Tag Archives: Board of Directors

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)

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).)  

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).)

Board Meetings (Generally)

Meetings of an association’s board of directors are governed by the Open Meeting Act found within the Davis-Stirling Act.  The Davis-Stirling Act defines a “board meeting” as either:

  • A congregation of a quorum of the board, at the same time and place, to “hear, discuss, or deliberate upon any item of business that is within the authority of the board.” (Civ. Code § 4090(a).) or
  • A teleconference where a quorum of the board, in different locations, “are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b).)

Thus, board meetings may take place either in person, or via teleconference.  Meetings via email are generally prohibited except in circumstances involving emergency meetings.  (Civ. Code § 4910(b).)

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).)

No Action without a Meeting
The Open Meeting Act prohibits boards from taking actions on items of business outside of a board meeting.  (Civ. Code § 4910; See also “No Action without a Meeting.”)

“Items of Business” & Delegation
The Davis-Stirling Act defines an “item of business” to mean “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 (i.e., the review/approval of architectural applications is often delegated to an “architectural committee”).

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).)

Types of Board Meetings
The types of board meetings include (a) open board meetings, (b) executive session meetings, and (c) emergency meetings.  The type of meeting being held impacts:

Related Links

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

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

Open Meeting Act

HOA board meetings are governed by the “Common Interest Development Open Meeting Act” (“Open Meeting Act”) found at Civil Code Sections 4900 through 4955.  The provisions of the Open Meeting Act contain requirements that:

Related Links

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

Rule of Judicial Deference

The liability protections afforded to a corporation’s directors include a legal doctrine known as the “Business Judgment Rule.”  In the context of HOAs, the California Supreme Court in the case of Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249 adopted a rule which it termed as analogous to the Business Judgment Rule: the “Rule of Judicial Deference.” The Rule of Judicial Deference (aka “Business Judgment Doctrine”) generally requires courts to defer to maintenance decisions made by HOA boards even if a reasonable person would have acted differently in the same situation:

“Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 253.)

The justification for such deference is premised upon “the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments.” (Lamden, at 270-271.)

The Rule of Judicial Deference has been touched upon in numerous HOA cases, including the landmark case of Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 361:

“Generally, courts will uphold decisions made by the [board] so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.” (Nahrstedt, at 374.)

So long as the board acts in accordance with its duties, in good faith, and in a manner it believes to be in the best interests of the association and its members, its decision will generally be upheld. (Lamden, at 265; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal. App. 4th 965, 979.) Courts generally afford boards with the presumption in favor of their actions being taken in good faith. (Beehan v. Lido Isle Community Assn. (1977) 70 Cal. App. 3d 858, 865: (…“Every presumption is in favor of the good faith of the directors. Interference with such discretion is not warranted in doubtful cases.”).)

Limitations on Judicial Deference
The Rule of Judicial Deference does not necessarily extend to every action (or decision not to act) that the board may take. Notably, the rule set forth in Lamden was tied solely to board decisions concerning “ordinary maintenance”:

“The precise question presented, then, is whether we should in this case adopt for California courts a rule-analogous perhaps to the business judgment rule-of judicial deference to community association board decisionmaking that would apply, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 260.)

The California Court of Appeal has stated the importance of noting “the narrow scope of the Lamden rule. It is a rule of deference to the reasoned decisionmaking of homeowners association boards concerning ordinary maintenance. It does not create a blanket immunity for all the decisions and actions of a homeowners association. The Supreme Court’s precise articulation of the rule makes clear that the rule of deference applies only when a homeowner sues an association over a maintenance decision that meets the enumerated criteria.” (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930, 940.)

