4 Day Notice Requirement For HOA Board Meetings

Under California law, Civil Code Section 1363.05, homeowners in common interest developments are entitled to 4 day’s notice of open board meetings (not including executive sessions or emergency meetings), and at least 2 days’ notice of executive session meetings. Agendas should be provided for the open meetings and the executive sessions within the same timelines (although the most that should be included for executive session notices is the purpose under the law that qualifies the executive session).

The law says:

“1363.05(f) Unless the bylaws provide for a longer period of notice, members shall be given notice of the time and place of a meeting … except for an emergency meeting or a meeting that will be held solely in executive session, at least four days prior to the meeting. Except for an emergency meeting, members shall be given notice of the time and place of a meeting that will be held solely in executive session at least two days prior to the meeting. Notice shall be given by posting the notice in a prominent place or places within the common area and by mail to any owner who had requested notification of board meetings by mail, at the address requested by the owner. Notice may also be given, by mail or delivery of the notice to each unit in the development or by newsletter or similar means of communication, or, with the consent of the member, by electronic means. The notice shall contain the agenda for the meeting.”

As you can see, there are various ways to provide adequate notice. In a more recent bill, a provision was added that requires the board to provide notice by mail to any owner who requests it, to the address given by the owner for the notice. This was prompted by Owners who were claiming that boards were being secretive about meetings, and owners that lived off premises were unable to get notices of the board meetings when the Board posted them in the common area.

Still, abuses or inattention to details in the law continue. Here is a note from a reader:

“Our HOA held a meeting last week, and everyone in the community received the agenda in the mail on the same day as the meeting. Since most of us work,
that means we got the notice when we came home, after the meeting had
already started.”

This is not the first time I have heard such a thing.

The reader’s questions continue: “Are the motions voted on in this meeting legal? How do we address this with any entities that oversee the application of this law?”

The answer is that failure to give proper notice of a meeting does not by law invalidate the actions taken. The remedy for the failure is stated by law, however. Civil Code Section 1363.09 says:

1363.09. REMEDIES.  (Operative July 1, 2006.)

(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by an association of which he or she is a member, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 4 (commencing with Section 1357.100) of Chapter 2, were not followed, a court may void any results of the election.

(b) A member who prevails in a civil action to enforce his or her rights pursuant to this article shall be entitled to reasonable attorney’s fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.”

Owners can go to small claims court and seek a $500 penalty for failure to provide notice and an agenda with at least 4 days’ notice – it is a violation of the statute and the complainant should not have to prove any damages. If a penalty is considered, it would likely be assessed against the association because of the wording of the statute – It hardly seems the right kind of remedy but … what more can I say? If an owner could show individual board members knew about the law and ignored it, maybe the hearing officer, who can choose equitable remedies, would fine the board members.

However, while some owners have had some success in getting some accountability, I have heard in at least one case the hearing officer did not give fines for any of several violations, stating that the board members are volunteers and shouldn’t be penalized for technical violations of the law. Not a good result for the owner who sought help in the only way that made sense. Perhaps the hearing officer warned the board though. Boards should certainly make an effort to follow the law, especially once they know about it!

The intent of the law is so that owners know when meetings are a few days ahead, and can attend. The legislators wanted owners to know ahead of time what will be discussed – hence the addition of the Agenda requirement in recent years – so they can decide if they want to attend. Some attorneys argue about whether Civil Code Section 1363.09 applies to the meetings requirements since it was written into law at the same time as the elections requirements. The reorganized Davis Stirling Act taking effect January 1, 2014 will clarify penalties for violations of the meetings’ requirements. Still, it takes a judge or authorized hearing officer to implement the law if board violates it. I have to think that if a board makes it a habit of violating the law and an owner seeks recourse, there will be some kind of hand slap if not some more serious remedy. I think in order to get the right kind of attention, there would have to be some pattern or belligerence illustrated rather than just a board trying hard to follow the rules, once educated about them.

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