Category Archives: BOD Meeting Requirements & Limitations

Board Meeting Minutes

Corporations are legally required to keep written minutes of board meetings. (Corp. Code § 8320.) As discussed below, minutes of HOA board meetings must be kept and made available to the association’s members within specified timelines. (Civ. Code § 4950(a).)

Board Meeting Minutes = “Association Records” Subject to Inspection
Civil Code Section 5200 specifies various “association records” that must be kept and made available for inspection by an association’s members. (See “Records Subject to Inspection.”) Included in definition of “association records” are:

“…[a]gendas and minutes of meetings of the members, the board, and any committees appointed by the board pursuant to Section 7212 of the Corporations Code; excluding, however, minutes and other information from executive sessions of the board…” (Civ. Code § 5200(a)(8).)

Availability & Distribution of Minutes to Members

Available to Members within 30 Days
Board meeting minutes, minutes proposed for adoption (“draft minutes”), or a summary of the minutes, of any board meeting (other than executive session) must be made available to the association’s members within thirty (30) days following the board meeting. (Civ. Code § 4950(a).)

Distributed to Members upon Request
The minutes, proposed minutes, or summary minutes must also be “distributed to any member upon request and upon reimbursement of the association’s costs for making that distribution.” (Civ. Code § 4950(a); See also “Deadlines for Producing Records” and “Member Record Inspection Rights.”)

Right to Obtain Minutes
An association’s annual policy statement must inform the association’s members “of their right to obtain copies of board meeting minutes and of how and where to do so.” (Civ. Code § 4950(b).)

Executive Session Minutes
Although there is no explicit legal requirement for the board to keep minutes of executive session meetings, provisions of the Corporations Code and the Davis-Stirling Act strongly indicate the existence of such a requirement:

“(a) Each corporation shall keep:…(2) minutes of the proceedings of its…board…” (Corp. Code § 8320(a)(2).)

“…minutes and other information from executive sessions of the board…” (Civ. Code § 5200(a)(8).)

“…(D) Minutes and other information from executive sessions of the board…” (Civ. Code § 5215(a)(5)(D).)

No Inspection of Executive Session Minutes
While board meeting minutes are association records that may be inspected by the association’s members, those inspection rights do not extend to “minutes and other information” from executive session. (Civ. Code § 5215(a)(5)(D); See also “Records Not Subject to Inspection.”)

Executive Session Matters Noted in Open Meeting Minutes
Any matter which is discussed in executive session must be “generally noted” in the minutes of the immediately following open board meeting. (Civ. Code § 4935(e).)

Open Forum

The Open Meeting Act grants HOA members the right to speak at membership meetings and open board meetings, except for executive session board meetings. (Civ. Code §§ 4925; 5000(b).) The time period for when members are permitted to speak during an open board meeting and address the board is commonly referred to as “Open Forum” or the “Member Comment Period.”

Time Limitations
A member’s right to speak at an open board meeting is subject to a “reasonable time limit” established by the board. (Civ. Code § 4925(b).) Time limits commonly utilized by HOAs in this respect range between 2 and 4 minutes per member.

Topics Discussed; Questions & Responses
Civil Code Section 4930 generally prohibits the board from discussing or acting upon items that were not placed on the agenda that was included with the notice of meeting. (See “Board Meeting Agenda Requirements.”) However Civil Code Section 4930 “does not prohibit a member or resident who is not a director from speaking on issues not on the agenda.” (Civ. Code § 4930(a).) Thus, even if an issue is not listed on the agenda, a member may still speak on that issue. Additionally, regardless of whether a member makes a statement or poses a question about a non-agenda item, Civil Code Section 4930(b) allows a director, an agent of the board, or the association’s manager to do any of the following:

  • “Briefly respond to the member’s statements made or questions posed” by the member; (Civ. Code §4930(b)(1).)
  • “Ask a question for clarification, make a brief announcement, or make a brief report of the person’s own activities, whether in response to questions posed by a member or based upon the person’s own initiative.” (Civ. Code § 4930(b)(2).)

No Action Without a Meeting

Corporations Code Section 7211 allows for corporate boards to take board actions “without a meeting, if all directors of the board…individually or collectively consent in writing to that action.” (Corp. Code § 7211(b).)  This “action without a meeting” (aka “unanimous written consent”) provision was historically relied upon by HOA boards of directors in order to conduct association business outside of board meetings. However, as a result of the 2012 amendments to the Open Meeting Act, HOA boards are generally prohibited from taking such “actions without a meeting”:

“The board shall not take action on any item of business outside of a board meeting.” (Civ. Code § 4910(a).)