Notwithstanding the Court’s reference to the “narrow scope of the Lamden rule,” the Rule of Judicial Deference is still being expanded in the wake of the Affan holding. In the 2015 case of Watts v. Oak Shores Community Association, the California Court of Appeal touched on the Affan holding, noting that its articulation of the Lamden rule “gives ‘deference to reasoned decisionmaking of homeowners association boards concerning ordinary maintainenace.’…[b]ut there is no reason to read Lamden so narrowly. In fact, courts have given deference to board decisions that do not concern ordinary maintenance. Thus, for example, in Dolan-King v. Rancho Sante Fe Assn. (2000) 81 Cal.App.4th 965, 979, the court gave deference to an association board’s decision denying an owner’s application for a room addition on aesthetic grounds.” (Watts v. Oak Shores Community Assn. (2015) 235 Cal.App.4th 466, 473.) The Court in Watts ultimately upheld an association’s ability to adopt reasonable rules and impose fees on members relating to short-term rentals of condominium units. At the heart of the Watts holding was the Court’s belief that “common interest developments are best operated by the board of directors, not the courts.” (Id.) This was reiterated in Eith v. Ketelhut (2018) 31 Cal.App.5th 1, where the Court deferred to a board’s decision that a homeowner’s growing of grapes on his property for the cultivation of wine did not affect the residential character of the community and was therefore not prohibited business activity under the CC&Rs.

However, there are various decisions that a board may make to which the Rule of Judicial Deference may not necessarily apply, including:

Scope of Liability Protection
The Rule of Judicial Deference “provides protection from personal liability for the individual directors of a non-profit homeowners association. It does not follow and is not true that the same rule of judicial deference will also automatically provide cover to the [association] itself. There is a difference between the standard of care, which is a reflection of the duty expected of decision makers, and the judicial deference rule, which is a modified standard of review for determining whether the actual decisions-makers will be held liable for their poor decisions.” (Ritter & Ritter v. Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 125.)

Related Links

“Expanded Scope of ‘Judicial Deference’ – Authority to Impose Short-term Renter Fees” – Published on HOA Lawyer Blog (April 13, 2015)

Courts Will Defer to the Decisions of Boards Based on Good Faith and Regard for the Best Interests of the Community
– Published on HOA Lawyer Blog (March 2019)

Delegating Duties & Authority

An association’s board of directors generally has the power to “delegate the management of the activities of the [association] to any person or persons, management company, or committee however composed, provided that the activities and affairs of the [association] shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.” (Corp. Code § 7210.) Because of the limitations placed on the board’s ability to conduct association business (i.e., the prohibition on actions without a meeting), as well as the fact that directors serve in the capacity of unpaid volunteers, a large portion of the board’s duties, powers and authority in managing the association are often delegated to other parties such as the association’s managing agent or committees of the association that assist with the association’s day-to-day operations.

Non-Delegable Duties
There are certain duties and powers of the board which may not be delegated to other persons, either as a result of an explicit legal requirement and/or in order to avoid liability. Those non-delegable duties generally include:

Delegating “Items of Business”
The “Common Interest Development Open Meeting Act” (“Open Meeting Act”) is codified at Civil Code Sections 4900 through 4955. One of the Open Meeting Act’s provisions prohibits HOA boards from “tak[ing] action on any item of business outside of a board meeting.” (Civ. Code § 4910(a) (Emphasis added).) Because of the various notice requirements applicable to board meetings, this “no action without a meeting” requirement may inhibit the board’s ability to act on time-sensitive matters or other issues that arise between the board’s scheduled meetings.

The term “item of business” used in Civil Code Section 4910 is significant.  “Item of business” is defined as:

“…any action within the authority of the board, except those actions that 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).)

The ability to delegate certain board actions to the association’s managing agent or a committee of the association (i.e., an architectural committee, construction committee, etc.) is thus a common tool utilized by boards to circumvent the “no action without a meeting” requirement.

Parliamentary Procedure & “Robert’s Rules”

Parliamentary procedure is a body of rules, ethics and customs used to govern meetings of organizations, legislative bodies, clubs and other deliberative assemblies.  As discussed below, a homeowners association’s adherence to a system of parliamentary procedure is a legal requirement solely in the context of membership meetings. (Civ. Code § 5000(a).)

