Category Archives: Types of Board Meetings

Virtual Meetings (Meetings Entirely by Teleconference)

Subject to certain requirements and limitations, the Open Meeting Act allows for HOA board meetings to be conducted via teleconference, where “teleconference” means that:

“…a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b).)

A teleconference would thus encompass a web conference or similar technology that allows for directors to interact in real-time.

No Physical Location Required for Virtual Meetings
Where an open board meeting is to be held via teleconference, Civil Code Section 4090 generally requires the association to identify at least one physical location where members may attend and observe (listen to) the teleconference meeting, as well as address the board on during open forum.  (See “Teleconference Meetings.”)

Civil Code Section 4926 was added to the Davis-Stirling Act to dispense with this physical location requirement in order to facilitate conducting meetings entirely by teleconference (“virtual meetings”), subject to the additional requirements specified in Section 4926 (described below).

Virtual Meeting Requirements

Notice Requirements – The notice for a virtual meeting must include, in addition to other required content for meeting notices, all the following: (Civ. Code § 4926(a)(1).)

    • Clear technical instructions on how to participate by teleconference;
    • The telephone number and e-mail address of a person who can provide technical assistance with the teleconference process, both before and during the meeting; and
    • A reminder that a member may request individual delivery of meeting notices, with instructions how to do so.

Equal Participation Requirement – Every director and member must have the same ability to participate in the meeting that would exist if the meeting were held in person. (Civ. Code § 4926(a)(2).)

Roll Call Vote Requirement – Any vote of the directors at the meeting must be conducted by a roll call vote. (Civ. Code § 4926(a)(3).)

Option to Participate by Telephone Requirement – Any person who is entitled to participate in the meeting must be given the option of participating by telephone. (Civ. Code § 4926(a)(4).)

Not Permitted for Ballot Counting Meetings
A meeting at which ballots are counted and tabulated pursuant to Civil Code Section 5120 may not be conducted virtually (Civ. Code § 4926(b).) If an HOA wants to conduct this meeting by teleconference, it must specify a physical location as discussed above. (Civ. Code § 4090(b).)

Related Links

AB 648 Signed! Virtual HOA Meetings
-Published on HOA Lawyer Blog (October 2023)

Board Meetings During Government Emergency

Civil Code Section 5450
Section 5450 was added to the Civil Code to address situations when physically gathering at a board meeting is unsafe or impossible because the HOA is in an area affected by one or more of the following conditions:

  • A state of disaster or emergency declared by the federal government.
  • A state of emergency proclaimed by the Governor under Section 8625 of the Government Code.
  • A local emergency proclaimed by a local governing body or official under Section 8630 of the Government Code

Teleconference Meeting without Physical Location
Conducting a teleconference board meeting generally requires “at least one director or person designated by the board” to be present at the physical location designated in the notice of the teleconference meeting. (Civ. Code § 4090(b).)  However, this physical location requirement does not apply to board meetings held under Section 5450 during government emergencies, provided that all Section 5450 meeting requirements (discussed below) are satisfied. (Civ. Code § 5450(b).)

Civil Code Section 5450 Meeting Requirements

  • Notice of the first board meeting conducted under Section 5450 for a particular emergency must be delivered to all members by individual delivery. (Civ. Code § 5450(b)(1).)
  • Notice for each meeting conducted under Section 5450 must include, in addition to other required content for meeting notices, all of the following: (Civ. Code § 5450(b)(2).)
    • Clear technical instructions on how to participate by teleconference;
    • The telephone number and email address of a person who can provide technical assistance with the teleconference process, both before and during the meeting; and
    • A reminder that a member may request individual delivery of meeting notices, with instructions on how to do so.
  • Every director and member has the same ability to participate in the meeting that would exist if the meeting were held in person. (Civ. Code § 5450(b)(3).)
  • Any vote of the directors must be conducted by a roll call vote. (Civ. Code § 5450(b)(4).)
  • Any person who is entitled to participate in the meeting must be given the option of participating by telephone. (Civ. Code § 5450(b)(5).)

