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June 11, 2007
More Elections Rules Questions
Here are a couple of new questions related to California election rules:
Question: If a new HOA has election rules and procedures in their By-Laws, do they need to adopt separate election rules?
Answer: Civil Code Section 1363.03 says that California HOAs under Davis Stirling "shall adopt election rules." There are specific things that need to be in them. Even if an association is new, and the governing documents have the "right stuff" in them to satisfy the statute, the information should still be excerpted in a document called Election Rules. That is the only way a Board can "adopt" something called Election Rules. If they are excerpted from the Bylaws, the Board does not need to circulate them to the owners prior to approval by the Board.
Question: Our Association rules were circulated, signed and became effective last July -do they need to be revised?
Answer: They probably do, but only a review would tell. In September of 2006 there were changes in the law that gave more emphasis to document provisions related to meetings, proxies, nominations, etc. Prior to these changes, many attorneys believed the whole process could be set up to be accomplished by mail. However, after the changes in the law, many attorneys (including me) felt that if the documents require an annual meeting, nominations from the floor, or allow proxies, that the rules should be changed to incorporate these options in a meaningful way. Many documents allow for written mailed ballots on many subjects, but exclude elections for directors. It is sufficient to say that if your election rules were written prior to September 22, 2007, or are "boilerplate" without regard to the governing documents, your association probably needs a review and some changes to the rules.
Many association boards and managers feel this is a great imposition. I just have to say, "Don't take your frustration out on the attorneys who have been trying to assist with this difficult legislation; give your local legislator a call if you need to vent, and ask if they voted for the complicated confusing legislation.
Posted by Beth Grimm at June 11, 2007 8:54 PM