California HOA Election Rules: Civil Code 5100 to 5145

Quick answer: California HOA election rules come from Civil Code 5100 to 5145. Director elections, recalls, governing document amendments, assessment votes that legally require a member vote, and grants of exclusive use of common area must be held by secret ballot. The association has to adopt election operating rules, use one or three independent inspectors of elections, deliver ballots at least 30 days before the voting deadline, and count the votes in public at an open meeting.

These rules override your bylaws where they conflict. A court can void an election that didn't follow them. Below is what the statute requires, a timeline you can work backward from, and what to put in the minutes.

Which votes need a secret ballot

Civil Code 5100(a)(1) sets the scope:

Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote, election and removal of directors, amendments to the governing documents, or the grant of exclusive use of common area pursuant to Section 4600 shall be held by secret ballot in accordance with the procedures set forth in this article.

Section 5100 also requires an election for each board seat when the director's term expires, and at least once every four years. The article applies to incorporated and unincorporated associations. It covers votes cast directly by the membership, not votes cast by delegates. Your operating rules can also extend these procedures to other topics.

The election rules your association must adopt

Civil Code 5105 requires every association to adopt election operating rules. At a minimum, the rules must:

• Give all candidates and members advocating a point of view equal access to association media during a campaign, if anyone gets access, without the association editing the content.
• Give candidates and members free access to common area meeting space during a campaign.
• State the qualifications for candidates and the nomination procedure. A procedure isn't reasonable if it stops a member from nominating themself.
• State the voting power of each membership, how proxies are treated, and the voting period, including when polls open and close.
• Set the method for selecting one or three independent inspectors of elections.
• Require the association to keep a candidate registration list and a voter list, and let members verify their information at least 30 days before the ballots are distributed.

The rules can't be changed close to an election. Section 5105 bars amending the election operating rules less than 90 days before an election.

Who can be disqualified

The association must disqualify a nominee who isn't a member at the time of nomination, or who has served the maximum number of terms allowed. Through the bylaws or election rules, the association may also disqualify a nominee who isn't current on regular and special assessments, who would serve alongside a co-owner of the same separate interest, who has been a member for less than one year, or whose past criminal conviction would prevent the association from getting or keeping the insurance required by Section 5806.

There are limits. A nominee can't be disqualified for unpaid fines, late charges or collection costs. A nominee who paid under protest or is on a payment plan isn't treated as delinquent, and nobody can be disqualified without the chance to use internal dispute resolution. Whatever the association requires of nominees, it must also require of sitting directors. For the collection rules behind those terms, see Dynamite Management's guide to California delinquent assessments under Civil Code 5650.

The inspector of elections

The inspector runs the election, not the board. Civil Code 5110(a) says:

The association shall select an independent third party or parties as an inspector of elections. The number of inspectors of elections shall be one or three.

An independent third party can be a member of the association. It can't be a director, a candidate, or someone related to a director or candidate. It also can't be a person or business currently employed by or under contract to the association for any paid service other than serving as inspector. The statute gives examples: a volunteer poll worker with the county registrar of voters, a licensee of the California Board of Accountancy, or a notary public.

The inspector decides who can vote and the voting power of each membership, rules on proxies, receives the ballots, hears challenges, counts and tabulates the votes, decides when the polls close, and determines the result.

California HOA election timeline

Work backward from the date ballots are due. These are the statutory minimums for director and recall elections. Your governing documents may require more.

Add those up and a contested director election takes at least three months from the first notice to the count. Start early. Members who ask for individual notice must get it individually.

The double-envelope ballot

The ballot isn't signed. The voter seals it in one envelope, puts that inside a second envelope, and signs the outside of the second envelope with their name and the address or separate interest identifier that entitles them to vote. The second envelope goes to the inspector by mail or by hand. The statute protects secrecy this way:

In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot.

Electronic voting

Under Section 5105, an association may adopt an election rule allowing electronic secret ballots run by the inspector. It can't be used for an election on regular or special assessments. The rule has to cover how members switch between electronic and written ballots, and the association must send individual notice of the electronic ballot 30 days before the election. Confirm the details with the statute before you adopt this kind of rule.

