Hanh T. Pham, Esq.
Even though HOA election laws were last updated in January 2022, many are still understandably confused by the complicated statutory procedure required to elect directors without balloting when a board of directors election is uncontested (the number of candidates does not exceed the number of open seats on the board). An HOA can save considerable time and expense (mailing secret ballot packages to the members, hiring an inspector of elections) by following the steps outlined below if an election by acclamation is a possibility.
All associations, regardless of size, can now use the election by acclamation procedures set forth in California Civil Code section 5103 even if the association’s CC&Rs, Bylaws, and election rules are silent or conflict with the statute. The governing documents do not need to be amended to allow election by acclamation, but the election rules must have been amended to comply with changes in the law effective January 1, 2020. If an association did not amend its election rules after October 2019, it needs to do so before conducting any election in order to ensure the SB 323 requirements are incorporated. Failure to do so may subject any director election, special assessment vote, or amendment of governing documents to challenge.
In addition to updated election rules, the following conditions must be satisfied as set forth in California Civil Code section 5103:
• Regular Election in Last Three Years: A regular (secret ballot) election must have been held in the last three (3) years.
• 90-day Initial Notice: At least 90 days before the deadline for submitting nominations, members must be provided by individual notice (i.e., first-class mail or email if consent has been provided) a notice that includes: (1) the number of open board positions to be filled at the election; (2) the deadline for submitting nominations; (3) the manner in which nominations can be submitted; (4) statement informing members of the possibility of an election by acclamation.
• Reminder Notice: A reminder notice must be provided between seven (7) and 30 days before the nomination deadline which includes: (1) the same information in the 90-day initial notice; (2) a list of the qualified candidates as of the date of the reminder notice; (3) statement reminding members of the possibility of an election by acclamation.
• Acknowledgment of Receipt: Within seven (7) business days of receiving a nomination, the association must acknowledge (by written or electronic communication): (1) receipt of the nomination and (2) must advise the nominee whether the nominee is a qualified candidate. If disqualified, the association must state the basis for the disqualification and the internal dispute resolution procedure by which the nominee may appeal the disqualification.
• Open Board Meeting Held to Declare Election by Acclamation: At least four (4) days before the meeting, the association must provide a meeting agenda to members which includes the names of each qualified candidate to be seated by acclamation. At the meeting, the board votes to elect those candidates by acclamation. The meeting minutes should reflect that the directors were elected by acclamation. It is also a good idea to identify the length of the newly-elected directors’ terms of office in the minutes.
Plan ahead if you think election by acclamation may be a possibility. In order to take advantage of this time- and money-saving option, members must be notified about the potential for election by acclamation well before nominations are received. This information must be provided in the initial and reminder notices, beginning at least 90 days before nominations are due.
This information is general in nature. It is not a substitute for qualified legal advice. Contact us at (925) 926-1200 for legal advice specific to your association.