Q: If the association bylaws state that a director can only be removed by a 51% of the membership, can that bylaw be nullified by recent legislation? — MW, Chowchilla.
A: Your question refers to the new law in effect this year, which allows a reduction of HOA member quorum if the HOA fails to achieve quorum on the first attempt.
“Quorum” is the minimum number of participating members required to allow a membership decision to be made. If the HOA fails on its first attempt to meet the quorum required by the bylaws, it may under Civil Code 5115, reconvene a second attempted meeting for director elections with quorum reduced to 20% of all members.
This reduction of quorum only applies to director election. Votes for assessment increases, removal of directors, or other membership votes do not qualify for the statutory reduction in quorum. So, your HOA bylaws do not conflict with the new law.
Q: The AB 2460 (2024) clean-up bill appears not to have cleaned up the previous bill. The new text says: “the quorum of the membership to elect directors will be 20 percent of the associations members.” Many HOAs provide one vote per separate interest, such as our own. Normally that is referred to as the “voting power.” A little over half our HOA membership consists of properties with multiple owners. So, that increases the voting power, correct? Is this how you read the clean-up bill? — JH, Manteca
A: Even if there are multiple owners of a given home, that membership is counted as one member. So, the total number of members is still going to be the number of separate properties (apart, of course, from any HOA owned or common area plots).
The changes Assembly Bill 2460 made to Civil Code 5115 regarding elections are primarily clarifying and do not make any substantive changes to the election processes.
The term “voting power” is not found in Civil Code 5115, and the term is no longer useful since all members have the right to vote per Civil Code 5105(h) and 5115(c). The term used to refer to the number of active members who have not had voting rights suspended, but that suspension is no longer permitted.
Q: As you know AB 1458 (2023) created a vehicle for automatic quorum reduction for Davis-Stirling HOAs (CIDs). Unfortunately, non-Davis-Stirling HOAs have no such luxury and one of the only routes to lowering quorum without amending by laws is still Corp Code 7515. Do you think that given what happened on the CID side with AB 1458, a complaint filed under Corporations Code 7515 would be more likely to succeed- the argument being that the Legislature is showing its intent/opinion that lowering quorums and allowing those members who vote to decide outcomes is preferable to maintaining a high quorum? — BP, Rancho Palos Verdes.
Q: Yes, Corporations Code 7515 allows a court motion to be filed to relieve quorum requirements, regardless of whether the corporation is a common interest development. So, a former HOA with expired CC&Rs could invoke that law. That statute also sometimes allows HOAs to get amended by laws passed when there is difficulty attaining a bylaw-prescribed supermajority of votes.
Kelly G. Richardson CCAL 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. Send column questions to Kelly@roattorneys.com.