Quorum and reconvened meetings

A quorum is required only if the governing documents or another law say so. Each ballot the inspector receives counts as a member present. If a director election misses quorum, Section 5115 lets the association adjourn to a date at least 20 days later, when the quorum drops to 20 percent of the members, unless the governing documents set a lower one. The association must give general notice of the reconvened meeting at least 15 days ahead.

Election by acclamation

If the number of qualified candidates isn't more than the number of open seats, Civil Code 5103 lets the board seat the candidates without balloting, but only if the association followed a specific notice schedule. That includes an initial notice at least 90 days before the nomination deadline, a reminder notice 7 to 30 days before it, and a regular election held within the last three years. The board votes on it at an open meeting with the candidates named on the agenda.

Counting the votes and recording the results

Civil Code 5120(a) requires a public count:

All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector or inspectors of elections, in public at a properly noticed open meeting of the board or members.

Any candidate or member may watch. Nobody may open or review a ballot before the counting meeting, though the inspector may verify signatures on the outer envelopes ahead of time. Once the inspector receives a secret ballot, it can't be revoked.

The minutes matter here. Section 5120(b) says:

The tabulated results of the election shall be promptly reported to the board and shall be recorded in the minutes of the next meeting of the board and shall be available for review by members of the association.

A minutes entry that satisfies this can be short. For example:

Election results. The inspector of elections reported the tabulated results of the director election held on [date]. Ballots received: [number]. Quorum: [met or not required]. Votes: [candidate], [number]; [candidate], [number]; [candidate], [number]. The following were elected to the board: [names]. The board directed that general notice of the results be given to the members within 15 days of the election.

For the mechanics, see how to record a motion and vote in HOA board minutes and what to include in HOA meeting minutes. The counting meeting is an open meeting, so the notice and agenda rules in Civil Code 4920 apply. If the count happens at your annual meeting, our guide to running an HOA annual meeting covers the rest of the agenda.

Keeping the ballots

Under Civil Code 5125, the sealed ballots, signed voter envelopes, voter list, proxies, candidate registration list and any electronic tally sheet stay in the inspector's custody until the time to challenge the election has run. Then custody passes to the association. If there's a recount or challenge, the inspector must make the ballots available for inspection on written request, in a way that keeps the vote confidential. See how long to keep HOA meeting minutes for the records side.

What happens if the association gets it wrong

A member can sue within one year. If the member shows the election procedures weren't followed, Civil Code 5145 says the court shall void the results unless the association proves the noncompliance didn't affect the outcome. A prevailing member is entitled to attorney's fees and court costs, and the court may add a civil penalty of up to $500 per violation. Small claims court is available when the amount fits its limit.

Related California rules

Elections sit next to the money rules. Dynamite Management covers the Civil Code 5300 annual budget report, and HOA Fiscal's guide to self-managing an HOA covers the accounting side for boards without a manager.

FAQ

Do California HOA board elections have to be by secret ballot?

Yes. Civil Code 5100 requires a secret ballot for the election and removal of directors, along with assessment votes that legally require a member vote, governing document amendments, and grants of exclusive use of common area.

Who can be the inspector of elections for a California HOA?

One or three independent third parties. A member can serve, but not a director, a candidate, a relative of either, or anyone currently paid by the association for other services.

How far in advance must ballots go out?

At least 30 days before the voting deadline, with two preaddressed envelopes and a copy of the election operating rules. The pre-ballot general notice goes out at least 30 days before that.

How often must a California HOA hold a board election?

When each director's term expires, and at least once every four years, under Civil Code 5100(a)(2).

Do election results have to be in the minutes?

Yes. The tabulated results must be recorded in the minutes of the next board meeting and be available for members to review. The board must also give general notice of the results within 15 days of the election.

This is not legal advice. Statutes change, and your governing documents may add requirements. Confirm with the statute and your association's attorney.

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