Prior to a director election, an association typically distributes a “call for candidates” in order to solicit members to run for the board. There are several issues that pertain to how candidates are and may be nominated, such as ensuring that the candidates are “qualified” to serve on board, whether write-in candidates are allowed, and whether floor nominations are allowed.
An association’s election rules must specify the qualifications for candidates for the board, as well as the procedures for the nomination of candidates, consistent with the association’s governing documents. (Civ. Code § 5105(a)(3); See also “Election Rules.”)
Right to Self-Nominate – Some sets of association bylaws may contain provisions allowing for the creation of “nominating committees” that have the power to screen which people are eligible to run for a seat on the board. However, an association’s election rules may not prohibit any member from nominating himself or herself for election to the board. (Civ. Code § 5105(a)(3).) Therefore, an association (whether through its board or nominating committee) does not have the power to prohibit any member from nominating himself or herself and from running for the board, so long as the member satisfies all of the required qualifications. (See “Director Qualifications”; See also Friars Village HOA v. Hansing (2013) 220 Cal.App.4th 405 at 414 (the “right of self-nomination…applies to a ‘qualified’ candidate”).)
An association is not required to allow for floor nominations unless such a requirement is contained in the provisions of the association’s governing documents or election rules. (Civ. Code § 5105(b).)
Floor Nomination Procedure – Once the required quorum has been established, the chair of the meeting (typically the board president) will at the designated time open the floor for nominations. Members in good standing may nominate any qualified individual as a candidate for election to the board. A member need not be recognized by the chair of the meeting in order to make a nomination and no second is required. (Robert’s Rules, 11th ed., pp. 431-432.) The nomination is valid provided the nominee is qualified for election to the board; the nominee need not be contacted in advance of being placed on the ballot. (Robert’s Rules, 11th ed., p. 434.)
Ballots Previously Cast – If member’s ballot has already been mailed in and received by the association’s inspector of elections, the ballot is irrevocable. (Civ. Code § 5120(a).) That member would thus be prohibited from voting for any person that was nominated from the floor at the meeting.
Civil Code Section 5105 allows for an association’s election rules to permit write-in candidates. (Civ. Code § 5105(b).) Unless the election rules, or other provisions of an association’s governing documents, permit write-in candidates, there is no legal requirement for an association to allow write-ins. However, if an association’s nomination procedures (either contained in the election rules or other provisions of its governing documents) allow for floor nominations, many HOA industry attorneys take the position that write-ins are impliedly valid.
Related Case Law
- Friars Village Homeowners Assn. v. Hansing
(2013) 220 Cal. App. 4th 405
[Election Rules; Director Qualifications] Court upheld association’s authority to adopt election rules which prohibited closely-related members from being nominated to serve as directors.