When Mail Delivery or Retrieval is Not Possible; Email Notice
If, as a result of the disaster or emergency, mail delivery or retrieval is not possible at any onsite mailing address within the HOA, and the address on file with the HOA for that member is the same as the onsite mailing address, the HOA is required to send the notice of the first meeting referenced above to any email address provided to the HOA by that member. (Civ. Code § 5450(c).)

Teleconference Meetings

Subject to certain requirements and limitations, the Open Meeting Act allows for HOA board meetings to be conducted via teleconference, where “teleconference” means that:

“…a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b).)

A teleconference would thus encompass a web conference or similar technology that allows for directors to interact in real-time.

Attendance & Participation by Directors
A director who is unable to physically attend a board meeting may attend by telephone or video, so long as all directors participating in the meeting are able to hear one another. (Civ. Code § 4090(b); Corp. Code §7211(a)(6).) If the meeting is an open meeting, the director attending electronically must also be able to hear statements made by members in attendance at the meeting. (Civ. Code § 4090(b).)

Attendance & Participation by Members; Physical Location Requirement
Members are entitled to attend open board meetings, not executive session meetings. (See “Board Meeting Attendance Rights.”) If an open meeting is to be conducted via teleconference, Civil Code Section 4090 requires the association to identify at least one 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:

 “Except for a meeting that will be held solely in executive session or conducted under Section 4926 or 5450, the notice of the teleconference meeting shall identify at least one physical location so that members of the association may attend, and at least one director or person designated by the board shall be present at that location. Participation by directors in a teleconference meeting constitutes presence at that meeting as long as all directors participating are able to hear one another, as well as members of the association speaking on matters before the board.” (Civ. Code § 4090(b).)

Exceptions to Physical Location Requirement – As indicated above, “at least one director or person designated by the board” must be present at the physical location designated in the notice of the teleconference meeting. (Civ. Code § 4090(b).)  However, this physical location requirement does not apply to:

    1. Board meetings held solely in executive session;
    2. Board meetings during a government emergency conducted under Civil Code Section 5450; or
    3. Board meetings conducted entirely by teleconference pursuant to Civil Code Section 4926. (See “Virtual Meetings.”)

Related Links

AB 648 Signed! Virtual HOA Meetings
-Published on HOA Lawyer Blog (October, 2023)

Emergency Meetings

No Notice Required
The Open Meeting Act generally requires an association to provide its members with advance notice of a board meeting. Civil Code Section 4920(b)(1) waives this notice requirement in circumstances where the board must meet to address emergency circumstances (to conduct an emergency meeting). What constitutes an “emergency” circumstance is discussed further below.

Notice May be Required by Governing Documents
If a provision of an association’s governing documents requires notice of emergency meetings, the association is required to comply with that requirement only if the provision “specifically states that it applies” to an emergency meeting. (Civ. Code § 4920(b)(3).)

“Emergency” Circumstances
The circumstances that allow for the board to conduct an emergency meeting are addressed in Civil Code Section 4923:

“An emergency board meeting may be called by the president of the association, or by any two directors other than the president, if there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice as required by Section 4920.” (Civ. Code § 4923 (Emphasis added).)

Calling Emergency Meetings
An emergency board meeting may be called by the board president, or by any two (2) directors other than the president. (Civ. Code § 4923.)

Form of Meeting
Emergency meetings may take place in any of the following forms:

  • In Person. The directors may meet in person at a physical location (i.e., a common area clubhouse or recreational facility). (Civ. Code § 4090(a).)
  • Teleconference. The directors may meet via teleconference “where a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b); See also “Teleconference Meetings.”)
  • Email. Emergency meetings are the only type of board meeting that may be conducted via “a series of electronic transmissions” such as email. (Civ. Code § 4910(b).) In order to hold an emergency meeting via email, “all directors, individually or collectively, [must] consent in writing” to hold the emergency meeting via email, and “the written consent or consents [must be] filed with the minutes of the board meeting.” (Civ. Code § 4910(b)(2).) The written consents themselves may be transmitted electronically. (Civ. Code § 4910(b)(2); See also “Email Meetings.”)

