NOTICE & DOCUMENT DELIVERY TO HOA & OWNERS

Notice & Email Delivery To Owners

Solicit Information. 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) for the membership list, which the association is obligated to maintain. This notice must be given no later than 30 days before mailing the Annual Budget Report. (See Sample Form; NOTE: An email with the requested information is sufficient for the association's records. (Civ. Code § 1633.7.) The email can be printed and stored in a file or it can be stored electronically.)

Owner Preferred Method of Delivery. Effective January 1, 2023, documents and notices that are required to be provided by “individual notice” or “individual delivery” must be delivered by the “preferred delivery method” specified by the member under Civil Code § 4041. Associations may find themselves in the administratively difficult position of delivering notices in four different ways:

• Mail to some members (§ 4041(a)(1)(A));
• Email to other members (§ 4041(a)(1)(B));
• Mail plus Email to a third group of members (§ 4041(a)(1)); and
• No Preference: If a member does not provide a preferred delivery method, notices must be delivered by "first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier addressed to the recipient at the address last shown on the books of the association." (§ 4040(a)(2))

Bounce-Backs. In addition, associations must have a procedure to monitor email for bounce-backs or error notifications. If delivered to an invalid email address, the association must resend the notice to a snail mail address or another email address identified by the member. (Civ. Code § 4041(e).)

General Notice to Members

If a provision of this act requires “general delivery” or “general notice” (such as board meetings), the document may use one or more of the following methods:

• Billing Statement. Inclusion in a billing statement. (Civ. Code § 4045(a).)
• Electronic. Email, facsimile, or other electronic means if the recipient has consented, in writing, to that delivery method. (Civ. Code § 4040.)
• Mail. First-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service carrier. The document shall be addressed to the recipient at the address last shown on the association's books. (Civ. Code § 4040.)
• Newsletter. A notice or report mailed or delivered as part of a newsletter, magazine, or other organ regularly sent to members shall constitute written notice or report under this division when addressed and mailed or delivered to the member, or in the case of members who are residents of the same household and who have the same address on the books of the corporation, when addressed and mailed or delivered to one of such members, at the address appearing on the books of the corporation. (Corp. Code § 5016; Civ. Code § 4040.)
• Posted in a Prominent Location. Post the notice in a prominent location accessible to all members if the location has been designated for the posting of general notices by the association in the annual policy statement, prepared under Section 5310. (Civ. Code § 4045(a)(3)). 
• Website. If the association maintains an internet website to distribute information on association business to its members, by posting the notice on the association's internet website in a prominent location accessible to all members if designated as a location for posting general notices in the annual policy statement. (Civ. Code § 4045(a)(5)).

Mailbox Rule. The "mailbox rule" is also known as the "mailbox posting rule" or "posting rule." When a letter (or contract or notice, etc.) is mailed, the rule determines when the letter is deemed "delivered" regardless of when it arrives at the other end. The mailbox rule came into use in the 1800s, starting with contract law, to determine when an offer is deemed accepted. Under the rule, an offer is considered accepted at the time the acceptance is dropped into a mailbox or handed to a postman. [When a letter] properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed... that it reached its destination at the regular time and was received by the person to whom it was addressed. (Rosenthal v. Walker, 111 U.S. 185, 193 (1884).) Proof of mailing creates a presumption that the intended party received the letter. If the party denies receipt, it creates an issue of fact for a court to resolve. If the sender knows the letter was not received (because it was returned to the sender), the presumption no longer applies.

Davis-Stirling Act. The mailbox rule has been adopted by the Davis-Stirling Act to establish when a notice from the association is deemed delivered to members. A notice or document is deemed delivered upon deposit into the United States mail. (Civ. Code § 4050(b).)

Individual Notice to Members

If a provision of this act requires that an association deliver a document by “individual delivery” or “individual notice,” the document shall be delivered by one of the following methods:

• First-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service carrier. The document must be addressed to the recipient at the address last shown on the association's books.
• Email, facsimile, or other electronic means if the recipient consented to that delivery method in writing. The recipient may revoke the consent.

Sale of Emails. Associations and their managing agents cannot sell or transmit a member's personal information without the member's consent. (Civ. Code § 5230(c).) 

Incentives for Electronic Delivery. Associations can offer their members incentives, such as gift cards, bottles of wine, etc., to switch from paper to electronic delivery of disclosures, notices, and documents.

Delivery to the Association

Who to Deliver To. If documents are required to be delivered by members to the association, they shall be delivered to the person designated in the annual policy statement, prepared under Section 5310, to receive documents on behalf of the association. If no person has been designated to receive documents, the document shall be delivered to the president or secretary of the association. (Civ. Code § 4035(a).)

How Delivered. Documents may be delivered by any of the following methods (Civ. Code § 4035(b).):

• By email, facsimile, or other electronic means if the association assented to that delivery method.
• By personal delivery, if the association has assented to that delivery method. If the association accepts a document by personal delivery, it shall provide a written receipt acknowledging delivery of the document.
• By first-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service center.

How to Calculate Notice Requirements

The Davis-Stirling Act does not address how to calculate days to give notice of hearings, board meetings, membership meetings, etc. This is addressed elsewhere in the Civil Code as the time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is excluded. (Civ. Code § 10.) Since the statute is worded in days, not hours, a notice complies if it is posted one day and the meeting is held anytime x number of days later, even if the period is short by a few hours. 

Holidays. Holidays are defined to include Sundays. Holidays within the meaning of this code are every Sunday and other days specified or provided for as holidays in the Government Code of the State of California. (Civ. Code § 7.) Government Code § 6700 (effective 1-1-16) defines state holidays as:

• Every Sunday
• January 1st
• The third Monday in January is “Dr. Martin Luther King, Jr. Day.”
• February 12th, known as “Lincoln Day”
• The third Monday in February
• March 31st, known as “Cesar Chavez Day”
• The last Monday in May
• July 4th
• The first Monday in September
• September 9th, known as “Admission Day”
• The fourth Friday in September, known as “Native American Day”
• The second Monday in October, known as “Columbus Day”
• November 11th, known as “Veterans Day”
• December 25th
• Good Friday from 12 noon until 3 p.m.
• Every day appointed by the President or Governor for a public fast, thanksgiving, or holiday

Example. When giving a 10-day notice of a disciplinary hearing, count days, not hours. When counting days, count calendar days, excluding the first day. If the last day of the notice period falls on a Sunday or a holiday, extend the time to the next non-holiday.

Disclosure Checklist. Associations must disclose many things to the membership, such as the presence of asbestos, how they plan to fund their reserves, their rules enforcement policies, etc. See "Disclosure Checklist" for a list of all the disclosures.

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