IN DIGITAL ELITE?
QUESTION: The board has about 350 email addresses for our members. They also have access to a private social network that has 39% of the households as members. Would the board be required to send meeting notifications via postal mail to members not included in our "digital elite"?
ANSWER: I’m impressed you have so many signed up for email. Do you need to send snail mail notices to members who are still in the Dark Ages? Fortunately, "No."
Posting Meeting Notices. As long as the association posts meeting notices in a prominent location accessible to all members, there is no requirement to mail notices. (Civ. Code §4045(a)(3).) Posting notices is allowed so long as the association has designated the location in the annual policy statement prepared under Civil Code §5310. Associations that do not post meeting notices need to use another general delivery method (first-class mail, email to members who have consented in writing, billing statement, newsletter or in-house television broadcast).
Mailing Meeting Notices. The exception to posting is if a member asks for individual delivery. (Civ. Code §4045(b).)Members can ask their associations to have meeting notices sent to them by individual delivery which includes postal mail and email. (Civ. Code §4040.) If any of your members have requested meeting notices be mailed or emailed to them, then, in addition to posting in the common area, the association will need to mail or email notices to the members who have asked.
Content. In addition to the date, time, and location of the meeting, the notice must also contain the agenda. (Civ. Code §4920(c).)
RECOMMENDATION: Make sure you have designated a conspicuous location to post the meeting notices and agendas in your annual policy statement. Although you are not required to also email board meeting notices, your “digital elite” members will appreciate receiving notice by email.
WEEKLY LIST OF
WHO HASN’T VOTED
QUESTION: It is time for our annual election. The ballots are being returned to an independent election company. This company is providing a weekly list to the board of all members who have not yet voted. Board members plan to contact these individuals with a request to vote for certain candidates. Is this legal? Do the other candidates have a right to this list so they can do the same?
ANSWER: A strict reading of the Davis-Stirling Act indicates the list cannot be used by directors, candidates, management or anyone else to campaign for certain candidates.
Campaigning: By statute, association money cannot be used for campaign purposes (Civ. Code §5135(a)) Contacting members to urge them to vote for certain candidates qualifies as a campaign purpose (Civ. Code §4920(b)(1).) The association, in paying for the independent election company, has spent funds for the list of members who have not voted. Therefore, directors, candidates or any one else who uses the list to ask members to vote in a certain manner would be using association funds for campaign purposes. All members have a right to campaign for or against any candidate at their own expense.
Equal Access Required: If any member or candidate advocating a point of view related to an election is provided access to association media (such as newsletters, internet websites) the association must provide equal access to all candidates and members advocating a point of view. (Civ. Code §5105(a).) Associations must ensure access to any common area meeting space during a campaign at no cost to all candidates and members advocating a point of view. (Civ. Code §5105(a)(2).)
Early Ballot-Voter Count: The inspector of elections can provide an early ballot-voter count that includes the number of ballots that have been received. Providing a list of who voted is not one of the inspector’s duties (Civ. Code §5110(c)) but is within the inspector’s discretion.
RECOMMENDATION: Voter apathy is a common ailment in most associations and medical research has not yet developed a cure. Contacting members who haven’t voted and asking them to send in ballots may be helpful to meet the quorum of members requirement.
Using a "non-voter" list supplied by the inspector of elections to contact members is allowed, so long as it is not used to campaign for certain candidates. To ensure the list is being used just to encourage voter participation, contact should be made in writing (email or mail).
If non-voting members are to be contacted by phone, it is best to have management make the calls and use a script that does not endorse any particular candidates, but only asks the members to vote.
Thank you to attorney Laurie Poole for this article.
Kudos #1. Was starting to find out where your funeral was held when I received your newsletter. Your newsletters are my second source for information, but now my main source after the death of the Times columnist. -Eric D.
Kudos #2. Great Issue ........Thanks for all your guidance. -Raye P.
Kudos #3. Really Excellent!!! -S.L.
Attorney #1. Congratulations on choosing Jamie Handrick to join your San Diego team. She is so knowledgeable and keeps my boards at ease when working with her. With Laurie Poole at the lead, it should be a winning combination! -Lynn R.
Attorney #2. I send digital salutations & appreciations to you over the mighty Sierra Nevada (Reno) regarding your illuminating missives. I have noticed a trend: nearly every newsletter introduces another lawyer to your firm. May I assume California HOA laws are not only multiplying in number but also growing in complexity? Or am I more accurate in observing how our species is moving away from kind, considerate, respectful, common-sense conversation with neighbors & association boards and moving swiftly & directly into the courtroom? I beseech you to keep “conversing” with your readership, offering kind, considerate, respectful, common-sense words through your engaging wit-n’-wisdom. -Donald M.
RESPONSE: You are right about the trend. There is a growing need for HOA lawyers in California and I've had the good fortune to attract talented ones to the firm. You are also right about California's laws multiplying in number and complexity. Our legislature has gone off the rails with excessive regulation. I don't know if lack of civility is on the rise but litigation seems to be. Despite our efforts to keep associations out of disputes, our litigation department is on overload.
Trucks #1. You said pickup trucks could not be banned where cars are permitted but I wonder if there could be a size restriction, such as “vehicles longer or wider than xx feet or inches may not park in (certain areas)”? Large pick up trucks can be visually disruptive and lower the look of a condo complex. They are also wider than a car and can make passing them on a driveway difficult. Another large pickup might not be able to get through. -LL
RESPONSE: Yes, associations can impose reasonable restrictions on the size and types of vehicles. In my opinion, RVs, tow trucks, tractor-trailer rigs, monster trucks, etc. can all be restricted. Such vehicles are not normal and accepted means of personal transportation, and some are as unsightly as heck.
Trucks #2. Our CC&Rs say we cannot park non-standard vehicles in our driveways and lists campers, trailers and golf carts. The DMV defines carts as a vehicle, which makes them a cheap Tesla. Is the restriction reasonable? -Dave M.
RESPONSE: Yes, golf carts can be restricted. It depends on the community. Some retirement communities allow them and it makes perfect sense. In other communities, not only are they an eyesore, they could represent a safety hazard as a slow-moving vehicle on a fast, busy road. Each community can decide for itself what makes sense for their association.
Trucks #3. I thought the Nahrstedt case overturned the Bernardo case regarding trucks. -Anon
RESPONSE: I'm glad you asked. The California Supreme Court in Nahrstedt v. Lakeside Village criticized the Bernardo Villas decision for failing to apply a deferential standard to the association's CC&Rs. The Court did not overturn Bernardo Villas. Instead, it established a test for evaluating CC&R restrictions.
It held that CC&Rs are presumed reasonable and will be enforced uniformly against all residents of the common interest development unless the restriction is (i) arbitrary, (ii) imposes burdens on the use of lands it affects that substantially outweigh the restriction's benefits to the development's residents, or (iii)) violates a fundamental public policy. Moreover, the restriction must be viewed not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole.
If the pickup truck prohibition had not previously been litigated and were tried today under the Nahrstedt standard, it might produce a different result. Until that happens, the Bernardo Villas decision stands and blanket pickup truck prohibitions are invalid.