Open Meetings & Open Session

One of the primary purposes of the Open Meeting Act is to ensure that a HOA’s members have the opportunity to attend board meetings and to observe the board’s decision-making process. With the exception of executive session meetings, all meetings of the board are open to the association’s members. (Civ. Code § 4925; See also “Board Meeting Attendance Rights.”)

“Open Session”
Open meetings are often scheduled to take place either immediately before or after an executive session meeting. Because members do not have the right to attend executive session, the term “open session” is commonly used to refer to which aspect of the board meeting is open to attendance by the membership.

Open Meeting Matters
Any matter which does not constitute an executive session matter may only be discussed or acted upon by the board at an open meeting. (See “No Action Without a Meeting.”)

Notice & Agenda Requirements
Notice of open meetings must be provided to the association’s members and must include an agenda of items to be discussed or acted upon at the meeting. (Civ. Code § 4920.) In general, notice of the time and place of an open meeting 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.) However, if the open meeting “is an emergency meeting held pursuant to Section 4923, the association is not required to give notice of the time and place of the meeting.” (Civ. Code § 4920(b)(1); See also “Board Meeting Notice Requirements.”)

Frequency of Meetings
Open board meetings are often held at regular intervals (typically monthly). The required frequency of open board meetings may be dictated by the terms of the association’s governing documents (i.e., in the association’s bylaws). However, board meetings will need to be conducted on at least a monthly basis in order to satisfy the board’s financial review requirements set forth in Civil Code Section 5500, unless the Board opts to have the review performed independently of a meeting in accordance with the requirements of Civil Code Section 5501.

Calling Open Board Meetings
Unless otherwise provided in the association’s articles or bylaws, open board meetings “may be called by the chair of the board or the president or any vice president or the secretary or any two directors.” (Corp. Code § 7211(a)(1).)

Form of Meeting
Open meetings may take place in any of the following forms:

Member Attendance Rights
An association’s members are entitled to attend open board meetings and to address the board during open forum. (Civ. Code § 4925.)

Board Meeting Minutes
Corporations are required to keep written minutes of board meetings (Corp. Code § 8320.) Minutes of HOA board meetings (except executive session meetings) must made available to the members within certain time frames and in response to a member’s request for the same. (Civ. Code § 4950.) Additionally, “any matter discussed in executive session” must be generally noted in the minutes of the following open board meeting. (Civ. Code § 4935(e); See also “Board Meeting Minutes.”)

Email Meetings

Generally Prohibited
A HOA’s board of directors is generally prohibited from conducting a board meeting “via a series of electronic transmissions, including but not limited to, electronic mail.” (Civ. Code § 4910(b).) Email meetings may, however, be used to conduct an emergency meeting. (Civ. Code § 4910(b).)

“Meeting” Defined
Civil Code Section 4090(a) defines a “meeting” to include:

“[a] congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.”

Email Exchanges are not “Gatherings” of the Board
Email exchanges between board members do not constitute “gatherings” of the board:

“By sending e-mails to one another through cyberspace, often hours or days apart and from different homes and offices, the Association’s directors did not simultaneously gather in one location to transact board business, and therefore they did not conduct a “board meeting” within the meaning of [the Open Meeting Act].” (LNSU #1, LLC v. Alta Del Mar Coastal Community Assn (2023).)

“Item of Business” & Delegation
An “item of business” for the purpose of Civil Code Section 4910’s prohibition on email meetings means “any action within the authority of the Board, except those actions which 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 series of emails regarding an item/issue which has been delegated by the board to another person, officer or committee may not necessarily constitute a “meeting” for the purpose of Civil Code Section 4910’s prohibition on email meetings.

