Member Motion
Adams Stirling PLC


QUESTION: I am under the impression that homeowners can make motions at their annual meeting; am I correct?

ANSWER: Pre-2006, you could make motions but that effectively ended with changes to the Davis-Stirling Act mandating secret ballot elections.

Robert's Rules. Under Civil Code §5000(a) membership meetings must be conducted using parliamentary procedures. The most common procedure is Robert's Rules of Order, which allows members to make motions from the floor. In the "old days" a member could make a motion at the annual meeting. Once it was seconded and debated, it could be put to a voice vote or show of hands.

Davis-Stirling Act. Everything changed in 2006 with Civil Code §1363.03 (now §§5000-5145) which established procedures for elections and established restrictions on business that can be conducted at meetings. Most issues now require an Inspector of Elections (Civ. Code §5110) and secret balloting for not less than 30 days (Civ. Code §5115). This procedure effectively precludes all but incidental matters from floor votes. Even incidental matters are problematic.

Approval Requirements. With the advent of mail-in ballots, few members attend meetings any more. In a 100-unit association, sixty members might send in ballots, thereby establishing quorum for the meeting, but only nine members might actually attend. If one person makes a motion to change the color of all buildings from earth tones to navy blue and five vote for the change and four against, does the motion pass? I don't believe it does.

No Prior Notice? How can the other sixty members whose ballots established quorum vote on the color change since they were not present to hear the motion? I don't believe the matter can be raised at the meeting without prior notice to the membership:
Whenever members are required or permitted to take any action at a meeting, a written notice of the meeting shall be each member... and (1) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted, or (2) in the case of the regular meeting, those matters which the board, at the time the notice is given, intends to present for action by the members, but, except as provided in subdivision (b) of Section 7512, any proper matter may be presented at the meeting for the action. (Corp. Code §7511(a).)
Moreover, I don't believe approval is a majority of nine (those physically present) but rather a majority of those present in person and by ballot, i.e., a majority of sixty-nine members (60 by ballot and 9 in person). Assuming that approval can be accomplished by those physically present at the meeting, allowing five members to change the color scheme of the entire development would create an uproar. Members would be properly outraged since there was no prior notice of the vote.

RECOMMENDATION: Any matters of significance should be put to a vote of the entire membership via written notice and ballot rather than from the floor of an annual meeting. Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC