Can a Condo Association or HOA Vote By Email?

I get many emails where owners tell me about all sorts of voting shenanigans by homeowner associations and condo associations. Some are asking if voting by email is legal.

In California, it is not legal to vote via email, at least as to elections for amendments to the governing documents, to approve special assessments, or for elections or recall of board members – any of these that require owner approval. That is because there are strict election requirements in Civil Code Section 1363.05 which involve a ballot package that is mailed or distributed to owners allowing them to vote in secret. The package consists of a ballot with no signature blank, a blank envelope to stick the ballot in, and an outside envelope addressed to the inspector of election that has a return address and signature blank for owner to sign. None of this can be accomplished via email.

As to board voting, the same applies. Boards cannot vote by email because they are supposed to consider actions at an open board meeting, except those actions that are subject to approval or consideration in executive session. Civil Code Section 1363.05 covers these topics. The one exception that probably is legal is if there is an emergency item that cannot wait until a meeting can be called. If all board members agree via email or telephone and are willing to sign a Unanimous consent form to action – then many attorneys approve that as a legal action – the Unanimous Consent must be acknowledged in the minutes of the next Board meeting. It is not recommended as a consistent form of action, but sometimes things prevent the calling of a meeting. Many boards do not know they can call an emergency teleconference meeting to consider any emergency needs without notice to members and the meeting is valid so long as they can hear each other and talk to each other during the meeting/conference call.

And then, of course, there are the many HOAs and Condo Associations that do not even know about the law, or that choose to ignore it because of the complicated nature of things. This commonly happens with very small associations. I mean, when everyone comes to meetings and no one wants to vote in secret, who cares? Who would challenge those actions? Maybe the ONE OWNER who likes to stir the pot?

 

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