In light of recently enacted legislation, it is now never too early for common interest developments (planned unit developments, condominium complexes, stock cooperatives, and community apartment projects; collectively, “CIDs”) to plan for the next election of their respective directors.
We previously wrote to you about Civil Code Section 5103 when it became effective on January 1, 2022. The statute gives all CIDs the option to elect directors by “acclamation.” Election by acclamation is now possible when the number of candidates vying for election to the board equal or are less than the number of open seats. In these circumstances, the board may vote to seat all candidates to the vacant seats rather than carry out an election by the members through secret ballot voting.
This option is attractive because (a) the results of the election are already known, given the number of candidates, and (b) the CID saves the cost, time, and labor associated with holding a secret balloting process. The only drawback: the timeline needed to elect the board is lengthened by sixty days.
All CIDs may consider qualified candidates elected by acclamation, regardless of a secret balloting requirement elsewhere or any contrary provision in the governing documents, if all of the following conditions are met:
- As of the deadline for submitting nominations, the number of qualified candidates is not more than the number of board positions to be filled;
- The CID has held a regular election for the directors in the last three years;
- The CID provided individual notice of the election and the procedure for nominating candidates;
- The CID provides notice to a nominee and the member submitting the nomination, acknowledging the submission and informing the nominee of whether they are a qualified candidate;
- The CID permits all candidates to run if nominated, unless disqualified by statute; and
- The CID’s board votes to consider the qualified candidates at an open meeting for which the agenda item reflects the name of each qualified candidate that will be seated by acclamation if the item is approved.
As a result, the director election timeline that incorporates the notice period required for an election by acclamation would be as follows:*
1. Initial Notice (At least 150 days before Voting Deadline) – At least 90 days before the deadline for submitting candidate nominations (item (3) below), the CID must provide an initial notice including:
(A) The number of board positions that will be filled at the election;
(B) The deadline for submitting nominations;
(C) The manner in which nominations can be submitted; and
(D) A statement informing members that if, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may vote to seat the qualified candidates by acclamation without balloting.
2. Reminder notice (at least 67 days before Voting Deadline) – At least 7 days before the deadline for submitting candidate nominations (item (3) below), the CID must provide a reminder notice including:
(A) The number of board positions that will be filled at the election;
(B) The deadline for submitting nominations;
(C) The manner in which nominations can be submitted;
(D) A list of the names of all of the qualified candidates to fill the board positions as of the date of the reminder notice; and
(E) A statement reminding members that if, at the close of the time period for making nominations, there are the same number or fewer qualified candidates as there are board positions to be filled, then the board of directors may vote to seat the qualified candidates by acclamation without balloting. This statement is not required if, at the time the reminder notice will be delivered, the number of qualified candidates already exceeds the number of board positions to be filled.
3. At Least 60 Days before Voting Deadline (Deadline for Nominations) –Provide notice of the items below, and permit members the opportunity to verify accuracy of their information on the candidate list or voter list. The Inspector(s) of Elections must change and correct lists within two (2) business days of any error or omission being reported.
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- date and time by which, and the physical address where, ballots are due ;
- date, time, and location of the meeting at which ballots will be counted; and
- list of the names and addresses of all candidates.
4. At Least 30 Days before Voting Deadline – Inspector(s) of Elections sends secret ballots and copy of Election Rules.
5. Voting Deadline & Date of Election
(*Assuming each step is for the shortest, legally allowable period.)
While the foregoing may appear cumbersome, the time and effort needed to carry out an election by acclimation would ultimately be less than carrying out a secret ballot election.
If you have further questions regarding the director election timeline, elections by acclamation, and their impact upon your common interest development, please contact Bill Scherer at wms@sfcounsel.com or Louis Sarmiento at ljs@sfcounsel.com.
– Written by William M. Scherer, Esq., and Louis J. Sarmiento, Esq.