Q: My HOA bylaws include a section that specifies that the board is required to form a “Nomination Committee” at each annual meeting of the association. The requirement has been ignored for at least five or more years in spite of requests by a few members. Consequently, the board continually consists of a small group of members that support each other. What can be done by a member to force compliance with the section of our bylaws? — MW, Chowchilla
A: Before 2020, California HOAs used a variety of different board eligibility standards, because the Davis-Stirling Act didn’t specifically address the subject. Some HOAs required candidates to have no unresolved violations or unpaid fines, and others required candidates to live within the association. Other HOAs banned candidates who were in active litigation with the HOA or who refused to sign a board code of conduct.
All of that changed in 2020, when amendments to Civil Code Section 5105 added one mandatory eligibility standard (HOA membership) and added several optional board eligibility standards which HOAs could include in their election rules or bylaws. HOAs can require that candidates be current in their assessments or that candidates be a member of the HOA for at least one year.
They also can disqualify candidates who have a felony conviction that would prevent the HOA from obtaining dishonesty insurance or whose co-owner already serves on the board. Most HOA lawyers agree that these four optional eligibility standards are an exclusive list, meaning that HOAs no longer can come up with their own creative eligibility requirements. That list was expanded in 2022 when a fifth optional standard, term limits, was added to Civil Code Section 5105(b).
Even though many HOA bylaws still reference nominating committees, the adoption of this short list of eligibility options leaves little for such committees to do. If a candidate is a member of the association, and if the HOA adopted all five of the optional eligibility criteria, a nominating committee would only be able to determine if a candidacy was barred by any of those five requirements.
Since Civil Code Section 5105(a)(3) specifically allows members to nominate themselves, once the “call for candidates” is issued there is really nothing for a nominating committee to do. Civil Code Section 5103(d)(1) requires that all candidates be allowed to run if nominated, so long as they aren’t disqualified, so the committee has no decisions to make. Consequently, HOA nominating committees are no longer useful. Most of my HOA clients delete the nominating committee requirement from their bylaws when updating that document.
Some HOAs allow for nominations from the floor or write-in votes, which further reduces the usefulness of nominating committees. My view is that nominations from the floor or write-in candidates violate the purpose of Civil Code Section 5115(b), which requires the names of all candidates to be announced at least 30 days before ballots are distributed.
M.W., any eligible member can put their name into nomination during the 30 day nomination period required by Civil Code Section 5115(a). So, if your community wants new blood on the board, get volunteer applicants who will garner broad member support – and elect them!
The official site of the Davis-Stirling Act – leginfo.legislature.ca.gov (Civil Code 4000-6150).
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit questions to Kelly@roattorneys.com.