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MarieK2 (California)
Posts: 4
Posted:
A group of homeowners prepared a petition for a special meeting. The petition and signatures were delivered via Federal Express to the 3 board members at their respective homes. The original to the president and copies to the treasurer and secretary. Due to Covid, FedEx is not using the electronic signature pad. The proof of delivery shows all three beginning delivered but no signatures. The boards normal mode of operation is to ignore all requests. We haven't heard from them and I'm wondering if we have a valid petition if they all claim they didn't receive it. Has anybody else dealt with the lack of signatures on documenting receipt of petitions?
AugustinD
Posts: 5,144
Posted:
I see that the Board, upon receiving the petition for a Special Meeting, is supposed to set the date (and also comply with notice requirements). See https://www.davis-stirling.com/HOME/Special-Meetings

I suggest you send the petition registered mail, return receipt requested, to the registered agent of the HOA. The registered agent can usually be found on the Secretary of State's web site, under corporations.
MarieK2 (California)
Posts: 4
Posted:
We aren't under Davis-Stirling. The registered agent on record is no longer valid so the petition went to the existing board members. My question relates to the lack of signatures on the proof of delivery. Has anyone had a similar issue and what was the resolution?
AugustinD
Posts: 5,144
Posted:
Quote:
Posted By MarieK2 on 08/19/2020 5:27 PM
We aren't under Davis-Stirling.
Is your HOA a corporation? If so, and if you had looked at the link I provided, you would see that the California Corporations Code applies, and the Board sets the meeting date.

You document everything you did to give the board members their petition, in preparation for going to court. Include documentation that there is no registered agent (when the California Corporations Code undoubtedly requires one). You can have someone hand deliver the petitions and then prepare a three sentence affidavit attesting to same.

You can also send the petitions registered mail, return receipt requested. Even if the board refuses the mail, you will have documentation that they did so. This counts in court.

If this is not helpful to you, no worries. I post for the archives.
JohnM95 (Texas)
Posts: 24
Posted:
My experience with something similar - the need to prove delivery - is not HOA-related. It is related to work I've done, in the realm of government agencies delivering notices to individual persons.

My understanding is that sending something certified/delivery confirmation via USPS is considered proof of delivery (assuming they provide the confirmation), even in the absence of a signature. The process, as I understand it, involves the fact that the USPS is government-sponsored, and people are expected to keep their address up-to-date etc.

It seems to me this would serve your purpose.

That being said, I'm believe it wouldn't suffice for things like serving lawsuit or subpoena papers.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Why are you sending this FedEx? You send these things certified mail via the post office. Delivering so can have a signed receipt is different than a certified letter signature. Plus if they do not respond to the letter you do NOT open it! It is proof the letter was delivered and rejected. A FedEx delivery doesn't do that. Plus don't think court system views that as a legal notice.

Former HOA President
JohnC77 (California)
Posts: 562
Posted:
The post office hasn't been raliable for the past two year or year in getting signatures on return receipts especially in condos with cluster boxes. Since COVID-19, UPS, Fed Ex and the post office don't obtain signatures.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
A certified letter is different than regular mail. It is more of a "legal" document. They do require signatures as proof of delivery. That is why they are used for legal purposes to show delivery. One has to show rejection. The letter if not picked up goes back to the sender. Other mail can just sit there forever once delivered.

Former HOA President
MartyS5 (Georgia)
Posts: 23
Posted:
Just curious, why are they calling a special meeting? Our bylaws only permit a special meeting to recall officer/s. They cannot be called to discuss Board Decisions.

_________________

Former HOA President
JohnC77 (California)
Posts: 562
Posted:
It can be called for any reason as long as it is stated on the petition.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By JohnC77 on 08/21/2020 8:20 AM
It can be called for any reason as long as it is stated on the petition.

This is how I understand it. The reason/action must be clearly stated. It cannot be a general bytching session.
JohnC77 (California)
Posts: 562
Posted:
Quote:
Posted By MartyS5 on 08/21/2020 7:23 AM
Just curious, why are they calling a special meeting? Our bylaws only permit a special meeting to recall officer/s. They cannot be called to discuss Board Decisions.

_________________

Former HOA President

Unless you have VERY special Bylaws, officers are not recalled by the membership, but directors are.
MarieK2 (California)
Posts: 4
Posted:
After several calls to FedEx, I was told the current procedure to deliver "signature required" packages is for the driver to verbally verify the person taking the item and put their initials on the signature line of their electronic pad. In my case, the 3 envelopes went to 3 different addresses and the initials on the POD were similar but different and not related to any of the recipients. The customer service department talked to the driver's manager who talked to the driver. He claimed he had dropped his electronic pad so only certain keys worked hence the limited initials. The customer service manager emailed me a statement that the driver verbally verified the recipient on all 3 tracking numbers. Our attorney, who specializes in CIDs, says it is an acceptable proof of delivery if we go to court. Beware, if you call FedEx, you might have to hang up on a couple agents before you get one that is willing to work with you.
In the future, I'm going to be very careful about how I send documents that need signatures.
For those asking about the petition, our bylaws allow for members to call a special meeting for any reason with 5% of members requesting the meeting. This one happens to be for a total recall of the board which is why I am so concerned about documenting delivery.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Marie

Your chances of recalling the entire BOD are slim to none especially without legal advice. Experience says you and the others that think as you do should work to replace the present BOD Members at Annual Election time.

One thing to be careful of os if the BOD Members were elected by owners, it will take at least 51% OF ALL OWNERS agreeing to a recall. I repeat, 51% OF ALL OWNERS. Are you sure you can get the 51?
MarieK2 (California)
Posts: 4
Posted:
With all due respect, you haven't read our bylaws and, as I stated, we do have counsel who specializes in CIDs. We don't need 51% of members to recall and replace the board. One of the reasons for the petition is to ensure there is an election in the near future. If the board doesn't conduct it, the members will be entitled to manage the election. My question related only to deliver of documents, I don't have questions regarding our recall. Thanks for all the suggestions. I don't need to continue this thread, I'm happy with the resolution.
AugustinD
Posts: 5,144
Posted:
The mystery of why the OP's HOA is not subject to California's Davis-Stirling statute, and whether it is a corporation, with certain legal powers reserved to the membership and HOA alike, remains.

Maybe the HOA has no common area. In which case the board's only responsibility in theory could be enforcing covenants pursuant to common law.

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