HOA Board Elections — California Civil Code §§ 5100–5145

Most California condominium and planned-development associations are governed by the Davis-Stirling Common Interest Development Act (Civil Code §§ 4000–6150). The election article of that Act, Civil Code §§ 5100–5145, is the election code: it says which votes must be by secret ballot, how nominations and notices work, who counts the ballots, and what a member can do if the rules are broken.

The statute sets a floor. It applies to incorporated and unincorporated associations "notwithstanding any contrary provision of the governing documents" (§ 5100(c)), and where it conflicts with the Nonprofit Mutual Benefit Corporation Law on elections, this article prevails (§ 5100(e)). Each association must also adopt its own election operating rules that fill in the details (§ 5105(a)).

Despite any other law or any provision of the governing documents, elections regarding assessments legally requiring a vote, the election and removal of directors, amendments to the governing documents, and the grant of exclusive use of common area under § 4600 must be held by secret ballot using the procedures in this article (§ 5100(a)(1)). The article also governs a vote on any other topic that the operating rules expressly say it governs (§ 5100(b)). A seat on the board must be filled by an election under these procedures when the director's term expires and at least once every four years (§ 5100(a)(2)).

Three limits matter. The procedures apply to votes cast directly by the membership, not to votes cast by delegates or other elected representatives (§ 5100(d)). Directors need not be elected under this article if the governing documents provide that one member from each separate interest is a director (§ 5100(f)). And a member may not substitute a proxy for a ballot: proxies "shall not be construed or used in lieu of a ballot," and an association may use them only if its bylaws permit or require them (§ 5130(b)).

If, at the nomination deadline, the inspector of elections determines that the number of qualified candidates is not more than the number of vacancies, the association "may, but is not required to," treat those candidates as elected by acclamation (§ 5103). Several conditions must all be met. The association must have held a regular director election within the last three years, counted from the date ballots were due in the last full election to the start of voting in the proposed one (§ 5103(a)).

The association must also have given individual notice of the election and the nomination procedure: an initial notice at least 90 days before the nomination deadline, and a reminder notice between 7 and 30 days before it, each explaining that acclamation is possible (the reminder may omit that statement if the candidates already outnumber the seats) (§ 5103(b)(1)(D), (b)(2)(E)). It must acknowledge each nomination, and tell the nominee whether he or she is a qualified candidate, within seven business days (§ 5103(c)). Finally, the board must vote to seat the candidates by acclamation at a meeting whose agenda names each candidate (§ 5103(e)).

The association must adopt operating rules that give equal access to association media, newsletters or websites if any candidate or member advocating a point of view is given access during a campaign, including candidates the board does not endorse, without editing or redacting their content (§ 5105(a)(1)). The rules must also give all candidates and members advocating a point of view access to the common-area meeting space, if any, at no cost (§ 5105(a)(2)). A nomination procedure is not reasonable if it prevents a member from nominating himself or herself (§ 5105(a)(3)). The rules cannot be amended less than 90 days before an election (§ 5105(h)(4)(B)(iii)).

On who may run: the association must disqualify a nominee who is not a member when nominated or who has served the maximum number of terms its rules allow (§ 5105(b)). Through its bylaws or election operating rules only, it may disqualify a nominee who is not current on regular and special assessments, who would serve alongside a joint owner of the same parcel, who has been a member for less than one year, or whose past criminal conviction would block or end the insurance required by § 5806 (§ 5105(c)). But nonpayment of fines, late charges, collection charges or third-party costs cannot be a reason, and a member who has paid an assessment under protest or is in compliance with a payment plan cannot be disqualified for it (§ 5105(d)). An association also may not disqualify anyone who has not been offered internal dispute resolution (§ 5105(e)).

On who may vote: the rules must prohibit denying a ballot for any reason other than not being a member when ballots are distributed, and must prohibit denying a ballot to a person with a general power of attorney, whose ballot must be counted if returned in time (§ 5105(h)(1)–(3)). The association must keep a candidate list and a voter list and let members check their own information at least 30 days before ballots are distributed; errors reported to the inspector must be corrected within two business days (§ 5105(a)(7)).

