Qualifications for persons wishing to serve on a HOA’s board of directors (aka “candidate qualifications”) are governed by Civil Code § 5105. Persons who do not satisfy the candidate qualifications in effect at the time of nomination are disqualified from nomination. (See “Candidate Nomination”.) The types of candidate qualifications that may or must be adopted under Civil Code § 5105 are discussed below:
Mandatory Candidate Qualification: Must be a Member
An association must disqualify a person from a nomination as a candidate if that person is not a member of the association at the time of nomination. (Civ. Code § 5105(b).) “Member” in this context means the person must be an owner of a separate interest (e.g., an owner of a Lot or Unit) within the association at the time of nomination, regardless of any contrary definition of “member” contained in the association’s governing documents. (Civ. Code § 4160.)
Directors Must Retain Membership Status in order to Serve – A sitting director who ceases to be a member must be disqualified from continuing to serve as a director. (Civ. Code § 5105(b).)
Mandatory Disqualification of “Termed-out” Directors
An association must disqualify a nominee if that person has served the maximum number of terms or sequential terms allowed by the association. (Civ. Code § 5105(b).) (*Note – this is effective as of January 1, 2024.)
Discretionary Candidate Qualifications
Through its election rules or bylaws, an association may adopt the following candidate qualifications: (Civ. Code § 5105(c))
Current in Assessments. An association may require a candidate, and a director during their board tenure, to be current in the payment of regular and special assessments, subject to the following:
Nonpayment of fines, fines renamed as assessments, collection charges, late charges or costs levied by a third party may not be used as a basis for disqualification. (Civ. Code § 5105(d).)
If the person has paid the regular or special assessment under protest, the person may not be disqualified from nomination. (Civ. Code § 5105(d)(1).)
If the person has entered into a payment plan pursuant to Civil Code § 5665, the person may not be disqualified from nomination. (Civ. Code § 5105(d)(2).)
Joint Ownership Interest. An association may disqualify a person from nomination as a candidate if the person, if elected, would be serving on the board at the same time as another person who holds a joint ownership interest in the same separate interest (same Lot or Unit) as the person, and the other person is either a candidate for the current election or is an incumbent director. (Civ. Code § 5105(c)(2).)
Member for Less than One (1) Year. An association may disqualify a person from nomination as a candidate if that person has been a member of the association for less than one (1) year. (Civ. Code § 5105(c)(3).)
Past Criminal Conviction. An association may disqualify a person from nomination if that person discloses, or if the association is aware or becomes aware of, a past criminal conviction that would, if the person was elected, either prevent the association from purchasing fidelity bond coverage required by Civil Code § 5806 or terminate the association’s existing fidelity bond coverage. (Civ. Code § 5105(c)(4); See also “Fidelity Bond Coverage.”)
IDR Offer Before Disqualification
An association may not disqualify a person from nomination if the person has not been provided an opportunity to engage in Internal Dispute Resolution (IDR) with the association. (Civ. Code § 5105(e); See also “Internal Dispute Resolution (IDR)”.)
Candidate Qualifications Must Apply to Sitting Directors
Candidate qualifications govern who is qualified to run for and be elected to the HOA’s board of directors in a director election. Director qualifications, by contrast, govern who remains qualified to continue to serve on a HOA’s board of directors. However, Civil Code Section 5105 requires that any basis used by an association for disqualifying a candidate must also apply equally to sitting directors of the association:
“If an association disqualifies a nominee pursuant to this section, an association in its election rules shall also require a director to comply with the same requirements.” (Civ. Code § 5105(f).)
Related Links
The New State of HOA Election Laws – Published on HOA Lawyer Blog (October, 2019)
Candidate Nomination
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.
Nomination Procedures
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.”) General notice of the procedure and deadline for submitting a nomination must be provided at least thirty (30) days before any nomination deadline. (Civ. Code § 5115(a).)
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 “Candidate 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”).)
Candidate Qualifications – The types of candidate qualifications an association may adopt are limited only to that which is allowed and/or required under Civ. Code § 5105 (b)-(c). (See also “Candidate Qualifications.”)
Floor Nominations
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.
Write-In Candidates
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 Links
The New State of HOA Election Laws – Article published by Tinnelly Law Group