We write to highlight two recent changes to the Davis-Stirling Act that respectively affect (i) elections in common interest developments (planned unit developments, condominium complexes, stock cooperatives, and community apartment projects; collectively, “CIDs”) and (ii) balconies in condominium projects.
- Electronic Secret Ballot Voting.
Assembly Bill 2159 became law on January 1, 2025, and added a new subsection to Civil Code Section 5105 (“§5105”). The new language authorizes CIDs the option to voluntarily adopt an election rule that would allow for elections by electronic secret ballot (“electronic voting” or “vote electronically”), even if the CID’s governing documents require paper ballots. The only exceptions to the availability of voting electronically are votes to approve regular or special assessments, which elections must use paper ballots.
Electronic voting is a new concept for CIDs, but it is regularly used for shareholder votes for large publicly traded companies. As used in §5105, electronic voting means an internet-based voting system that ensures the secrecy and integrity of a ballot in a way that is consistent with the requirements of the Davis-Stirling Act.
While CIDs are not required to adopt balloting via electronic voting, any CID Board of Directors that wishes to adopt electronic voting must adopt an election rule (using the rule change process) that permits the CID’s inspector(s) of elections to conduct the election by electronic voting. Under §5105, the election rule adopted to allow electronic voting must include the following provisions:
- Permitting a member to change their preferred method of voting from electronic voting to paper ballot, or vice versa, no later than 90 days before an election;
- Requiring an electronic ballot and a paper ballot to contain the same list of items being voted upon;
- Requiring the CID to mail a paper ballot only to a member who has opted out of electronic voting or for whom the CID does not have an e-mail address, for an election rule in which the member is permitted to opt out of electronic voting to vote by paper ballot;
- Requiring the CID to send an electronic ballot only to a member who has opted into electronic voting, for an election rule in which a member is permitted to opt in to electronic voting;
- Requiring the CID to maintain a voting list identifying which members will vote electronically and which members will vote by paper ballot,
- Requiring the CID to include information on the procedures to either opt out of opt into electronic voting, as applicable, in the CID’s annual policy statement;
- Requiring a member who votes electronically to provide a valid e-mail address to the CID; and
- Prohibiting nomination of candidates from the floor of membership meetings.
If the CID opts to include electronic voting, Civil Code §5105(i) also requires extension of the overall election timeline. Where members are permitted to opt out of electronic voting, the CID is required to provide certain information to members pertaining to their current voting method and electronic voting at least 120 days before an election. Also, CIDs will be required to deliver individual notice of the electronic ballot to each member 30 days before the election, which notice shall contain instructions on how to obtain access to the internet-based voting system and how to vote electronically.
As you see, while electronic voting may benefit members and even some CIDs because it somewhat eases the effort necessary to carry out an election by reducing the paper and work required for it, any CID that opts into this regime faces some significant burdens in administering it. Therefore, if your CID decides to adopt electronic voting rules, please also set aside resources so that it can be properly set up and administered for your organization.
- Balcony Inspections in Condominium Projects.
You may recall that in 2020, new Civil Code Section 5551 (“§5551”) took effect that requires Boards of condominium projects to visually inspect, at least every nine (9) years, the exterior elevated elements of the association’s structures that the association is required to maintain under its governing documents.
You may know that this law was initially introduced due to an outpouring of concern for safety initially caused by a balcony collapse in Berkeley, California, which killed six (6) people and injured seven (7) more. The building at the time was just recently constructed.
While §5551 is generally recognized as a “balcony inspection” requirement, the obligation is actually much broader than simply the balconies of an association. Because the operative term is “exterior elevated elements,” §5551 also applies to any other components that extend beyond the exterior walls of a structure that delivers a structural load to its decks, balconies, stairways, walkways, and their railings.
Indeed, §5551 applies to all walking surfaces that are (a) elevated more than six feet above ground level, (b) designed for human occupancy or use, and (c) supported in whole or in substantial part by wood or wood-based products, as well as the waterproofing system associated with those components.
As we are now in a new year, mention of §5551 is particular appropriate because the Boards of condominium projects that are required to carry out balcony inspections must have had their first inspection by January 1, 2025. Therefore, if your condominium project has not conducted its inspection, we recommend that this be done as soon as possible.
Once an inspection has been performed, follow-on inspections must occur at least every nine (9) years thereafter in coordination with the reserve study inspections that all CIDs must conduct every three (3) years pursuant to Civil Code Section 5550. All written reports shall be maintained for two inspection cycles as records of the association.
Under the most recent change to §5551, civil engineers were added to the list of professionals (joining structural engineers and architects) authorized to conduct inspections of exterior elevated elements.
If you have further questions regarding electronic elections, exterior elevated element inspections, or any other matters of importance to your association, please contact Bill Scherer at [email protected] or Louis Sarmiento at [email protected].
– Written by William M. Scherer, Esq., and Louis J. Sarmiento, Esq.