Special Membership Meetings
Boards of directors may call special membership meetings to vote on special assessments, to amend/restate CC&Rs and Bylaws, and to vote on grants of exclusive use of the common area. The only business that may be conducted at special meetings is that contained in the notice of meeting and agenda.
Election Rules Required
All associations are required to adopt election rules, even for non-director elections. (Civ Code § 5105(a))
"Election" Defined. Election rules can be amended, but associations must follow the rule amendment process required by the Davis-Stirling Act. Election rules cannot be amended less than 90 days before an election. (Civ. Code § 5105(h).) Unfortunately, the statute does not define when an election occurs. However, it is indirectly defined in Civil Code § 5105(h)(4), which states, “Require the inspector or inspectors of elections to deliver, or cause to be delivered, at least 30 days before an election, to each member both of the following documents: (A) The ballot or ballots.…” There’s similar language for electronic ballots. (Civ. Code § 5105(i)(3)(A).) That can only be interpreted as defining the election as the due date for returning the ballots (Civ. Code § 5115 (c)), which isn’t necessarily the date ballots are opened and votes tallied.
Non-Director Elections. With the separate mandatory 28-day notice period for membership review of proposed rule changes (Civ. Code § 4360(a)), the waiting period for updating election rules for non-director elections is extended to 118 days since the board cannot approve the change until the end of the 28 days. Accordingly, the process to amend election rules for electronic voting should begin at least 120-130 days before the deadline date for returning ballots.
"Record Date" for Voting
The Corporations Code allows the board to fix a "record date" by which one must be a member to be entitled to vote in an election. Typically, the record date is set a few days to a week in advance of the distributing of the ballots. This allows time to prepare election materials, put labels on ballot envelopes, and print a voter list for the Inspector of Elections to use at the election meeting. Anyone who becomes a member after that date may attend the membership meeting but is not eligible to vote. If the board fails to set a record date, it defaults to the date the first ballot is distributed to the members. (Corp. Code § 7611(c).)
WRITTEN BALLOTS |
ELECTRONIC BALLOTS |
Applicable Elections |
Per Civil Code § 5100(a), beginning July 1, 2006, associations may use a 2-envelope secret balloting system for the following elections:
• special assessments over 5% (see exception for emergency assessments) or regular assessments over 20% (Civ. Code § 5605.)
• amendments to CC&Rs and bylaws (see exception for board-approved amendments)
• grants of exclusive use common areas (see exception to membership approval).
|
Beginning January 1, 2025, associations may use electronic secret ballots following non-director elections:
• amendments to CC&Rs and bylaws
• grants of exclusive use common areas
• CANNOT be used to approve regular or special assessments. (Civ. Code § 5105(i).)
If an association plans to use electronic balloting, it must include information in its annual statement on the procedures to either opt out of or opt into voting by electronic secret ballot. (Civ. Code § 5105(i)(1)(D).)
|
Set Meeting Date and Hire Inspector |
65 to 75 days before the voting deadline, select a date for the annual meeting and hire an inspector of elections. Select a proposed voting deadline. Most associations have the voting deadline on the same date as the ballot counting meeting, but some count ballots at a later meeting after the voting deadline.
|
120 days before the voting deadline, select a date for the annual meeting and hire an inspector of elections. Select a proposed voting deadline: If notifying the members of electronic voting, select a prospective date for the voting deadline. Most associations have the voting deadline on the same date as the ballot counting meeting, but some count ballots at a later meeting after the voting deadline.
|
Notice of Voting Method |
|
At least 120 days before the voting deadline, give general notice that electronic voting will be used. Include the current voting method, email address on file for electronic voting, explanation of the opt-in/opt-out process as applicable, and the deadline to opt in/opt out as applicable. (Civ. Code § 5105(i)(4).) The deadline for owners to indicate their preferred balloting method (electronic or written ballot) must be at least 90 days prior to the voting deadline. (Civ. Code § 5105(i)(1)(A).) To opt into electronic voting, owners must provide a valid email address. (Civ. Code § 5105(i)(1)(E).)
If using the “opt-out” option, (Civ. Code § 5105(i)(1)) the notice must be sent by individual notice and must include (i) the member’s current voting method; (ii) the email address that will be used; (iii) an explanation of how to opt out of electronic voting; and (iv) the deadline for opting out.
|
Prepare a Voter List |
At least 65-75 days before the election, prepare a voter list containing the name, voting power, and the physical address of the voter’s separate interest OR the parcel number OR both. The voter must also contain the mailing address for the ballot, if it differs from the physical address of the voter’s separate interest or if only the parcel number is used. (Civ. Code § 5105(a)(7).) |
At least 65-75 days before the election, prepare a voter list containing the name, voting power, and the physical address of the voter’s separate interest OR the parcel number OR both. The voter must also contain the mailing address for the ballot, if it differs from the physical address of the voter’s separate interest or if only the parcel number is used. (Civ. Code § 5105(a)(7).)
