What does the law say?
By Suzanne Braun
The Serrano Park Community Association will be holding our annual Board of Directors elections on October 12, 2021. Since this year’s elections are going to be the biggest one I’ve seen in the past 10 years, I was curious about HOA election laws and how these have been misused by Homeowners in past years. Below are some interesting HOA election concepts that I uncovered.
Let’s start with the basics. The state of CA adopted new HOA elections laws in late 2019. The Serrano Park Community Association adopted new elections rules for the Community on April 21, 2020 to ensure compliance with the new laws.
The election process is straightforward: The HOA has a “call for candidates” in which interested Homeowners can submit an application to be placed on the ballot. A list of candidates is then added to a ballot, along with their application, and mailed to all residences within the Association. The homeowners are given 30 days to complete the ballot, which, in Serrano Park, coincides with the date of the Annual Meeting.
For this year, ballots will be mailed on September 6, 2021 and the Annual Meeting/Elections will be held on October 12, 2021.
There are 2 ways to submit your ballot – mail it back to the Management company (as outlined in the ballot mailing documents) or bring it with you to the Annual meeting and hand it to the Inspector of Elections.
Before I started researching HOA election regulations, I had no idea this was a word, let alone a very important piece of HOA elections law. As defined, Electioneering is “the activity of trying to persuade people to vote for a particular [political] party.” In the HOA world, this means persuading a person to vote for a certain candidate. Now, when I first read this, it makes it sound like campaigning, walking door to door to speak with neighbors, and flyers/posters is illegal. However, after some more research, this is what Elections Code §18371(a) states, “No candidate or representative of a candidate, and no proponent, opponent, or representative of a proponent or opponent, of an initiative, referendum, or recall measure, or of a charter amendment, shall solicit the vote of an absentee voter, or do any electioneering, while in the residence or in the immediate presence of the voter, and during the time he or she knows the absentee voter is voting.”
This means, in laymans terms, that if a candidate (or their representative) approaches you and has you fill out your ballot (or fills it out for you), this is illegal and a misdemeanor. They CAN speak to you about themselves, why they are running, why they want to be elected, but CANNOT physically watch you fill out your ballot, help you fill out your ballot, or take your ballot and fill it out for you. This misdemeanor carries a fine up to $1000 per incident. (§18000 et seq.)
This leads me to proxy voting. Again, lets start with the definition – “An election proxy is a specific power of attorney that allows one person to act on another person’s behalf at membership meetings, e.g., to vote. (Civ. Code §5130(a)” This is a legal contract between 2 people that one person holds voting power attorney for the other person. What is different here is that there needs to be legally binding documents stipulating this power of attorney. It cannot be verbal – so someone cannot take your ballot, fill it out for you, turn it in, and claim they are your proxy.
Lost Ballots – what do you do?
If you lose your ballot, you must contact the Management company for a new one. You can’t go next door and make a copy of your neighbor’s ballot. This allows for the Management company to note that you lost your ballot in case 2 ballots are cast for your address.
Why do elections keep getting postponed to the next month – Quorum
As a part of any HOA election, there is a predetermined amount of ballots that must be cast in order to deem the election valid, this is called a quorum. Based on the Serrano Park Community Association bylaws and CC&R, the first quorum percentage is 50%. This means 50% of the ballots must be turned in for counting – this equates to 297 homes/ballots. If this percentage is not achieved, then the quorum reduces to 25%, or 149 ballots.
In the past 10 years, elections in Serrano Park have netted less than the 50% quorum needed during the annual meeting/elections to allow for the opening and counting of ballots. So, the bylaws allow for a reduction in quorum to 25% and the election can be held at any time after the adjournment of the annual meeting/elections.
My research of HOA elections laws is not all encompassing. If you would like to learn more about it, or more about HOA laws in general, please go to www.davis-stirling.com.
NOTE: davis-stirling.com is run by Adams-Stirling Professional Law Corporation, the creators of the Davis-Stirling Act that was adopted by California and are considered the premier source for interpreting California HOA law. It is a lot easier to find the governing law here and get it explained than wading through the California statutes.