May Owners in a Condo Hold an Election if The Board Won’t?

Owners often get frustrated with their Board of Directors and want to take a vote of the members to do one thing or another. Is it legal for them to do so?

 In California law there is a that allows for such a situation but it is confusing.  Why? Because the petition process in the corporations code for calling a meeting for action is not consistent with the civil code requirements for an HOA election. And, if there is language in the governing documents that addresses it, that must be considered and if it is different than the California law, then someone has to determine which language controls the process. Obviously, experience and knowledge counts for something here.

If presented with a “valid” petition, then the Board should follow the law. It must call the meeting and also arrange for a proper election when it is appropriate to do so. Generally, the timing is this: notice must go out to owners within 20 days of the petition (date presented to the Board) about the meeting date and purpose, and the meeting must be held within 90 days of the petition. That means, if there is an election to be held, that the Board must get the ballot packages out at least 30 days before the scheduled meeting.

What is a “valid” petition? One that calls for a meeting and vote on something that is legal, and that the owners would be entitled to decide (not something the board alone is entitled to decide).

 Now, what happens if the Board ignores the timelines? California law entitles the Members to call the meeting [and ostensibly] conduct the election.

However, when this happens, chaos often follows. The members often just hold a meeting and take a vote, and then try to impose the “approved” action upon the Board.  In a perfect world, the members would follow the California election laws and meeting rules perfectly and it would be a valid vote. Even so, sometimes there is still resistance from the Board. Sometime a board just “has its head firmly buried in the sand”.  Sometimes things just get too complicated and so boards do nothing.  And that is when the tug of war begins, often involving much political unrest,wasted energy, and high legal costs.

 So bottom line, it is important to follow the law, whether you are on the board, or one of the members advocating change by member action. And it is important to get the right kind of help to make sure things are done according to law. Otherwise, both sides tend to end up spending a lot of money untangling things through litigation.

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2 Responses to May Owners in a Condo Hold an Election if The Board Won’t?
  1. Charlene Jones
    October 15, 2009 | 7:21 pm

    Thanks for the information regarding elections for the members on the Board of Directors.

    I have another issue for you to provide enlightment on solving it or what direction to take.
    It have been almost 4 weeks since I have contacted the homeowners association for repair of the outdoor automatic light at my backdoor. To date, October 15, 2009, this problem has not been addressed. Several excuses have been given: It may be the light which you can control from inside the home, so it’s your responsibility. A board member says he will be there today (e.g. 2 weeks past). The board member assured me he has come by to repair the light (e.g. 3 weeks). If it is not working by now, maybe an electrician needs to be contacted. I asked for dates for the electricians to arrive, but no answers have been given. This is a family owned homeowner’s association. My phone, and email complaints are heard by the same people whom have a history of not responding.

    Charlene

    • Beth Grimm
      October 16, 2009 | 5:01 am

      I do not give legal advice in specific situations. I will say that there are remedies in a situation where a repair is not made in a timely way. One thing an owner can do is hire an attorney to review the association regulatory documents and make a demand on the association (if indeed it is the association’s responsibility). Another possibility is to hire someone to fix the problem and then ask the Board to reimburse the costs, and if the Board refuses, file a small claims action to try and recover the money. Such an action should be preceded with a letter telling the association what you plan to do and giving it a fair opportunity to make the repair in a timely way. And the outcome in small claims will depend on whom the hearing officer believes is responsible given the documents that regulate the association and also what the cause was. Be careful though, because if an owner does repair something that is in the common area that requires architectural approval, he or she could get into trouble by changing something on the exterior – such a a light fixture.