Real Estate & Property Law

HOA / CONDO - Questions On Soliciting Nominees and Filling Positions

Here are some questions I recently received about soliciting nominees, qualifications, and filling positions:

Soliciting Candidates

"Is it written in the law or is it simply a recommendation, that a written solicitation be mailed to the owners at least 30-60 days prior to sending out the ballots?"

Answer: There is nothing in the law that requires sending out a solicitation letter to the members; however, my position would be that it is in line with having a fair election. Some HOAs or Condo Associations post the information on the Association website - however, it may not be likely that all members will frequent the site and find this information. Since the Board cannot prevent a "qualified" nominee from running for the board I believe sending the solicitation helps prevent a claim related to fairness of an election. If a board conducts a "tight-fisted" election trying to shut qualified candidates out, it could backfire.

What candidates are "qualified"?

Answer: This is "document specific" for each HOA or Condo Association. That means what the association governing documents (Bylaws, CC&Rs, Articles of Inc. etc.) say is critical. For instance, board members may have to be "in good standing", be on title, have taken training classes, etc.

"If there are three positions open for election and only two incumbents/nominees are running, how is the third position filled? Is the vacancy filled by nomination of elected board w/majority approval or does this position have to be filled through another election process?"

Answer: There may be language in the governing documents or election rules that pertains. If not, then it would be up to the board (by majority approval) to appoint someone to fill the third position, and that person would serve for the full term that was subject to election. However, check the documents because some say that positions must be filled by election of the members, in which case the board's job will be to pull someone forward (kicking and screaming perhaps??) and get their name on the ballot, or wait until there is a willing volunteer and then hold a special membership election if it is not the usual election time, or schedule an election, and then declare the willing volunteer to fill the position by acclamation.

All of these ideas about filling positions with or without going through with an actual election are dicey and controversial, so if you are contemplating any, I suggest getting good legal advice and an opinion letter for the file. The law is less clear than one would like, and so there are fights ... yes, heated fights ... over what it means. Don't wait until the fire is raging as it is much more expensive to put out than to prevent.

One great preventive tool is to gather more information and educate yoursule about elections and the processes. You get can an incredible amount of information by visiting the website

(1) For free (see the link to "Elections After SB 61") or
(2) Through a series of very low cost Primers on Elections, including a forms Primer to help Condo and HOA boards set up proper elections. The website is http://www.californiacondoguru.com and the links are evident - look for the link to Publications for the scoop on all available Primers including the Elections Primers.

Full post as published by California Condo & HOA Law on June 23, 2009 (boomark / email).