homeowners association law.jpg*New Resource

Electing a Board of Directors to manage the Association is a complex and time consuming process. Despite the best of intentions, sometimes things slip through the cracks, whether it’s the qualifications of someone on the ballot or the manner in which votes are collected and tallied. When this occurs, the appointment of a specific director or the election as a whole can be challenged by a member. This blog post discusses the basics of such a challenge, including who has standing to bring a challenge, when a challenge can be brought, and how such a challenge can affect the Association.

Our HOA lawyers have also published this information in our new resource entitled “Challenges to Association Elections: Facts and Consequences”, available for download from our library.

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*Asked & Answeredhoa-election

AskedMay a homeowner challenge the qualifications of a member to serve on the HOA’s Board of Directors after they have been elected?

Answered – Maybe, depending on the date of the challenge. Corp. Code §7527 provides that “an action challenging the validity of any election, appointment or removal of a director or directors must be commenced within nine months after the election, appointment or removal. If no such action is commenced, in the absence of fraud, any election, appointment or removal of a director is conclusively presumed valid nine months thereafter.” The election will thus be deemed valid unless the challenge is brought within nine (9) months after the election.

However, there is a slight conflict in the law with respect to election challenges. Civil Code §1363.09(a) provides a one (1) year period to bring civil actions for declaratory or equitable relief relating to violations of the election and voting procedures set forth in that article. Accordingly, the law is slightly inconsistent with respect to the exact period in which such challenges may be brought.

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HOAs can be significantly impacted by actions taken under the direction of an unqualified Board Member. Surprisingly, most original governing documents do not contain any specific qualifications for a member to serve on their HOA’s Board. Many HOAs therefore opt to amend their Bylaws to establish reasonable qualifications for Board Members (e.g., membership in the association, good standing with regard to assessment payments, etc.). Adoption and enforcement of Board Member qualifications assist in ensuring that the best possible members are entrusted with managing the HOA’s affairs.

To submit HOA law questions to Tinnelly Law Group, click here.

Content provided by Kai MacDonald, Esq. – HOA attorney with Tinnelly Law Group.

vote2.jpgVoting to amend homeowner or condominium association (Association) governing documents can be a difficult process. Additionally, when an Association’s governing documents require a “supermajority” vote to enact the amendment, the process can go from difficult to nearly impossible. A “supermajority” refers to a vote requiring approval by more than a simple majority (any amount over 50%) of the membership. Voter apathy, busy schedules and other issues can make achieving a supermajority highly impractical, particularly for larger Associations.

Fortunately, Civil Code Section 1356 provides a form of relief for Associations being stifled by onerous supermajority requirements, allowing Associations to petition the court for a reduction in the percentage of affirmative votes necessary for an amendment. Such a petition was at the heart of the dispute in the recent unpublished case of Quail Lakes Owners Association v. Kozina (2012).

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