Adams Stirling PLC


Members have the right to petition the board to schedule a special membership meeting for any “lawful purpose.” (Corp. Code § 7510(e).) Because of the division of authority between the membership and the board, members' ability to petition the board for a special membership vote is limited. The allocation of powers is found in Corporations Code § 7210 which states that except for those matters that require member consent or approval either by some statute or by the corporation’s documents, all corporate powers are exercised by, or under the direction of, the board of directors. Powers allocated to the membership (by their governing documents and various statutes) generally include electing and recalling directors, amending governing documents, and approving assessments above a certain percentage. For a more complete list of the allocation of powers, see "Powers & Rights." Following are examples of invalid petitions:

To Amend CC&Rs. Petitioning the board for a special membership meeting to amend the governing documents with a membership proposed amendment is not valid. When it comes to amendments, the board has access to legal counsel to properly evaluate and word amendments to not conflict with existing law and for the best interests of the association. In addition, directors have a fiduciary duty to act in the best interests of the membership, whereas members do not. Individuals not serving on the board have no similar obligation to act in the best interests of the community. Instead, they are free to act in their own best interests. There is good reason to restrict amendment drafting powers to the board. If members could propose and vote on their own amendments, they could amend the CC&Rs to eliminate all assessments and cease maintaining the common areas. If members want to amend their governing documents, they must present their idea to the board so it can go through proper legal evaluation. If the idea is good, the board can have language properly drafted and ballots prepared for presentation to the membership for approval.

To Reverse Board Action. Except for rule changes, members cannot call a special membership vote to veto a board's decision. Rather, the power to veto is indirect. If members are unhappy with board actions (or inaction), the membership can remove the board or wait until the annual meeting and elect a new board.

To Fire a Manager. Members cannot call a special membership vote to fire a manager. Managers, whether employees of the association or employees of a management company, are not subject to firing by the membership. Such matters fall under the authority of the board of directors. If members are unhappy with management, members ultimately have recourse by electing directors who agree with their position.

To Permanently Remove a Director. The Corporations Code does not provide for the permanent removal of directors. So long as the person meets the qualifications of a director and there are no term limits, he/she can be elected to the board even if recalled by the membership. If an association has cumulative voting, almost anyone can be elected, no matter how dysfunctional they might be. To avoid this problem, associations should amend their bylaws to eliminate cumulative voting.

To Adopt a Rule. Only the board has the authority to adopt and amend rules. (Civ. Code § 4360.) Members can, however, veto a rule if they follow the steps described in Civil Code § 4365 but that is the extent of membership authority. Although members can petition for a special meeting for any lawful purpose (Corp. Code § 7510(e)), forcing a ballot to add or change rules is not within their authority (unless the governing documents state otherwise). Indirectly, members can change the rules by electing board members who agree with their position.

A Recycled Petition. If a petition to recall the board was submitted, a meeting was held but failed to achieve quorum, and was adjourned, the same petition cannot be recycled to launch another recall meeting. If the petitioners want to launch another recall, they need to circulate a new petition and obtain new signatures.

Online Petitions. Members cannot use online petitions such as to call a special meeting. Associations have the right to verify signatures. With paper-and-ink petitions, members sign their names in their distinctive handwriting styles which can easily be verified. Electronic signatures are easily forged by a petitioner plus anyone can "sign" a petition (children, non-member spouses, tenants, etc.) with the click of a mouse. Electronic signatures cannot be verified.

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