Associations are required to adopt and adhere to election rules in connection with elections that require the use of secret ballots. Those election rules must, among other requirements, provide candidates and association members with access to association media and common area meeting spaces for purposes that are reasonably related to the election. (Civ. Code § 5105(a).)

Equal Access to Association Media
The election rules must ensure that if any candidate or member* advocating a point of view in connection with the election is provided access to association media (i.e., newsletters, websites, etc.) during a campaign for purposes that are reasonably related to that election, the association must provide equal access to all candidates and members advocating a point of view on the issue, including points of view that are not endorsed by the board. (Civ. Code § 5105(a)(1).) The association may not edit or redact any content from such communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for the content. (Civ. Code § 5105(a)(1).)

*Director Points of View & Advocacy – The term “member” has been interpreted by the California Court of Appeals to also include directors of the association (members of its board):

“…to the extent board members advocated their point of view in association media, whether expressing a personal viewpoint, or the collective viewpoint shared by a majority of the board members, the text of the equal-access provision straightforwardly applies…while in the midst of an election, the board must either give equal access to opposing viewpoints, or forego the use of association media to advocate [the board’s] viewpoint.” (Wittenburg v. Beachwalk HOA (2013) 217 Cal.App.4th 654, 664-665.)

Thus, where the board utilizes HOA media to advocate its point of view in connection with an election, it must also provide equal access to that media to any member or candidate advocating a point of view on the issue.

Equal Access to Common Area Meeting Spaces
The election rules must also ensure that access is provided to the association’s common area meeting space, if any exists, during a campaign*, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election. (Civ. Code § 5105(a)(2).)

*A “Campaign” May Pertain to Multiple Elections – The term “campaign” does not necessarily apply to a particular election. If an association holds multiple elections in short succession, and those elections pertain to the same generalized matter, the term “campaign” could encompass activities relating to the multiple elections as a collective group for the purpose of challenging the results of the election on the basis that equal access was wrongfully denied. (Wittenburg at 669.)

Violations of Equal Access Requirements; Judicial Enforcement
In an association violates the equal access requirements, a member of the association may bring a civil action for declaratory or equitable relief within one (1) year of the date the cause of action accrues. (Civ. Code § 5145; See also “Legal Challenge to Election.”) Causes of action based upon violations of the equal access requirements may also be brought in small claims court. (Civ. Code § 5145(c).)

Attorney’s Fees – If a member prevails, the member is entitled to his/her reasonable attorney’s fees and court costs, and the court may impose up to five hundred dollars ($500) for each violation. (Civ. Code § 5145(b).) By contrast, if the association prevails, it is not entitled to any of its costs “unless the court finds the action to be frivolous, unreasonable, or without foundation.” (Civ. Code § 5145(b).) However, the term “costs” does not include attorney’s fees; a prevailing association is not entitled to recover its attorney’s fees even where the court finds the action to be frivolous. (That v. Alders Maintenance Corp. (2012) 206 Cal.App.4th 1419, 1428; See also “Legal Challenge to Election.”)

Court Discretion to Void Election Results – When a court finds that an association violated the equal access requirements, or any other requirements applicable to the balloting and election procedures, Civil Code Section 5145 allows a court to void the results of the election. (Civ. Code § 5145(a).) This does not affirmatively require a Court to void the results, but rather gives the Court the discretion to do so. (Wittenburg at 667 and 670.)

Expenditure of Association Funds
Civil Code Section 5135 generally prohibits the use of association funds for “campaign purposes” in connection with board elections and other elections, subject to certain exceptions. (Civ. Code § 5135(a); See also “Association Funds in Campaigns.”) However, association funds may be used in connection with campaign communications that must be provided to comply with the equal access requirements discussed above. (Civ. Code § 5135(b)(2).)

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