The HOA Ballot is Wrong, Is the Election Void?

I recently sent out an E-newsletter on elections to help boards get it right at the next election. Sometimes owners read the newsletters and think they are all geared toward the boards. So this month, I’m doing 2 E- newsletters and the second one is just to answer owners questions. It should come out next week. Here is one of them to get you warmed up. By the way, to get the E–newsletters you can sign up on my website at www.californiacondoguru.com. It’s a free publication and if you don’t want to be on the list, you can read these newsletters afterwards because they are archived on the website. You can also submit questions to me for blogs through the email link on the website and I will answer them when I can. If the questions are too specific and seek legal advice for a particular person or association, I will instead reply with information about telephone consultations which I provide for owners, board members, managers, and people affiliated with homeowner associations all over the state of California. I have a special one hour minimum rate for telephone consultations and people are generally amazed at how much territory we can cover in an hour to help the situation.

Here is the question of the day:

“I am a condominium owner and we are in the process of electing a new Board.  The ballots were sent out along with additional documentation.  In the documentation, it clearly states we have a 3 member Board.  However, on the actual ballot that lists the names of those running to become a Board Member, it gives the homeowner 5 votes.

If the documentation is not changed, will this cause a legal issue?”

First let me say that while anything that happens might not be right, it doesn’t create a legal issue unless someone raises a legal issue. In other words, a lot of errors go unattended and probably even more go unnoticed. Unless the problem is brought to the attention of a board or an owner, it is likely to fall into one of those categories and be lost in the wind. In any election, if someone discovers improprieties and doesn’t raise them at the beginning of the process, that particular failure to act good jeopardize any chance of challenging the election. When judges are scrutinizing elections in HOA that are challenged, it is up to them to decide whether the election should be voided are not, and the considerations a judge would give are things like how egregious is the problem? Would the outcome likely have been different if there had been no impropriety or mistake? Who knew about the problem ahead of time, and what did they do to try and remedy the situation? Was there evidence of bias or an attempt to sway the owners through calculated mistakes or misinformation?

In the particular scenario above, in a perfect world, the person who discovered the error would notify the Board immediately and the Board would find a legal / practical way to set things straight.

California law does provide that homeowners can challenge homeowner Association elections but it doesn’t tell you what I have just said, i.e., that an election is not automatically void when an impropriety is discovered. A challenge of some kind must occur. That can be accomplished through a letter to the board demanding retraction of the election and a do over in some cases. In others, it requires filing some kind of a court action because a Board is not responsive. Elections can be reversed, but it takes someone to do it.

In the above scenario, where the literature with or on the ballot seems obviously incorrect I would suggest getting on the record a written letter to the board either hand-delivered or through some trackable mail process immediately upon discovery. Words whether given to a director out for a walk, in a homeowner forum at a board meeting, or over the phone to a busy manager often get lost in the wind. Any claims become he said, she said arguments. This is advice I give to many individuals who contact me and tell me about the many times the last year or two they complained about something. People often think they are being heard when they shout only to find out they’re really being ignored because they shout. So before you even sit down to write out the letter, accept this advice: don’t fly off the handle. Disputes or differences of opinion are often not resolved when emotions are at their highest level.

When such a matter is that described above is brought to me, I will ask the person who is inquiring to send me the documentation along with the articles of incorporation, the bylaws, and the CC&Rs for the Association. The person often protests. First of all, they would prefer free off-the-cuff legal advice which some attorneys give on the Internet. Second, they think this is a hassle and they should not have to pay someone to look at their documents. However, my experience over the years is that the documents have information in them that determines whether the person who writes to me is right or wrong in their analysis of the situation. For example, I have seen a number of situations over the years where the articles of incorporation provide for a certain number of directors but the bylaws or CC&Rs provide a conflicting number. Sometimes this occurs because when an HOA pays an attorney to update and restate or make a change to any of the governing documents or tries to do it themselves and the drafter of the changes fails to consider that a conflict may be occur if he or she doesn’t look at the other documents. So, through the process of poor drafting at the original development, or intervening oversights, conflicts are created. It is possible that this was what lead to the problem in the above Association. If that were the case, the board should certainly look at taking action to resolve the conflict in the documents, but is also left with the determination as to whether to delay the election or not for a new board and in some cases that makes less sense than moving forward with the election.

It is these kinds of things that do not occur to owners. Often, things seem quite obviously wrong when they really are just problematic situations that need a solution. But again, is important to understand that if you see or perceive that a problem exists, you bring it to the attention of the people who should be addressing it at the earliest possibility to avoid the problem later on that it is too late. It sometimes is harder to rollback time and correct an error than to simply move forward. If you are in a situation holding what you believe is a “smoking gun”, and believe me I have had owners use this term, I suggest you simply get on with it and raise the issue. Perry Mason was a TV drama, and not a reality show. The more likely the drama to occur in real life is that the person who discovers the error gets really angry when he or she finds out it is too late to do something about a mistake or impropriety that occurred, and thereafter becomes the problem by shouting about it.

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