Question: I want to be elected to serve on my homeowners association's board but my board won't let me nominate myself. They dominate election advertising, edit and control candidate statements and qualifications, limit access to the common areas during campaigning, and control the election in such a way that it favors incumbent directors. What's the law, and what can I do about this?
Answer: California law is clear, and association compliance is mandatory, not voluntary. Effective Jan. 1, 2010, Civil Code Section 1363.03 states that an association shall adopt rules, in accordance with the procedures prescribed in the Davis Stirling Act, commencing with Civil Code Section 1357.100 that do all of the following:
•Ensure that if any candidate is provided access to association media, newsletters or websites during a campaign, equal access shall be provided to all candidates, including those not endorsed by the board. The association shall not edit any content from these communications, but may include a statement specifying that the candidate, and not the association, is responsible for that content.
•Ensure access to the common area meeting space — if any exists — during a campaign, at no cost to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board.
•Specify the qualifications for candidates for the board of directors and any other elected position, and procedures for the nomination of candidates, consistent with the governing documents. A nomination or election procedure shall not be deemed reasonable if it disallows any member of the association from nominating him or herself for election to the board of directors.
•Specify the qualifications for voting; the authenticity, validity and effect of proxies, and the voting period for elections, including the times at which polls will open and close, consistent with the governing documents.
•Specify a method of selecting independent third parties as inspector, or inspectors, of election utilizing either (a) appointment of the inspector or inspectors by the board, (b) election of the inspector or inspectors by the members of the association or (c) any other method for selecting the inspector or inspectors.
Begin by determining what your governing documents state regarding elections and compare that to the statute. Those documents should include provisions concerning the conduct of elections. Corporations Code Section 7616 provides that a member may bring an action challenging any election. The court must set a hearing within five days and "may determine the person entitled to the office of director or may order a new election to be held or appointment to be made … and may direct such other relief as is just and proper."
A board's deliberate actions to circumvent and/or to bar titleholders from nominating themselves or standing for election could result in court sanctions against the board and those that assisted in the unlawful conduct.
Glassman is an attorney specializing in corporate and business law. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or email email@example.com.