E-MAIL BALLOTS

QUESTION: We have authorization from all homeowners to send all correspondence, billing, etc. by email. Can we also send election ballots by email? It is expected to be an uncontested meeting.

ANSWER: Email ballots would be convenient and a less expensive than paper ballots. Unfortunately, they would not be “secret” as required by the Davis-Stirling Act if they are returned by email. The statute requires ballots be returned in a double envelope system. Depending on your governing documents you may be able to dispense with balloting altogether in uncontested elections.

INELIGIBLE DIRECTOR

QUESTION: While updating a list of owner addresses I discovered that a board member was not an owner, which is required by our bylaws. When challenged, the director was added to his wife's deed as an owner. Does after-the-fact ownership qualify an individual to remain on the board?

ANSWER: The ineligible director's seat should have been vacated at the point the board discovered he was not qualified to be on the board. However, once he subsequently became qualified to be a director, the board could appoint him to the seat he vacated.

ARE RECALLED BOARD
CONTRACTS BINDING?

QUESTION: Our HOA is in the process of a board recall. Once a new board is seated, are they bound by contracts previously signed by the recalled board?

ANSWER: If the contracts were valid when signed by the prior board, they are binding. New boards should be cautious about voiding contracts for emotional reasons, i.e., because they do not like or trust the prior board. New boards need sound legal reasons for voiding contracts and should seek legal counsel before doing so.

CONDEMNED PROPERTIES

QUESTION: I'm a board member in a PUD of single-family homes with a high number of condemned, foreclosed and otherwise empty homes. Does the association have any recourse to encourage owners of condemned properties to return the property to a non-condemned condition?

ANSWER: Owners in foreclosure usually have no money, which means they will not keep up the property and will not respond to fines or threats of legal action. Once the lender forecloses, you can go after the new owner, i.e., the lender.

GARDENING NEWSLETTER

QUESTION: Can an association publish a newsletter strictly as a tool for information, reminders, and gardening hints?

ANSWER: If the board believes a gardening newsletter would be beneficial to the community, and has money to pay for printing and mailing it, yes.

CC&R ASSESSMENT LIMITATIONS

QUESTION: Our 1969 vintage CC&Rs have never been updated. They state that annual assessment increases shall not be less than $5 nor more than $50 per lot. Is the board bound by this restriction? If so,  should the board levy special assessments as needed?

ANSWER: The assessment restriction in your CC&Rs is no longer valid. By statute, the board has the power to raise regular assessments by up to 20% of the association's preceding fiscal year without membership approval. Civil Code §1366(b).

DAVIS-STIRLING ACT
ONLY A GUIDELINE?

QUESTION: We’ve functioned as a HOA for years without knowing about the Davis-Stirling Act and got along just fine. We understand the Act to be guidelines than enforceable law. What is the risk of ignoring the Act? Some of the provisions seem onerous and unnecessary for a small HOA.

ANSWER: The law is only a guideline? Who in the world told you that? Associations can incur penalties, legal fees and court costs if they fail to follow the Davis-Stirling Act. I agree it can be onerous on small associations. Unfortunately, the legislature did not take that into consideration.

RECALL QUORUM

QUESTION: Many of our lots are undeveloped or, if developed, used as vacation or week-end homes. Because of the large number of absentee owners, we have not been able to establish a quorum at a membership meeting. Owners who are recalling the board are concerned about establishing quorum at the special membership meeting in order to recall the board. I am under the impression that it makes no difference whether there is a quorum or not because the recall will be accomplished by the secret ballot process.

ANSWER: You need a quorum to recall the board. However, you don't need people to physically show up at the meeting since ballots count toward quorum. Civil Code §1363.03(b). As long as enough ballots are mailed in, the recall may proceed.