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APPROVAL OF SPECIAL ASSESSMENTS

For special assessments over 5% (other than emergency special assessments), boards must seek membership approval. (Civ. Code §5605(b).)

Super-Majority Requirements Invalid. Governing documents that require a super-majority for assessment approval are invalid, such as: approval by a majority of the membership or approval by a majority of a quorum where the quorum is 2/3 of the membership. Such provisions are superseded by the Davis-Stirling Act.

Approval Defined. For purposes of a special assessment, the approval requirement is set by statute rather than the governing documents. Regardless of anything to the contrary in an association's governing documents, special assessments are approved by a majority of a quorum of the membership. The Davis-Stirling Act defines a quorum to mean more than 50% of the owners of an association. (Civ. Code §5605(c).) It then defines a majority of a quorum to mean the affirmative vote of a majority of the votes cast, which votes also constitute a majority of the required quorum. (Civ. Code §4070.)

For Example: In an association of 100 members, 51 ballots must be returned to constitute a quorum. Of those, at least 26 must vote for the special assessment. If 60 ballots are cast, at least 31 must vote in the affirmative. And so on.

Secret Ballot. A membership voting on a special assessment must be done by secret ballot using election rules duly adopted by the association. Membership approval is at a special meeting called for that purpose or entirely through a mail-in ballot.

Notice Requirement. If the assessment is approved, proper notice must be given before the assessment can be levied.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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