Starting January 1, 2010, many notices, disclosures and documents may be delivered electronically to any member who has agreed to that method of delivery.
Written Consent Required. Before an association can electronically distribute documents, notices and disclosures described above, 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 nonelectronic 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.
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).)
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.