Robert’s Rules of Order
The most widely adopted system of parliamentary procedure by private organizations is Robert’s Rules of Order (“Robert’s Rules”). Robert’s Rules was first published in 1876 by U.S. Army Colonel Henry Martyn Robert and is currently in its eleventh edition. Robert’s Rules and related resources may be found online.

Board Meetings & Committee Meetings
There is no statutory requirement that an association’s board meetings or committee meetings be conducted in accordance with a system of parliamentary procedure such as Robert’s Rules. Associations typically refrain from doing so in order to avoid onerous and unreasonable formalities (i.e., requiring directors to “obtain the floor” before making motions or speaking). Boards and committees typically utilize more flexible procedures, unless otherwise required by the association’s governing documents.

Membership Meetings
Adhering to a system of parliamentary procedure often only becomes a legal necessity in the context of an association’s membership meetings:

“Meetings of the membership of the association shall be conducted in accordance with a recognized system of parliamentary procedure or any parliamentary procedures the association may adopt.” (Civ. Code § 5000(a).)

While there are various systems of parliamentary procedure which may be utilized by an association, Robert’s Rules is the most common.

**NOTE – Various topics categorized under the icon_member-meetings MEMBER MEETINGS & ELECTIONS area of this website may include references to procedures contained within Robert’s Rules. Those procedures may not apply to an association that uses a different system of parliamentary procedure.

Director Qualifications

There is no law that explicitly establishes qualifications for persons wishing to serve on an association’s board of directors. There may be qualifications established in provisions of an association’s governing documents—typically in its bylaws. However, those provisions often include language that merely “encourages” adherence to stated qualifications, rather than making them mandatory requirements. Where director qualifications are entirely absent from an association’s governing documents, there may be circumstances where any person (i.e., non-owners, tenants, etc.) may be eligible to serve as a director and ultimately elected to the board.

Adopting Director Qualifications
In order to make adherence to specific director qualifications mandatory, an association may be required to formally amend its bylaws or its election rules. The limitations and requirements applicable to doing so will depend upon various factors, such as the nature/purpose of the desired qualifications and the language already contained within the governing documents.

Amending the Bylaws
An association’s bylaws may be amended according to the procedures and voting requirements contained within the bylaws. Bylaw amendments to incorporate director qualifications will often require membership approval through a formal election utilizing secret ballots. (See “Amendments to Bylaws” and “Elections Requiring Secret Ballots.”) Where a director ceases to meet required qualifications in effect at the beginning of the director’s current term of office, Corporations Code Section 7221(b) allows the board to declare the director’s seat vacant. (See also “Removal & Recall of Directors.”)

Director Qualifications vs. Candidate Qualifications
Director qualifications govern who remains qualified to continue to serve on a HOA’s board of directors. Candidate qualifications, by contrast, govern who is qualified to run for and be elected to the HOA’s board of directors in a director election.

Candidate Qualifications within Election Rules
Associations are required to adopt election rules that comply with the requirements set forth in Civil Code Section 5105. (See “Election Rules.”) Election rules are “operating rules” that may be adopted and amended by the board without membership approval. For information on the types of candidate qualifications that may or must be adopted as part of the election rules under Civil Code § 5105, see “Candidate Qualifications.” Persons who do not satisfy the candidate qualifications in effect at the time of nomination are disqualified from nomination. (See “Candidate Nomination”.)

“Reasonable” Director Qualifications
Once adopted, director qualifications may be enforced provided that they are “reasonable.” Reasonableness is determined by whether the qualification is rationally related to the protection, preservation or proper operation of the association. (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670.)

Director qualifications that are commonly adopted by associations include:

  • Being a member of the association
  • Being in “good standing” (i.e., not in violation of the governing documents, delinquent in assessments, etc.)
  • Not involved in litigation with the association
  • Attending a minimum number of board meetings as a director
  • Not having a familial relationship with another sitting director
  • Not being a co-owner with another sitting director
  • Not a convicted felon