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Senate Bill 323 revised Civil Code section 5145(a) to provide that “[a] member of an association may [sue] for a violation of this article by the association … within one year of the date that the inspector notifies the board and membership of the election results or the cause of action accrues, whichever is later.”
Civil Code section 5120(b), however, currently provides that boards are responsible for notifying the membership of election results. If an inspector does so, this in and of itself could arguably constitute an election law violation.
Civil Code section 5120(b), however, currently provides that boards are responsible for notifying the membership of election results. If an inspector does so, this in and of itself could arguably constitute an election law violation.
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Section 5200(c) of the Davis-Stirling Act defines “association election materials” as the “returned ballots, signed voter envelopes, [voter list], proxies, and … candidate registration list.”
Section 5125 provides that association election materials “shall at all times be in the custody of the inspector … or at a location designated by the inspector … until after the tabulation of the vote, and until the time allowed by Section 5145 for challenging the election has expired, at which time custody shall be transferred to the association.” Section 5145 requires election challenges to be brought within one year, so Section 5125 is generally interpreted as requiring inspectors to maintain custody for one year then transfer the association election materials to the HOA.
Section 5125 provides that association election materials “shall at all times be in the custody of the inspector … or at a location designated by the inspector … until after the tabulation of the vote, and until the time allowed by Section 5145 for challenging the election has expired, at which time custody shall be transferred to the association.” Section 5145 requires election challenges to be brought within one year, so Section 5125 is generally interpreted as requiring inspectors to maintain custody for one year then transfer the association election materials to the HOA.
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Senate Bill 323 added new Civil Code section 5105(c)(4), which provides that an association may disqualify a candidate for the board “if that person discloses, or if the association is aware or becomes aware of, a past criminal conviction that would, if the person was elected, either prevent the association from purchasing the fidelity bond coverage required by [Civil Code s]ection 5806 or terminate the association’s existing fidelity bond coverage.”
This optional qualification raises a number of questions and problems, both for associations which adopt it and those which do not:
This optional qualification raises a number of questions and problems, both for associations which adopt it and those which do not:
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Senate Bill 323 dramatically changed association election law, including the laws controlling election challenges, candidate and director qualifications, election rules, election timelines, pre-election notices, inspectors, association recordkeeping, and more.
Sponsored by an anti-HOA lobbying organization, SB 323’s purported goal was to increase the “regularity, fairness, formality, and transparency” of HOA elections. Unfortunately, SB 323 in practice imposed a costly, complex, and harmful set of new election requirements for little gain.
Sponsored by an anti-HOA lobbying organization, SB 323’s purported goal was to increase the “regularity, fairness, formality, and transparency” of HOA elections. Unfortunately, SB 323 in practice imposed a costly, complex, and harmful set of new election requirements for little gain.
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Senate Bill 323 added new Civil Code section 5105(c), which provides that an association “may disqualify a person from nomination as a candidate pursuant to any of the following,” with “the following” being a list of optional qualifications.
Section 5105(c) does not provide that its list is exclusive or the only set of qualifications which may be imposed, and new Civil Code sections 5105(b) and (d) provide additional mandatory and optional qualifications.
Section 5105(c) does not provide that its list is exclusive or the only set of qualifications which may be imposed, and new Civil Code sections 5105(b) and (d) provide additional mandatory and optional qualifications.
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Senate Bill 323 revised Civil Code section 5105(a)(3) to provide that election rules must “[s]pecify the qualifications for candidates for the board and any other elected position, subject to [new Civil Code section 5105(b)].”
Civil Code section 5105(a)(5)(B) currently provides that one method of selecting inspectors is via election by the members. For communities which utilize this method, however, SB 323’s above-noted revision may mean that new Civil Code section 5105(b)’s ban on non-member candidates will apply to inspector candidates as well.
Civil Code section 5105(a)(5)(B) currently provides that one method of selecting inspectors is via election by the members. For communities which utilize this method, however, SB 323’s above-noted revision may mean that new Civil Code section 5105(b)’s ban on non-member candidates will apply to inspector candidates as well.
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As discussed in my other blog posts, Senate Bill 323 permits associations to impose a number of specific qualifications on director-candidates and directors.
SB 323 is silent, however, as to association qualifications in regards to non-elected association positions, such as those imposed on officers and committee members. Most associations require such positions to be filled by members in good standing. Presumably such qualifications remain valid, at least in regards to those officer positions which are not expressly required to be filled by directors.
SB 323 is silent, however, as to association qualifications in regards to non-elected association positions, such as those imposed on officers and committee members. Most associations require such positions to be filled by members in good standing. Presumably such qualifications remain valid, at least in regards to those officer positions which are not expressly required to be filled by directors.
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According Assembymember Ting, Assemby Bill 3182 was necessary in order to "marshal all available resources to address the housing and homelessness crisis." While this intention is good — California is certainly facing a housing crisis — voiding all but short-term rental and lease restrictions for California's 50,000-plus CIDs is the wrong solution.
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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.
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Senate Bill 323 added new Civil Code section 5105(h), which provides that “[e]lection operating rules adopted pursuant to this section shall not be amended less than 90 days prior to an election.”
It is unclear as to what date is meant by “an election.” Does this mean the date on which the ballots are distributed, the deadline for voting, or the meeting at which ballots are counted? New Civil Code section 5105(g)(4) and common sense suggest “an election” means the deadline for voting, but this interpretation is susceptible to others as well, including, potentially, the first exercise of any of the free speech activities controlled by said rules.
It is unclear as to what date is meant by “an election.” Does this mean the date on which the ballots are distributed, the deadline for voting, or the meeting at which ballots are counted? New Civil Code section 5105(g)(4) and common sense suggest “an election” means the deadline for voting, but this interpretation is susceptible to others as well, including, potentially, the first exercise of any of the free speech activities controlled by said rules.