The association must select an independent third party as inspector of elections, and the number of inspectors is one or three (§ 5110(a)). An independent third party includes a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public. He or she may be a member but may not be a director, a candidate, related to either, or someone currently employed or under contract to the association for paid services other than serving as inspector (§ 5110(b)). The operating rules must say how inspectors are chosen: by board appointment, by member election, or by another method (§ 5105(a)(5)).

The inspector determines who may vote and each member's voting power, rules on proxies, receives ballots, hears and decides challenges to the right to vote, counts and tabulates the votes, decides when the polls close, and reports the result (§ 5110(c)). An inspector must act "impartially, in good faith," and in a way that protects the interest of all members, and a report by the inspector is prima facie evidence of the facts it states (§ 5110(d)).

An association may adopt a rule allowing an electronic secret ballot run by the inspector, except for an election about regular or special assessments (§ 5105(i)). If it does, a member must be allowed to switch between electronic and written voting no later than 90 days before an election (§ 5105(i)(1)(A)), individual notice with voting instructions must go out 30 days before the election (§ 5105(i)(3)(A)), and an electronic vote cannot be revoked (§ 5105(i)(6)). The inspector must make sure the system authenticates each voter and keeps ballots secret and retrievable for a recount (§ 5110(c)(4)).

For director and recall elections the association must give general notice of the nomination procedure and deadline at least 30 days before any nomination deadline, with individual notice if a member requests it (§ 5115(a)). At least 30 days before ballots are distributed it must give general notice of when and where ballots are to be returned, the date, time and place of the meeting where the quorum is determined and ballots are counted, and the list of candidates (§ 5115(b)). Ballots and the election rules must reach every member at least 30 days before the election (§ 5105(h)(4)).

Ballots go out with two preaddressed envelopes, mailed or delivered not less than 30 days before the voting deadline (§ 5115(c)). The voter may not be identified on the ballot. The unsigned ballot goes inside a sealed envelope, which goes inside a second sealed envelope on which the voter signs and gives a name and address or unit identifier; the second envelope is addressed to the inspector (§ 5115(c)(1), (2)). A quorum is required only if the governing documents or other law require one, and each ballot received counts as a member present (§ 5115(d)(1)). If a required quorum is not reached, the association may call a reconvened meeting at least 20 days later at which the quorum for electing directors is 20 percent of members, unless the governing documents set a lower figure (§ 5115(b)(6), (d)(2)), with general notice at least 15 days before it (§ 5115(d)(3)).

All votes must be counted and tabulated by the inspector, or the inspector's designee, in public at a properly noticed open meeting of the board or members, and any candidate or member may watch; no one may open or review a ballot before that meeting (§ 5120(a)). Within 15 days of the election the board must give general notice of the tabulated results (§ 5120(b)). Ballots, signed envelopes and the voter list stay in the inspector's custody until the time to challenge the election under § 5145 has expired, and on a member's written request the inspector must make them available for inspection; any recount must preserve the confidentiality of the vote (§ 5125).

Association funds may not be used for campaign purposes in a board election (§ 5135(a)). Campaign purposes include expressly advocating the election or defeat of a candidate on the ballot, and, within 30 days of an election, putting a candidate's photograph or prominently featuring a candidate's name in an association or board communication, other than the ballot, ballot materials, a communication that is legally required, or one for which equal access must be given (§ 5135(b)). In other association elections, funds may not be used for campaign purposes except as needed to meet duties the law imposes (§ 5135(a)).

A member may sue the association for declaratory or equitable relief, including an injunction, within one year after the inspector notifies the board and members of the results or the cause of action accrues, whichever is later (§ 5145(a)). If the member shows by a preponderance of the evidence that the election procedures or election operating rules were not followed, the court must void the results unless the association shows its noncompliance did not affect the outcome (§ 5145(a)). A prevailing member is entitled to reasonable attorney's fees and court costs, and the court may impose a civil penalty of up to $500 for each violation, with each identical violation penalized only once if it affects every member equally (§ 5145(b)). The case may be brought in superior court or, if the demand is within its limit, small claims court (§ 5145(c)).

This page is general information, not legal advice. Read the enacted text linked below and your association's own bylaws and election operating rules, and talk to a lawyer about a specific election.