As a volunteer HOA board member or homeowner within an association, elections, quorums, secret ballots and things related can be very confusing. They can even be confusing to those trained to work in this industry. If nothing else, you should understand that not all elections are equal.
Let’s look at secret ballots for a moment. According to California Civil Code §5100 (a), notwithstanding any other law or provision of the governing documents, the following issues are those that must be decided by secret ballot:
- Elections regarding assessments legally requiring a vote
- Election and removal of directors
- Amendments to the governing documents
- The grant of exclusive use of common area pursuant to Section §4600
Items falling outside of these categories would not require secret ballots. The mistaken assumption would be that all elections or member votes require a secret ballot. Member surveys are used for many purposes and take on many forms. These would be a great example of a vote that would not require secret ballots.
Now let’s consider the issue of a Quorum. Most elections of directors (HOA board members) do have some sort of quorum requirement that is dictated by the Bylaws. The percentage of votes required to make up a quorum can vary greatly depending on each set of Bylaws. Because some members have only experienced elections for directors, they assume that all elections or member votes require the same quorum and election requirements as their elections for directors. This again is an incorrect assumption. The requirements of the four types of elections above may be and likely are completely different.
For example, the governing documents may require two-thirds of the association’s total membership to vote in favor of an amendment. In this case the idea of a quorum is irrelevant. Amendments to the Bylaws may, and often do, have different requirements than the Covenants, Conditions, and Restrictions (CC&Rs) and a quorum may or may not be one of these requirements. The particular Bylaws will explain the requirements.
Quorum is not a consideration in relation to California Civil Code §4600. In this case, civil code, not the governing documents, dictates the voting requirements to grant exclusive use of common areas. There’s also no quorum consideration in relation to the many types of member surveys that an association may consider.
I want to point out that I’m not trying to frustrate the reader at this point. The purpose is rather to make it clear that not all elections are equal and HOA boards should understand the type of election or ballot being sent and the particular requirements of each. This is just one small example of why it’s important to avoid assumptions, to know your governing documents and the law, and to use your experts/professionals to help you as a Board to conduct your business appropriately.