Q: If our offsite owners use a management company to run their units and use the management company as their preferred address, how do we get them to vote for restatement of governing documents when we need a super majority? — C.L. Pasadena.
A: Many older CC&Rs have a completely unrealistic requirement that 75% of all owners must approve amendments. At the same time, California homeowners often are less motivated to vote on such a matter, because CC&Rs are often complicated documents with parts that are quite technical. So, many homeowners treat amendment votes just like the way they handle public ballot propositions – if they didn’t have time to read all the material, or if they are not able to completely understand it, they “abstain” by not turning in a ballot. The problem is that when the HOA must have 75% of all members voting “yes,” an abstention functionally is the same as a “no” vote.
Just sending out reminders isn’t usually enough. HOAs should go the extra mile in trying to give members more opportunities to get information and understanding regarding major CC&R or bylaw amendments – such as special “town hall” meetings reviewing the proposed amendments. Even then, it’s a rare HOA that will have more than 25% of the membership attend such a meeting. The problem is compounded when many members rent their homes and do not live at the HOA.
I have found over the years that the best way to get out the vote is to have members contact their fellow members, and explain the need for the amendments and ask the members to support the amendments.
Of course, if the HOA can get at least a majority of all members (51%) to vote for the amendment, but can’t get meet the “supermajority” requirement (typically 67% or 75%), Civil Code Section 4275 allows for a court petition to be filed asking the Superior Court to order the amendment deemed approved. That, in my view is a last resort. This solution can involve thousands of dollars in legal fees and still more mailing costs, but it is a viable “Plan B” for the HOA that really needs to amend its documents but cannot meet the supermajority vote requirement.
Q: By California law, are non-titled spouses prohibited, in general, from serving on an HOA? — W.C., San Diego.
A: In 2020, the HOA board eligibility statute was revised to make HOA membership mandatory as a requirement for board service. In years past, I would see a spouse occasionally argue that they actually were an owner because of the community property laws, now Civil Code Section 5105(b). That code clearly requires ownership: “An association shall disqualify a person from a nomination as a candidate for not being a member of the association at the time of the nomination…A director who ceases to be a member shall be disqualified from continuing to serve as a director.” Civil Code Section 4160 defines “member” as “owner of a separate interest.” Many bylaws or CC&Rs say that HOA owners or members are RECORD owners, meaning that a deed is on file in the county recorder office documenting that the person is an owner.
Richardson is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com.