Question: Our Homeowners Association (HOA) held its last in-person meeting in August 2022, which was the annual meeting. Since then, all the monthly meetings have been conducted virtually. Are we in violation of the Open Meeting Act? — S.I., San Diego.
Question: Our HOA is a large complex, and it has been in violation for quite some time as it continues to hold only virtual meetings. I have raised this issue with them before, and they always mention concerns about COVID among their members. Additionally, during these virtual meetings, most of the board members hide behind chosen profile pictures. Can you inform me about the code violation our board seems to overlook? Also, what are your thoughts on the board members not showing their faces during virtual meetings? — G.L., Pacific Beach.
Answer: Yes, both of your HOAs are indeed violating the Civil Code 4090 and the Open Meeting Act. In 2020, certain counties temporarily prohibited gatherings of more than five unrelated individuals indoors. This presented HOAs with a difficult decision – should they defy county orders or the Davis-Stirling Act?
Most HOAs chose to comply with the Health Department’s orders and conducted exclusively virtual meetings for a period of time. Although most, if not all, counties lifted the meeting bans before the end of 2020, many HOAs continue to violate the requirement stated in Civil Code 4090(b), which mandates the announcement of a physical location for attendees to personally participate in the meeting.
The situation was further complicated by the emergency legislation in 2021, which introduced a new Civil Code Section 5450 allowing HOAs to hold purely virtual meetings during declared emergencies that rendered in-person meetings unsafe or impossible. This statute was incorporated into the Davis-Stirling Act in September 2021, nearly a year after the last-known county ban on indoor meetings expired.
However, despite the State of Emergency for Covid-19, many HOAs continued to conduct purely virtual meetings without fulfilling the physical location requirement specified in Civil Code 4090(b). That excuse was no longer valid as of February 28, 2023, when the Governor officially terminated the Covid-19 State of Emergency.
In summary, HOAs can conduct their meetings via telephone or virtual platforms as long as they announce a physical location where attendees can be present and observe the meeting.
There will likely be changes next year with the introduction of Assembly Bill 648, which, if passed, will add a new Civil Code Section 4926 to the Open Meeting Act. This amendment will permit board or membership meetings to be held purely virtually. The bill seems to be uncontroversial, having received unanimous approval in the Assembly with no opposing votes. It is currently in the final stages of Senate consideration. Consequently, it is safe to assume that California HOAs will be able to conduct virtual board or membership meetings from 2024 onwards.
However, until the new law is implemented, California HOAs can carry out live meetings or “hybrid” virtual meetings with a designated physical location for those who are unable or unwilling to participate virtually. Purely virtual meetings are currently prohibited.
It is time for HOAs to establish regulations concerning the virtual aspect of their meetings.
Kelly G. Richardson, Esq. is a respected member of the College of Community Association Lawyers and a Partner at Richardson Ober LLP, a well-known California law firm that specializes in community association advice. Please direct column questions to [email protected].
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