QUESTION: We sent out the annual meeting package, including ballots, in a timely manner. During the time between the mailing and the meeting, a property was sold. Is the prior owner allowed to vote? What happens to the "secret ballot" they returned? Should the new owner get a ballot to vote for directors?
ANSWER: We turn to the Corporations Code for the answer.
VOTES AT MEETINGS NOT USING WRITTEN BALLOTS. For membership votes that do not involve the use of written ballots, the Corporations Code allows the bylaws to establish, or if not, the board to fix a "record date" on which one must be a member to be entitled to vote at a meeting. The record date cannot be more than 60 days before the date of the meeting. If no record date is fixed, members on the day of the meeting are entitled to vote at the meeting. (Corp. Code §7611(b).)
VOTES USING WRITTEN BALLOTS UNDER CORP. CODE §7513. For membership votes using written ballots (such as those required under the Davis-Stirling Act like the election or recall of directors or for assessment increases), the Corporations Code again allows the bylaws to establish, or if not, the board to fix "record date" for voting. However, in this case, if neither the bylaws nor the board establishes a record date, the record date defaults to the date the first ballot is mailed or solicited to the members. (Corp. Code §7611(c).)
Typically, the record date is set a few days to a week in advance of the mailing of the ballots (see Election timeline). 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.
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