HOA Law Blog
The 2009 Condominium Bluebook by Branden Bickel and D. Andrew Sirkin has been published and will soon be available to the general public. The Bluebook is a useful tool for California homeowner associations, providing quick reference to state statutes and court cases, as well as useful forms for required notices and other documents.
This year’s Bluebook contains a form (at Chapter 17) entitled “Model Election Rules” which we do not believe is suitable for most associations to simply reproduce and adopt as their election rules as required by Civil Code Section 1363.03. In fact, we doubt that any form election rules could possibly be created to suit all California homeowner associations because election rules are subject to an association’s CC&Rs and Bylaws. The provisions in CC&Rs and Bylaws applicable to the election rules vary widely from one association to the next. Following are just a few examples of why we believe the Bluebook’s form election rules are erroneous:
Section 1.3 – This section suggests that an election is not required if, after the close of nominations, the number of people nominated for the Board is not more than the number of Directors to be elected, and those nominated may simply be declared elected Directors, also known as “election by acclamation.” We believe this to be in direct conflict with Civil Code Section 1363.03, which requires secret ballot votes for all elections of Directors and contains no such provision for election by acclamation. We wish it did, but it does not!
Section 3.1 – This section sets forth candidate qualifications for the Board and simply states that a candidate shall be an owner of a unit or a resident. This will likely be in direct conflict with many associations’ Bylaws and/or CC&Rs that provide specific qualification criteria for candidates, such as the specific requirement of ownership as opposed to residency.
Section 4.1 – This section provides that “if more than one vote is cast on behalf of a single unit, then all such votes shall be disregarded.” We believe this to be in direct conflict with Civil Code Section 1363.03(f), which provides that secret ballots are irrevocable. If more than one secret ballot for the same unit is cast, the first secret ballot should count and the second should be invalidated.
Again, this is not an exhaustive evaluation, and we have other issues with the Bluebook’s form election rules not identified above. Also, remember that California common interest developments, which include homeowner associations, have been required by Civil Code Section 1363.03 to adopt election rules since July 2006. So, if your association still has not adopted election rules, feel free to contact our firm for information on our services and our affordable flat rate. We will examine your CC&Rs and Bylaws and ensure that your Association’s election rules conform to those documents as well as state statute.