A landmark change has occurred in California’s civil code that affects how homeowners associations (HOAs) can govern via email. An appellate court ruling has overturned a long-standing piece of civil code, which previously discouraged HOA boards from conducting email discussions due to concerns about violating the Open Meeting Act.
The Open Meeting Act is part of the Davis-Stirling Act and includes transparency requirements for HOA governance.
Prior to this ruling, Civil Code Section 4910 specifically prohibited HOA boards from taking action or conducting meetings via email, except in emergencies. This restriction made it seem like board email discussions were also barred. However, much of this has now changed.
In a ruling on August 25, 2023, an appellate court in San Diego County upheld a trial court’s decision in favor of the Alta Del Mar Coastal Collection Community Association. The association was sued by two property owners who claimed that the board’s use of emails for conducting business violated the Open Meeting Act. The court determined that exchanging emails does not fall within the definition of a board meeting as outlined in Civil Code 4090. According to the court, a board meeting involves in-person or teleconference gatherings, and the directors were not physically “congregating” when they sent the emails.
Furthermore, the court ruled that discussing HOA business via email does not violate the prohibition under Civil Code 4910 on taking action outside of board meetings. The court made a distinction between discussing and voting, stating that voting constitutes action, but discussions do not.
Despite this ruling, it is advisable for HOA boards and managers to refrain from email deliberations for several reasons.
Firstly, this case introduces a new interpretation of the term “board meeting,” and there is a possibility that the state Supreme Court could address the issue and potentially undermine or overrule the appellate court’s decision.
Secondly, email deliberations are not subject to member review, and they are not included in the documents that homeowners can request to review. This lack of transparency weakens the board’s credibility, as it becomes easier for discussions on upcoming agendas to occur prematurely. Homeowners will have more trust in the board if they know that discussions are reserved for official meetings.
Thirdly, emails can be used as evidence in legal proceedings. Unlike oral remarks, emails are not privileged unless involving legal counsel. They can be compelled to be disclosed through a subpoena or litigation disclosure demand. Directors must exercise caution in their written comments, considering the potential consequences if a judge or jury were to read the emails.
Lastly, directors may not want to be constantly on duty. Strict compliance with the Open Meeting Act helps protect directors’ personal time. Many client directors express feeling intimidated or harassed by colleagues bombarding them with email suggestions, ideas, and opinions at all hours. The HOA should focus on improving the efficiency of its meetings and resist the temptation to avoid open discussions.
This new judicial interpretation should not be seen as a license to conduct extensive email discussions and defer formal decision-making to board meetings. It is advisable to use email primarily for relaying information rather than expressing opinions, reserving in-depth discussions for board meetings.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and a Partner at Richardson Ober LLP, a reputable California law firm specializing in community association advice. If you have any questions related to this column, please email [email protected].
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