Seating California HOA Directors without Balloting: is it Legal?

Yes, a new law – AB502/Davis – permits associations of any size to seat board directors by “acclamation,” but there are LIMITS to the use of this tool.

FIRST: it can’t be used every time there’s a board election; it can ONLY be used once every three years (Civil Code 5103(a)

So, what IS “acclamation” you ask?  It’s a method for seating board directors when the number of qualified candidates equals the number of seats to be filled.  Using acclamation means that no paper ballots are distributed to the Membership and no election-by-balloting takes place.

Recent law permitted only HOAs with 6000+ parcels to use acclamation. [Civil Code §5100(g)(1)].  Furthermore, the process was INVISIBLE, meaning the Inspector of Elections – not the board –determined that the number of qualified candidates equaled the number of positions to be filled.  The Inspector then phoned or emailed (or somehow informed) the board or the property manager – existing law doesn’t say which – to “report” that sufficient qualified candidates had been identified and no formal election-by-ballot need be held by the Membership.

Existing law did not require that any of these steps by Inspector or by the board be done publicly.  The HOA was, essentially saying “Trust Us!” to the owner-voter – “We’re running the election fair and square!”

AB502/Davis changes this invisible/secret process and exposes it to the light of day.  .

Specifically, AB502 requires that

  • Only the board can decide, ultimately, if the number of qualified candidates equals the number of vacancies, though the board can rely on the Inspector’s report on qualified candidates
  • The board must give official NOTICE to homeowners of its intention to VOTE to seat the qualified candidates by acclamation. The board’s decision to seat candidates by acclamation can only be done at an OPEN BOARD MEETING.
  • The open board meeting must be properly-noticed to owner-voters.
  • The NOTICE to owners must LIST the names of the candidates to be seated. Making the list public lets voters study the candidates.  
  • The board must VOTE on the candidate list.
  • Under SB391/Min, board votes must be recorded BY ROLL CALL, meaning one-by-one the vote of each director on whether to seat a given candidate must be identified and then preserved in the minutes.  (Civil Code Section 5450(c)(4). No longer can directors “bury” their votes by mumbling their decision.

Finally, an association must strictly comply with all the nomination and timing procedures put in place by SB323/Wieckowski (2019) and SB432/Wieckowski (2021).

REMEMBER: violations of the HOA election laws can trigger lawsuits brought by voters.(See Civil Code Section 5145).

Any association that wants to use “acclamation” had better read carefully both the LAW and also the SENATE JUDICIARY ANALYSIS where the final version of AB502 was hammered out.  There are some STOP signs that an association has to heed if it wants to seat directors by acclamation. 

LINKS: AB502/Davishttps://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB502
Senate Judiciary Analysis
https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220AB502
Civil Code 5145
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=
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QUESTIONS OR COMMENTS?
Center for California Homeowner Association Law
Oakland, California 94610
email [email protected]

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