Court Holds That Associations Must Provide Equal Access To Association Media and Common Area For Members To Advocate Their Positions As Part Of The Balloting Process

By Cyrus Koochek, Esq., Associate Attorney, SwedelsonGottlieb, Community Association Attorneys

Every board of directors for every condo or homeowners association has been there; the board wants to do something that it should be “obvious” that the association needs, such as a needed capital improvement to the common area, or an important amendment to the CC&Rs, but cannot muster up the required amount of homeowner votes to approve this “obvious” need. Whether this failure of approval results from the homeowners’ true opposition to the proposed change or whether it stems from owner apathy, a recent California court decision has made it clear that when the board advocates for votes for the approval of whatever is on the ballot, the board is a candidate, and as such, must provide equal access to media and the common area for others to advocate their positions on the ballot measure.

On June 26, 2013, the California Court of Appeal (4th Appellate District) filed its decision in Wittenberg v. Beachwalk Homeowners Association holding that the board of directors of the Beachwalk Homeowners Association violated California Civil Code Sections 1363.03(a)(1) and 1363.03(a)(2), which state that association media (website, newsletters, etc.) and common areas (areas where notices are posted, etc.), respectively, must be equally accessible to all members during a campaign as long as any one member advocating a point of view is provided access to such media or common areas. Based on the court’s interpretation of these Civil Code sections, all boards must be extremely mindful of their actions during an election or voting process.

Frankly, we at SwedelsonGottlieb did not need the Court to tell us these things, but apparently there were some attorneys and board members out there that did not see that when they were advocating a position as part of a balloting process that they needed to give equal access to those that were opposed to the board’s position. Now the law is clear on this issue. Follow this link to read more about this new Court of Appeal decision and how it may impact your California condo, planned development or stock cooperative community association.