Senate Bill 323 added new Civil Code section 5105(c)(1), which provides that “[s]ubject to paragraph (2) of [Civil Code § 5105(d)], an association may require a nominee for a board seat, and a director during their board tenure, to be current in the payment of regular and special assessments.”
Paragraph (2) of Civil Code section 5105(d), in turn, provides that this current-in-payment qualification does not apply to director-candidates who have entered into a payment plan pursuant to Civil Code section 5665. So far, so good.
Paragraph (2) of Civil Code section 5105(d), in turn, provides that this current-in-payment qualification does not apply to director-candidates who have entered into a payment plan pursuant to Civil Code section 5665. So far, so good.
New Civil Code section 5105(d), however, provides that “[t]he person shall not be disqualified for failure to be current in payment of regular and special assessments if either of the following circumstances is true”: the person has entered into a payment plan pursuant to Civil Code section 5665 (ok, got it) or “[t]he person has paid the regular or special assessment under protest pursuant to [Civil Code] Section 5658.”
As such, Sections 5105(c)(1) and (d) conflict: Section 5105(c)(1) provides that the only exception to a current-in-payment qualification is having entered into a valid payment plan, while Section 5105(d) provides that payment under protest is also a valid exception.
Compounding this conflict is the fact that Section 5105(d)(1) provides that the payment-under-protest exception applies if the “person has paid the regular or special assessment under protest.” The Section's “or” - in tandem with assessment, singular - suggests that a person with multiple delinquencies who has only paid some under protest is nevertheless exempt from current-in-payment qualifications.
If the intent of SB 323 was to discourage assessment-related qualifications, these provisions succeed admirably.
As such, Sections 5105(c)(1) and (d) conflict: Section 5105(c)(1) provides that the only exception to a current-in-payment qualification is having entered into a valid payment plan, while Section 5105(d) provides that payment under protest is also a valid exception.
Compounding this conflict is the fact that Section 5105(d)(1) provides that the payment-under-protest exception applies if the “person has paid the regular or special assessment under protest.” The Section's “or” - in tandem with assessment, singular - suggests that a person with multiple delinquencies who has only paid some under protest is nevertheless exempt from current-in-payment qualifications.
If the intent of SB 323 was to discourage assessment-related qualifications, these provisions succeed admirably.