HOA Homefront: Elections without ballots prompt myriad member questions
Q: There is a lot of information on the internet about election acclamation, but one item does not seem to be answered. Perhaps you can assist. Once a board determines/votes to elect candidates by acclamation at an open board meeting, when do the candidates assume their new role? Immediately? At the annual meeting (as if voting had occurred)? — J.P., a manager in Lodi
A: The statute providing for election by acclamation is Civil Code Section 5103. However, the statute does not expressly answer your question.
Subpart (e) of the statute says that if all the other requirements are met, the HOA board can vote to “consider the qualified candidates elected.”
Corporations Code Section 7220(b) says that directors hold office “until the expiration of the term for which elected and until a successor has been elected and qualified.”
If we take that statute at face value, it means that the new directors who are elected by acclamation would take office at the expiration of the terms of the outgoing directors. Normally, the term expires at the annual meeting election, so then the new directors would begin their service as of the date on which the election would have been held.
Because Civil Code 5103 has some very specific prerequisites before acclamation becomes available, and because the timing of the required notices is important, it may be advisable to update election rules to include the acclamation requirements and develop an annual election timeline so that the board and management are prepared.
Under the acclamation procedures as stated in Section 5103, the board must start setting its schedule for election-related events about seven months ahead of the anticipated election date.
The option of declaring candidates elected by acclamation is great, but it’s essential that HOAs follow the requirements, so that it is available without a procedural challenge.
Q: Our board has decided to use the new laws on election by acclamation this year without amending our election rules. This year, three of the five members have their terms expire. What happens if there are fewer than three candidates for the positions? Without amending the rules, this is an area of uncertainty. — W.B., Escondido
A: I agree with you that amending election rules would help avoid uncertainty and also help preserve the availability of acclamation as an option.
If the HOA complied with Civil Code Section 5103, and there are fewer candidates than open seats, there seem to be two options for dealing with the shortfall.
Corporations Code Section 7220(b) says that directors serve until they resign or their term expires and a successor has been elected. In the situation where only two of the three open seats were filled, the outgoing board could vote as to which seat was not replaced, allowing one director to continue serving after their expired term (until the next election).
If none of the directors wished to continue serving, then the board could regard the seat as vacant, and the new board would in an open meeting vote to appoint an eligible member to take the open seat.
Kelly G. Richardson CCAL is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Send column questions to Kelly@roattorneys.com.