When Emailing is Permitted
Notwithstanding Civil Code Section 4910’s prohibition on email meetings, a board may communicate via email in the following circumstances:

  • Emergency Meetings – Email may be used as a method of conducting an emergency board meeting “if all directors, individually or collectively, consent in writing to that action, and if the written consent or consents are filed with the minutes of the board meeting. These written consents may be transmitted [via email].” (Civ. Code § 4910(b).)
  • Less than a Quorum – Email communications between directors comprising less than a quorum of the board would not constitute a meeting for the purpose of Civil Code Section 4910’s prohibition on email meetings. However, Civil Code Section 4910(b) prohibits a “series of electronic transmissions”—indicating that an email exchange which at first does not involve a quorum of the board, but ultimately leads to a series of emails by and between a quorum of the board, would still be prohibited. This issue of “chain meetings” is discussed further below.
  • Discussion on matters which are not “items of business”  –  Industry practice does not treat purely administrative/informational communications as “items of business” which must be acted upon by the board in a board meeting. Such communications could include scheduling meetings, providing resources of factual information, and/or requesting items to be placed on the agenda. The propriety of this practice is supported by the language in Civil Code Section 4930 that allows for administrative/informational actions to be taken at board meetings regardless of whether they appeared on the agenda that was provided with the notice of meeting. (See “Board Meeting Agenda Requirements.”) Additionally, to the extent that an action has been validly delegated by the board to another person, manager, officer or committee, that action no longer constitutes an “item of business” which the board is prohibited from discussing via email. (See “Delegating Duties & Authority.”)

Email Discussions Outside of Board Meetings are Permitted
The Open Meeting Act’s prohibition on taking action outside of a board meeting does not prohibit the Board from discussing items of business via email outside of a board meeting:

“By discussing items of Association business in e-mails… the directors did nothing contrary to the purpose of the [Open Meeting Act], because they took no action on those items in the e-mails. Although the [Open Meeting Act] prohibits the board from acting on items of Association business outside a board meeting…it does not prohibit the board from discussing the items outside a meeting.” (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)

Executive Session

One of the primary purposes of the Open Meeting Act is to ensure that an association’s members have the opportunity to attend board meetings and to observe the board’s decisionmaking process. However, there are certain items of business that involve confidential, privileged and/or sensitive information which should not be disclosed to the association’s members for a number of reasons. Civil Code Section 4935 therefore authorizes a board to meet privately in “executive session” to address specified matters, and further does not provide members with the right to attend such “executive session” meetings. (See “Board Meeting Attendance Rights.”)

Executive Session Matters
Civil Code Section 4935 specifies certain matters which may, and in some instances must, be discussed or acted upon by the board in executive session.  The following matters are those which may be discussed or acted upon by the board in executive session:

  • Legal Matters. A board may adjourn to, or meet solely in, executive session “to consider litigation.” (Civ. Code § 4935(a).) This language is broad, but is generally interpreted to include matters involving pending litigation, as well as matters which have the potential to result in litigation, in order to preserve attorney-client privilege.
  • Formation of Contracts. A board may adjourn to, or meet solely in, executive session to consider matters “relating to the formation of contracts with third parties.” (Civ. Code § 4935(a).) The Civil Code does not explicitly address whether matters “relating to the formation of contracts” allows for the board to actually vote on and execute contracts in executive session, though doing so is common practice. Once a contract has been executed by the board, the contract becomes an association record which may be inspected by members except in instances where the contract is “privileged under law.” (Civ. Code § 5200(a)(4).)
  • Member Discipline. A board may adjourn to, or meet solely in, executive session for matters involving “member discipline.” (Civ. Code § 4935(a).) However, if a member who is the subject of the disciplinary matter requests that the board meet in executive session to discuss the matter, the board is required to comply with the member’s request and to allow the member to attend the executive session. (Civ. Code § 4935(b); See also “Notice & Hearing Requirements.”)
  • Personnel Matters. A board may adjourn to, or meet solely in, executive session for “personnel matters.” (Civ. Code § 4935(a).) Personnel matters would include, but not be limited to, hiring, firing, raises, disciplinary issues, etc. that pertain to the association’s employees.
  • Payment Plans. A board may adjourn to, or meet solely in, executive session “to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.” (Civ. Code § 4935(a).) This involves discussing a payment plan with a delinquent member for the payment of the delinquent member’s assessment debt in accordance with Civil Code Section 5665. Notably, Civil Code Section 4935(b) requires the board to meet in executive session to discuss a payment plan—indicating that any such discussions must take place in executive session regardless of the word “may” contained in Civil Code Section 4935(a). (See also “Payment Plans.”)

