Starting January 1, 2010, many notices, disclosures and documents may be delivered electronically to any member who has agreed to that method of delivery.
Electronic Delivery Defined. The Davis-Stirling Act defines electronic delivery to mean "email, facsimile, or other electronic means." (Civ. Code § 4040(a)(2).) Other electronic means include posting on an electronic message board or network which the association has designated for those communications, together with a separate notice to the recipient of the posting. (Corp. Code § 20.) If a document is delivered by electronic means, delivery is complete at the time of transmission. (Civ. Code § 4050(c).)
Written Consent Required. Before an association can electronically distribute documents, notices and disclosures to its members, it must receive the recipient's written consent. (Civ. Code § 4040(a)(2).) The consent must comply with all the requirements of Corporations Code § 20, which includes a clear written statement to the recipient as to:
- any right of the recipient to have the record provided or made available on paper or in non-electronic form,
- whether the consent applies only to that transmission, to specified categories of communications, or to all communications from the corporation, and
- the procedures the recipient must use to withdraw consent.
Form of Consent. The Act does not mandate a particular form for the consent except that it be written. An email qualifies as written consent. (Civ. Code § 1633.7.) The email can be printed by the association and stored in a file or it can be stored electronically. Even so, associations are allowed to create their own consent forms. Lawyers like to include disclosure language about how the consent remains effective until such time as it is revoked in writing.
Preferred Method. Beginning January 1, 2022, associations must request members' preferred delivery method (email, mail, or both) for notices and disclosures. In addition, associations must annually give notice that members are not required to provide their email address to the association (Civil Code § 4041). This notice must be given no later than 30 days prior to mailing the annual budget report. If a preferred method is not selected by a member, notices and documents must be sent by First-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service carrier. (Civ. Code § 4040.) For documents requiring general delivery, associations can post the documents on their website provided this is disclosed to the members in the association's annual policy statement. (Civ. Code § 4045.)
Sale of Emails. Associations and their managing agents cannot sell or transmit a member's personal information for any purpose without the consent of the member. (Civ. Code § 5230(c).)
Incentives. Associations can offer incentives to their members to switch from paper to electronic delivery of disclosures, notices, and documents.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.