HOA Homefront: Can we elect directors by acclamation?

Q: Our HOA has board elections coming up soon. We have two vacancies and two candidates who have formally applied to run. My question is, why can’t we just declare them the winners by acclamation rather than going to the expense of an election? Why is the board insisting on a formal election? Must we always do it this way? It seems ridiculous to me. — J.M., San Diego

A: Civil Code Section 5103 took effect in 2022, allowing a board to declare candidates elected by acclamation if the requirements of that statute are all met. However, one of the requirements is that the HOA personally send notices to all members at least 60 days before nominations open, which now makes board elections at least a five-month-long process.

Many HOAs missed the ability to pursue acclamation last year because of that new timing requirement. Hopefully, your HOA will update its election procedures and plan far enough ahead to have acclamation as an option in future years.

Q: Do the following rules apply only to elections where election by acclamation is used? An initial notice at least 90 days before the deadline for submitting nominations, and a reminder notice between seven and 30 days before the deadline for submitting nominations. — L.M., San Diego

A: The new Civil Code Section 5103’s most significant requirement is the requirement of two individual notices be sent to all members – one at least 90 days before nominations close (usually 60 days before the opening of nominations) and the second notice between seven and 30 days before nominations close.

If the notices don’t go out on time, the election can still proceed if all other requirements were met, but acclamation would not be an option for that HOA if the candidates did not exceed the number of open seats.

HOAs may want to update their election rules to add this timeline to their procedures. As a practical matter, boards and managers should start scheduling the various election dates about six months before the election date to make sure all the deadlines are met.

Q: In 2020, my HOA changed its election rules to permit the election of directors by acclamation. I believe it was done in line with SB 323, but SB 323 says that acclamation is available only to HOAs with at least 6,000 units. My HOA has nowhere near that number.

Was it correct for the board to change election rules in 2020 to allow acclamation? The board elected several directors in 2021 by acclamation. Is that valid? AB 502 removed the 6,000-unit requirement, but it became law only in 2022. It appears that the HOA changed its election rules (to permit acclamation) several months before the election by acclamation became the law in California. —  N.P., Martinez.

A: For several years the option of declaring directors elected by acclamation was available only to HOAs of 6,000 or more homes until the new Civil Code 5103 became law in 2022. If your HOA purported to declare candidates elected by acclamation before 2022, and your HOA did not have at least 6,000 members, the board should consult with counsel as soon as possible to determine the best way to proceed.

Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Senior Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com.

Source: Orange County Register