If electronic voting is used, prepare a voting list identifying which members will vote by electronic secret ballot and which members will vote by written secret ballot. (Civ. Code § 5105(i)(1)(D).)
|
Notice of Voter Verification Deadline |
At least 30 days before the ballots are distributed, allow members to verify the accuracy of their information on the voter list. Notification of errors in the list should be reported at least 10 days before ballots are distributed to allow time for corrections to be made before the ballots are distributed. Any errors or omissions in either list must be reported to the inspector(s) of elections. Inspector(s) must then change and correct the lists within 2 business days of any error or omission being reported. (Civ. Code § 5105(a)(7).)
Instead of distributing the voter list to the membership, include a statement that the association prepared a voter list and members have a certain time frame (specified in the notice) in which to verify their individual information.
|
At least 30 days before the ballots are distributed, allow members to verify the accuracy of their information on the voter list. Notification of errors in the list should be reported at least 10 days before ballots are distributed to allow time for corrections to be made before the ballots are distributed. Any errors or omissions in either list must be reported to the inspector(s) of elections. Inspector(s) must then change and correct the lists within 2 business days of any error or omission being reported. (Civ. Code § 5105(a)(7).)
Instead of distributing the voter list to the membership, include a statement that the association prepared a voter list and members have a certain time frame (specified in the notice) in which to verify their individual information.
|
Pre-Ballot Notice |
|
At least 30 days before the deadline to opt out of voting by electronic secret ballot (Civ. Code § 5105(i)(4)), give general notice (individual if requested by a member) of the following:
• The member’s current voting method.
• The email address of the member that will be used for voting by electronic secret ballot.
• Instructions on how to vote electronically.
• The date and time by which electronic ballots must be transmitted.
• An explanation of how to opt out of voting electronically and the deadline for opting out.
|
Prepare Ballots |
Ballots must state the applicable quorum(s) for matters to be voted on and the date and time by which the ballot must be received, and if the date may be extended to achieve a quorum or allow additional participation by the members.
|
Distribute Ballot Materials
and Election Rules |
At least 30 days before the deadline for voting and at least 30 days after the pre-ballot notice was sent, the inspector of elections or the association must mail (first-class) or otherwise deliver ballots and pre-addressed envelopes with instructions on how to return them. (Civ. Code § 5115(c).)
Election Rules must also be delivered to members. (Civ. Code § 5105(h)(4).) Delivery may be accomplished by either of the following methods:
• Posting the election operating rules to an internet website and including the corresponding internet website address on the ballot together with the phrase, in at least 12-point type: “The rules governing this election may be found here:”
• Individual delivery (mailed).
|
Deliver individual notice of the electronic secret ballot to each member 30 days before the election, along with instructions on (i) how to obtain access to that internet-based voting system and (ii) how to vote by electronic secret ballot. (Civ. Code § 5105(i)(3).)
Paper ballots must be delivered to members who choose to vote by paper and to those members who do not provide a working email address to the association. (Civ. Code § 5105(i)(1)(C).)
If the association does not have a member’s email address required to vote by electronic secret ballot by the time at which ballots are to be distributed, the association shall send the member a written secret ballot. (Civ. Code § 5105(i)(7).)
Election Rules must also be delivered to members. Civ. Code § 5105(h)(4). Delivery may be accomplished by either of the following methods:
• Posting the election operating rules to an internet website and including the corresponding internet website address on the ballot together with the phrase, in at least 12-point type: “The rules governing this election may be found here:”
• Individual delivery (mailed).
|
Votes Are Irrevocable |
All votes must be counted and tabulated by the inspector of elections (or designees of the inspector) in public at a properly noticed open meeting of the board or members. Any candidate or other member of the association may witness the tabulation of votes. Ballots may not be opened before the time and place at which they are publicly tabulated. The inspector or designees may verify the member’s information and signature on the outer envelope prior to the meeting at which ballots are tabulated. Once a ballot is received by the inspector, it shall be irrevocable. (Civ. Code § 5120(a).) |
A vote cast electronically is irrevocable. (Civ. Code § 5105(i)(6).)
No person shall open or otherwise review any tally sheet of votes cast by electronic secret ballots before the time and place at which the ballots are counted and tabulated. (Civ. Code § 5120(c).)
|
Ballot Counting Meeting |
The meeting is called to order.
• Call for any additional balloting if the voting period is still open. Close polls.
• Inspector(s) and designated assistants may open ballots and tally votes.
• Results announced, recorded in the next board meeting minutes and provided by general notice (e.g., posted) within 15 days.
|
The meeting is called to order.
• Maintain a tally sheet of votes cast by electronic secret ballot.
• Results announced, recorded in the next board meeting minutes and provided by general notice (e.g., posted) within 15 days.
|
Storing Election Materials
Election materials remain in the custody of the inspector of elections or at a location designated by the inspector until after the time allowed by Section 5145 for challenging the election has expired (one year), at which time custody of the records may be transferred to the association. (Civ. Code § 5125.) Starting January 1, 2020, members are allowed to inspect election materials. (Civ. Code § 5200(c).) Election materials include a voter list, ballots, signed voter envelopes (may be inspected but not copied), and proxies.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.