Adams Stirling PLC


Self Nominations. Candidates are allowed to nominate themselves for election to the board of directors. (Civ. Code § 5105(a)(3).) The Davis-Stirling Act does not require that nominations be written. However, an association's governing documents or election rules may require it. If a name is placed into nomination by someone other than the candidate, the candidate should be contacted to verify their willingness to be on the ballot.

Nominating Committees. Although most association bylaws provide for nominating committees to screen people to serve on boards, such committees were made moot by Civil Code § 5105(a)(3). Nominating committees can still be appointed by boards and can still solicit candidates but they can no longer reject qualified candidates. Nominating committees and boards can promote the candidates they select. However, they must do so at their own expense. They cannot advocate for or against candidates in the ballot materials. (Civ. Code § 5135.) Ballots can designate which candidates are incumbents and they can probably designate which candidates were selected by the nominating committee, provided the designations are completely neutral.

Placing Names on the Ballot. All nominees, provided they meet the qualifications to serve on the board and submitted their names prior to the close of nominations, must be placed on the ballot mailed to the membership, i.e., written ballots must specify a choice between approval and disapproval of each matter (or candidate) known at the time the ballot is distributed. (Corp. Code § 7514(a).)

Excluding Candidates. Boards should not use small technical violations in the nomination process to exclude qualified candidates from running for the board. For example, associations should not exclude a qualified candidate for submitting a photocopy of a candidate's application rather than an original. Examples of substantive violations are:

Close of Nominations. If the governing documents do not establish a cutoff for nominations, the board may establish a reasonable date prior to the mailing of ballots for closing nominations. If the association's governing documents require nominations from the floor, nominations may be closed by the board for the purpose of preparing and mailing ballots and then reopened at the annual meeting.

Floor Nominations. Nominations from the floor are not required by the Davis-Stirling Act but may be used if provided for in the election rules. (Civ. Code § 5105(f).) They can also be dispensed with in elections by acclamation.

Procedure for Nominations. Once a quorum has been established, the chair of the meeting will, at the appropriate point on the agenda, open the floor for nominations. Members in good standing may nominate any qualified individual as a candidate for election to the board. A member need not be recognized by the chair to make a nomination and no second is required. (Robert's Rules, 11th ed., pp. 431-432.) Members may nominate themselves or nominate others, even if those persons are not present at the meeting. There is a limit on the number of nominations any one individual can make.

Ballots Already Cast. If owners have already mailed in their ballots, they are precluded from voting for floor nominees since their ballots are irrevocable once they are cast. (Civ. Code § 5120(a).)

Eliminate Floor Nominations. If an association's bylaws or election rules allow for floor nominations, it forces a full election, even if the election is uncontested. To avoid unnecessary election expenses, documents should be amended to drop any requirement for floor nominations.

Write-In Candidates. The Davis-Stirling Act states that associations can adopt election rules that permit nominations from the floor and write-in candidates. (Civ. Code § 5105(f).) By implication, unless an association's bylaws or election rules provide for write-in candidates, they are not allowed. If that is the case, members cannot write in candidates on their ballots. If they do, the inspector of elections can deem votes for write-in candidates invalid. Any votes on the ballot for announced candidates would still be valid.

Verification. If write-ins are allowed, the nomination need not take place in advance to be valid. Even so, the write-in candidate will need to be contacted to verify he/she is willing to accept the nomination (in the event a sufficient number of votes are cast to elect the write-in candidate).

Eliminate Write-Ins: Associations should amend their election rules to make clear whether write-in candidates are allowed during elections. If they are allowed, blank lines should be added to the ballot. If they are not allowed, the restriction should be stated on the ballot as well as in the election rules. If there is any uncertainty about whether write-in candidates are allowed, the board should seek a legal opinion on how best to proceed.

Notice of Candidates. Civil Code § 5115(b)(3) requires 30 days' notice to the membership of all candidates that will appear on the ballot. Obviously, this requirement does not apply to write-in candidates since they will not be added to the ballot by individual owners during the balloting process. 

Review for Accuracy. At least 30 days before the ballots are distributed, the association must prepare a list of the candidates and make it available to the candidates so they can verify the accuracy of their information on the list. The inspector of elections must then change and correct lists within two (2) business days of any error or omission being reported. (Civ. Code § 5105(a)(7).)

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

Adams Stirling PLC