Q: I’m concerned about my board no longer publishing minutes of their open meetings. I’ve asked for minutes for six months now, and the board doesn’t even bother replying to my queries. Our CC&Rs do not specifically mandate the publication of meetings, but doesn’t state law take precedence over CC&Rs? I was president of our board for many years, and during my administration, we routinely sent minutes to all owners. — S.H., Oakland
A: Civil Code Section 4950, part of the Open Meeting Act, requires that draft minutes be available to members within 30 days of the open board meeting. Furthermore, Civil Code Section 5210(b)(1) provides that any approved minutes for the current fiscal year must be produced to a requesting member within 10 business days of the request.
Associations that are operating properly should have minutes readily available to their members, or it could create member frustration. How does a board approve minutes of the last meeting if those are not provided to the board? Worse yet, it could erode trust in that board, as members begin to wonder why they can’t find out what their board is doing.
Getting proper minutes out on a timely basis should be a high priority for every HOA, regardless of the size.
Q: Our HOA held an annual meeting in 2019. No quorum, so all board members were given a one-year term. They failed to hold an annual meeting in 2020. Their term expired a year ago. No board. What now? — L.K., Cypress
A: Under Corporations Code Section 7220(b), directors continue to serve until they resign, or are removed by membership vote or a successor is elected. HOAs that struggle to attain quorum often have trouble conducting a membership meeting to elect directors.
However, the HOA is not off the hook and must try each year to hold an annual meeting, if the bylaws require that under Corporations Code Section 7510(b). So, unless they all resigned, the HOA should still have a board. That board also should be trying to set an annual meeting.
Q: Our HOA is in the process of hiring a new management company. One of the companies interviewed stated that an association can no longer have two people who have a joint tenancy to be elected on a board of directors after a nomination. Davis Stirling states that joint tenancy (ie., husband and wife) can both be on a board if elected. Can you please clarify for me which is correct and should be followed – Senate Bill 323 or Davis Stirling? — B.A., Carpinteria
A: One of the optional eligibility requirements, which HOAs may have in bylaws or election rules, is that candidates may be disqualified if they would be serving on the board simultaneously with another owner of the same property (Civil Code Section 5105(c)(2)). This optional eligibility factor was included in 2019’s Senate Bill 323, which added this to the Civil Code in the new 5105(c)(2).
Here are the two things to remember: First, the disqualification exists only if the HOA has adopted it in its bylaws or rules. Second: that the test is not marital status but co-ownership.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober DeNichilo LLP, a law firm known for community association advice. Submit questions to Kelly@rodllp.com.
Source: Orange County Register
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