“Items of Business” & Delegation
An “item of business” for the purpose of Civil Code Section 4910’s prohibition on actions without a meeting means “any action within the authority of the Board, except those actions the board has validly delegated to any other person or persons, managing agent, officer of the association, or committee of the board comprising less than a quorum of the board.” (Civ. Code § 4155 (Emphasis added).) Thus, a board may delegate some of its responsibilities to a manager or committee in order for certain actions to be taken between board meetings. (See “Delegating Duties & Authority.”)

Email & Emergency Meetings
Civil Code Section 4910 also prohibits boards from a conducting a meeting “via a series of electronic transmissions, including but not limited to, electronic mail.” (Civ. Code § 4910(b)(1); See also “Email Meetings.”) Email meetings may, however, be used to conduct emergency meetings. (Civ. Code § 4910(b)(2).)

Email Discussions Permitted
The prohibition on acting on items of business outside of a board meeting does not prohibit the board from discussing items of business via a series of email communications. (See LNSU #1, LLC v. Alta Del Mar Coastal Community Assn (2023).)

Related Links

Email Discussions Between HOA Board Members are not “Meetings”
-Published on HOA Lawyer Blog (September 2023)

Board Meeting Agenda Requirements

An agenda of items to be discussed or acted upon by the board at a board meeting must be included within the notice of meeting that is provided to the association’s members. (Civ. Code § 4920(d).) The only exception to the agenda requirement is in the context of emergency meetings where no notice is required. (Civ. Code § 4920(b)(1).)

Discussions and Actions Constrained by Agenda
In general, “the board may not discuss or take action on any item at a nonemergency meeting unless the item was placed on the agenda” included with the notice of meeting. (Civ. Code § 4930(a).) The content of the agenda is thus significant because the board is generally prohibited from discussing or acting upon items that were not placed on the agenda, subject to the following exceptions:

  • A director or the association’s manager may briefly respond to statements made or questions posed by a person speaking at an open meeting. (Civ. Code § 4930(b)(1).)
  • A director or the association’s manager may ask a question for clarification, make a brief announcement, or make a brief report of the person’s own activities, whether in response to questions posed by a member or based upon the person’s own initiative. (Civ. Code § 4930(b)(2).)
  • A director or the board may provide a reference to, or provide other resources for factual information to, the association’s manager or other agents or staff. (Civ. Code § 4930(c)(1).)
  • A director or the board may request that the association’s manager or other agents or staff report back to the board at a subsequent meeting concerning any matter, or take action to direct the manager or other agents or staff place a matter of business on a future agenda, or to direct its manager to perform administrative tasks that are necessary to carry out the requirements of Civil Code Section 4930. (Civ. Code § 4930(c)(2)-(3).)
  • The board may act on emergency items, items requiring immediate action, and items that appeared on the agenda for the board’s previous meeting (discussed further, below). (Civ. Code § 4930(d).)

Emergency Items; Items Requiring Immediate Action; Items on Prior Agenda
In addition to the exceptions listed above, the board may take action on any item of business not appearing on the agenda under any of the following conditions:

  • Emergency Situation. Upon a determination made by a majority of the board present at the meeting that an emergency situation exists. An emergency situation exists if there are circumstances that could not have been reasonably foreseen by the board, that require immediate attention and possible action by the board, and that, of necessity, make it impracticable to provide notice. (Civ. Code § 4930(d)(1).)
  • Item Requiring Immediate Action. Upon a determination made by the board by a vote of two-thirds of the directors present at the meeting, or, if less than two-thirds of total membership of the board is present at the meeting, by a unanimous vote of the directors present, that there is a need to take immediate action and that the need for action came to the attention of the board after the agenda was distributed. (Civ. Code § 4930(d)(2).)
  • Item Appearing on Prior Agenda. The item appeared on an agenda for a prior meeting of the board that occurred not more than thirty (30) calendar days before the date that action is taken on the item and, at the prior meeting, action on the item was continued to the meeting at which the action is taken. (Civ. Code § 4930(d)(3).)

Before discussing any item falling into one of the three (3) categories above, the board is required to openly identify the item to the members in attendance at the meeting. (Civ. Code § 4930(e).)

Related Links

‘Substantial Compliance Test’ Possibly Applicable to Open Meeting Act Requirements – Published on HOA Lawyer Blog (01/05/16)

Board Meeting Notice Requirements

The Open Meeting Act contains several requirements governing the notice of board meetings which must be provided to an association’s members, as well as the items that must be placed on an agenda that is included with the notice. Those requirements vary depending upon the type of board meeting being held (i.e., whether the meeting is an open meeting, a meeting held solely in executive session, or an emergency meeting). The notice requirements that apply to board meetings are distinct from those that apply to membership meetings. A notice of board meeting must include an agenda of items to be discussed or acted upon by the board at the meeting. (See “Board Meeting Agenda Requirements.”)

