HOA Homefront: Can we use acclamation, voting boxes and board-signed envelopes?

Q: How many consecutive elections by acclamation? Our HOA board with management approval held a 3rd consecutive acclimation year. What does Civil Code allow? When must an election be held even though open seats same as those applying? Thank you for your most helpful informative newsletters. — L.B., Martinez

A: Elections by acclamation are elections that occur without opening and counting ballots. The option of election by acclamation entered the Davis-Stirling Act in 2022, with the addition of Civil Code Section 5103.

HOA elections before 2022 that purported to be “elections by acclamation” are erroneous. Another common mistake is the failure to observe Section 5103(b)’s extensive pre-election notifications, which means that boards must begin planning their HOA’s elections about six months ahead to preserve the option of having an election by acclamation if there are not more candidates than open seats.

Per Civil Code Sections 5100(a)(2) and 5103(a), HOAs must conduct a regular election at least once every four years. So, the maximum consecutive elections by acclamation are three.

Also, the statute says a regular election must be “conducted” at least once every four years, so a failed election for lack of quorum or an election that was skipped for some reason would not count toward the “once in four years” requirement. L.B., I hope this information helps your HOA.

Q: Can our HOA board sign the envelope for the properties that we foreclosed on to meet quorum? — D.E., Corning.

A: If the HOA has taken ownership of properties within the HOA, those are still memberships, barring something stating otherwise in the bylaws. Therefore, the HOA should be able to count those memberships toward quorum or vote those memberships.

The board should decide in an open meeting how it will cast those ballots, or if it will just note the membership as attending but not voting (“quorum-only”). If the election is for filling board seats, it may be best to just count the memberships as quorum-only, as it is best that the board as a group not officially endorse or oppose candidates.

Also, remember that as of 2024 after a director election fails due to lack of attain quorum, Civil Code Section 5115(d) allows a second attempt to occur with a quorum of 20%.

Q: I look forward to your column each week.  HOA election is nearing for our association, so is it “legal” for the association to establish “voting drop boxes” in addition to receiving ballots by USPS? — B.L., Oceanside

A: Civil Code Section 5115(c) addresses how ballots are to be returned. Ballots are to be in an unsigned inner envelope, then placed inside a second bearing the member’s signature, name, and address. Per subpart 2, the ballot “may be mailed or delivered by hand to a location specified by the inspector or inspectors of elections.”

Section 5125 requires that the sealed ballots must at all times be in the custody of the inspector(s) or at a location designated by the inspector(s)until after votes are counted. So, yes, the Inspector could designate locations where sealed ballot envelopes could be dropped off, and the election rules should recite that to avoid future disputes or confusion.

Kelly G. Richardson CCAL 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. Send column questions to Kelly@roattorneys.com.