Many times elections are decided by a single vote. Although the Inspector of Elections determines the outcome of the election (Civil Code §1363.03(c)(3(G))
a losing party may be unhappy with the results and demand a recount.
The Davis-Stirling Act does not address this situation.
Although not binding on homeowner association elections, California's
Elections Code provides useful guidelines on how recounts may be
handled. The following has been adapted from Elections Code
Written Demand. Any member of the association may
demand a recount of the ballots provided (i) demand is made in writing
to the Inspector of Elections within five days after the election
results have been announced, and (ii) the member pays in advance for the
cost of the recount. Monies advanced by the member shall be refunded if
the outcome of the election is changed by the recount.
Recount Procedure. The recount shall be commenced not less than
seven days following the request for the recount and shall be done under
the supervision of the Inspector of Elections. The recount may be
observed by members of the association. No election materials may be
touched or handled by any person without the express consent of the
Inspector of Elections and under the supervision of the Inspector.
Results Published. The results of the recount shall be reported
to the board of directors and the membership and shall be recorded in the minutes of the
next board meeting.
So as to minimize the potential for litigation, boards should adopt
reasonable procedures for recounts similar to the above. Because
Election Rules are operating rules, boards must send the proposed changes to the membership for review and comment.
OF BOARD MEETINGS
Civil Code 1363.05(f) states that notice of meeting shall be given by
mail to any owner who wants notice at an address requested by the owner.
I wonder, can the meeting notice be emailed or only mailed?
ANSWER: Most boards give notice of
meetings by posting the notice/agenda in a prominent place or
places in the common areas. As you pointed out, members individually
have the right to receive notice by mail at an address of their choosing. Civil Code 1363.05(f). Does "address" include an email address?
Until recently, everyone would have said that a person's address was
the place where letters are delivered by an employee of the post office.
In light of last year's decision in Worldmark v. Wyndham Resort,
that is no longer the case. The court expanded the definition of
"address" to include a member's email address. This was a decision
involving the Corporations Code but if the court's definition is carried
over to the Davis-Stirling Act, members would have the right to demand
that meeting notice/agendas be emailed to them at least four days in
advance of the meetings. Associations could not refuse by arguing that
they satisfied notice requirements by posting in the common areas.
Boards should assume the
court's definition of address applies to HOAs and give email meeting
notice/agendas to those members who request it. It wouldn't hurt to
routinely give email notice to all members (in addition to posting in
the common areas).
FINING THE BOARD
QUESTION: There has been a dilapidated BBQ grill
sitting in the common area. The owner of the grill was told to remove it
but it is still there. It seems to me as members we have the right to
send a violation notice to the board and management company and fine
them for non-enforcement. Is this something members can do?
Regarding rule changes and all generally oppressive actions by any
board of directors anywhere . . . They can change rules, or do whatever
they damn well please. The only way to stop them is to sue them.
Davis-Stirling Schhhmirling . . . applicable law only becomes applicable
when you purchase it. Even then it's likely to be worthless as you'll
be fighting a battle of billable hours. Neither attorney will be
concerned with winning.So
you lose, and those elected to your board get away with whatever they
want. Including your money, if they're creative. -K.L.
There is a solution to the problem you describe--sell your condo and
move to a remote cabin in N. Dakota. Avoid all contact with people and
you will find happiness.
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