The following matters are those which must be discussed or acted upon by the board in executive session:

  • Member Discipline Upon Member’s Request. A board must adjourn to, or meet solely in, executive session “to discuss member discipline, if requested by the member who is the subject of the discussion,” and must further allow the member to attend the executive session. (Civ. Code § 4935(b).) Additionally, when the board is to meet “to consider or impose discipline upon a member,” (i.e., to levy a fine or a reimbursement assessment), the board must notify the member of the meeting (aka the “hearing”) and such notification must contain a statement that the member has a right to attend the meeting and address the board. (Civ. Code § 5855; See also “Notice & Hearing Requirements.”)
  • Payment Plans. A board must adjourn to, or meet solely in, executive session “to discuss a payment plan pursuant to Section 5665.” (Civ. Code § 4935(c); See also “Payment Plans.”)
  • Lien Foreclosure. A board must adjourn to, or meet solely in, executive session “to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705.” (Civ. Code § 4935(d); See also “Decision to Initiate Foreclosure.”)

Notice & Agenda Requirements
Notice of executive session meetings must be provided to the association’s members and must include an agenda of items to be discussed or acted upon at the meeting. (Civ. Code § 4920.) The amount of notice varies depending upon whether the executive session is held with a scheduled open meeting, or whether the board is meeting “solely in executive session”:

  • Executive Session with Open Meeting. If the executive session is held with a scheduled open meeting, notice of the executive session and its agenda is included in the open meeting’s notice and agenda that is provided to the 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; See also “Board Meeting Notice Requirements.”)
  • Solely in Executive Session. If the board is to meet “solely in executive session” (i.e., between scheduled open meetings), the notice and agenda must be provided at least two (2) days prior to the meeting. (Civ. Code § 4920.) If a provision of the association’s governing documents requires a longer period of notice for meetings held solely in executive session, that provision does not apply “unless it specifically states that it applies” to meetings held solely in executive session. (Civ. Code § 4920(b)(3).)

Executive session matters involve confidential, privileged and/or sensitive information which are only “generally noted” in the minutes of the following open board meeting pursuant to Civil Code Section 4935(e).  Broad and generalized descriptions are typically used for executive session agenda items.

Executive Session Minutes; Items Noted In Open Meeting Minutes
Although there is no explicit legal requirement for the board to keep minutes of executive session meetings, provisions of the Corporations Code and Civil Code strongly indicate the existence of such a requirement. (See “Board Meeting Minutes.”) Notwithstanding that issue, “any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.” (Civ. Code § 4935(e).)

No Member Attendance Rights
Except in instances involving a member’s disciplinary matter or payment plan (discussed above), the association’s members are not entitled to attend executive session meetings. (Civ. Code § 4925(a); See also “Board Meeting Attendance Rights.”)

Form of Meeting
Executive sessions may take place in any of the following forms:

  • In Person. The directors may meet in person at a physical location, typically within a common area clubhouse or recreational facility. (Civ. Code § 4090(a).)
  • Teleconference. The directors may meet via teleconference “where a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b).)
  • Email (Prohibited). Email executive session meetings are prohibited except for emergency meetings. (Civ. Code § 4910(b).)

Calling Executive Session Meetings
Unless otherwise provided in the association’s articles or bylaws, executive session meetings “may be called by the chair of the board or the president or any vice president or the secretary or any two directors.” (Corp. Code § 7211(a)(1).)