Q: Our bylaws state that a board member must have a two-year residency, but we really need a treasurer with experience. If we find someone who meets the requirements, can we still bring them onboard? — E.G., Poway
A: An amendment to Civil Code Section 5105(c) introduced a mandatory eligibility standard – membership in the HOA – and four optional eligibility standards that can be included in bylaws or election rules.
An HOA can disqualify candidates who are behind on assessments, convicted of felonies impacting the HOA’s insurance, have a co-owner who is already a nominee or director, or have not been a member for a year.
The statute does not explicitly state that these are the only allowable optional standards, but most legal experts agree that the list is exclusive. In 2021, Civil Code Section 5103 added term limits as another permissible eligibility standard. The two-year residency requirement falls outside the listed permissible requirements, so the HOA should consult its legal counsel.
Q: I have a question that hasn’t been addressed before: what should be done with the ballots if there is no quorum? Should they remain sealed until the election challenge period expires, or can the board open them once the election is called due to lack of quorum, regardless of whether the ballot submission deadline is extended or not? — C.M., Sacramento.
A: Indeed, the Davis-Stirling Common Interest Development Act does not explicitly state what should be done with the ballots if a quorum is never achieved. However, Civil Code Section 5115 establishes that the ballots must be kept secret, and Section 5120(a) states that they cannot be opened before the counting occurs.
It can be inferred that the ballots should not be seen by anyone unless a quorum is achieved and the ballots are tabulated. Therefore, it would be logical to seal the ballots inside the double envelopes (Section 5115 (c)) and destroy them without opening them if the election fails.
Q: Can two individuals living in the same house serve on two different boards, such as one on the architectural committee and the other on the HOA board? I was told that these are separate boards and both individuals can hold positions on each of them. — B.C., Cherry Valley.
A: One of the optional eligibility standards in Civil Code Section 5105 is that co-owners may be prohibited from being board candidates or directors at the same time. However, it is generally acceptable for co-owners to hold different volunteer roles within the HOA.
Kelly G. Richardson, Esq. is a Partner at Richardson Ober LLP, a California law firm renowned for its community association advice. He is also a Fellow of the College of Community Association Lawyers. Submit your column questions to [email protected].
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