Notice to Members
The type of notice that must be provided to members varies based upon the type of meeting being held.

Open Meetings
Notice of the time and place of open board meetings must be provided to all members at least four (4) days prior to the meeting, unless the association’s governing documents require a longer period of notice. (Civ. Code § 4920.)

Teleconference Meetings – If the open board meeting is to be held via teleconference, Civil Code Section 4090(b) requires the association to specify within the meeting notice a physical location where members may attend and observe (listen to) the teleconference meeting, as well as address the board on association matters during Open Forum. (See “Teleconference Meetings.”)

Virtual Meetings – If the open board meeting is to be conducted virtually (entirely by teleconference without any physical location), Civil Code Section 4926 requires the association to also include within the notice: instructions on how to participate by telephone, the contact information of someone who can provide technical assistance with the teleconference process, and a reminder that members may request individual delivery of meeting notices with instructions how to do so. (See “Virtual Meetings.”)

Executive Session Meetings
Notice of the time and place of board meetings which are held solely in executive session must be provided to all members at least two (2) days prior to the meeting. (Civ. Code § 4920(b)(2).) If a provision of the association’s governing documents requires a longer period of notice, that provision does not apply to a meeting held solely in executive session “unless it specifically states that it applies” to that type of meeting. (Civ. Code § 4920(b)(3).)

Emergency Meetings
No notice is required for an emergency meeting. (Civ. Code § 4920(b)(1).) If a provision of the association’s governing documents requires notice, that provision does not apply to an emergency meeting “unless it specifically states that it applies” to that type of meeting. (Civ. Code § 4920(b)(3).)

Delivery of Notice to Members
The notice of meeting, which includes the agenda, must be given to members by “general delivery” pursuant to Civil Code Section 4045. (Civ. Code § 4920(c).) General delivery includes any of the following methods:

  • “Any method for delivery of an individual notice pursuant to Section 4040.” (Civ. Code § 4045(a)(1).)
  • “Inclusion in a billing statement, newsletter, or other document that is delivered by one of the methods provided in this section.” (Civ. Code § 4045(a)(2).)
  • “Posting the printed document in a prominent location that is accessible to all members, if the location has been designated for the posting of general notices by the association in the annual policy statement, prepared pursuant to Section 5310.” (Civ. Code § 4045(a)(3).)
  • “If the association broadcasts television programming for the purposes of distributing information on association business to its members, by inclusion in the programming.” (Civ. Code § 4045(a)(4).)

Posting the notice in a designated area (i.e., a bulletin board located at a common area pool or recreational facility) or including it within a billing statement or newsletter are the more common methods used by associations.

Request for Individual Delivery of Notice
If a member requests to receive general notices by individual delivery, all general notices to that member (which would include notices of meetings), must be delivered to that member by individual delivery (i.e., first-class mail). (Civ. Code §§ 4045(b), 4040.) A member’s right to receive notices of meetings by individual delivery must be described in the association’s annual policy statement. (Civ. Code § 4045(b).)

Notice to Directors
The requirements for giving notice of a board meeting to members of the board (an association’s directors) are typically found in the association’s bylaws or articles. If the association’s governing documents are silent on this issue, Corporations Code Section 7211 provides for the following:

  • Regular Meetings. Regular meetings by the board may be held without notice being given to the directors “if the time and place of the meetings are fixed by the bylaws or the board.”  (Corp. Code § 7211(a)(2).)
  • Special Meetings. Special meetings of the board require “four days’ notice by first-class mail or 48 hours’ notice delivered personally or by telephone, including a voice messaging system or by electronic transmission to the corporation. (Corp. Code § 7211(a)(2).) “Electronic transmission” includes facsimile or email. (Corp. Code § 20.) An association’s articles or bylaws may not dispense with any requirement to provide a notice of a special meeting.
  • Emergency Meetings. Corporations Code Section 7211 does not address notice to directors for emergency meetings.

Waivers of Notice, Consent and Approvals by Directors
As set forth in Corporations Code Section 7211(a)(3), a notice of meeting need not be given to a director who:

 “provided a wavier of notice or consent to holding the meeting or an approval of the minutes thereof in writing,” or

“attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to that director.”

These “waivers, consents and approval” must be filed with the association’s records or made part of the meeting’s minutes. (Corp. Code § 7211(a)(3).)