NEW 51% RULE

Here in California our board recently enacted a new 51% rule. What that means is, we now need 51% of all homeowners to vote or the board will remain the same, without even opening any ballot envelopes. We have 296 homeowners and I'm just wondering if that's perfectly legal?

It sounds like you are saying that you need 51% to reach quorum? It is technically possible for a board to continue serving until the next annual meeting without reviewing ballots (https://findhoalaw.com/failure-to-achieve-quorum/). However, there is also a law that allows HOAs to reduce quorum to 20% if it cannot be reached the first time. https://www.sandiegouniontribune.com/2023/10/21/hoa-homefront-good-news-in-2024-for-hoas-reduced-quorums/

And remember to be valid and enforceable, a rule can’t conflict with the declaration. If it does conflict on those topics, only the membership can vote to amend it, not the board.

TerriS6 and I disagree on this reading of California statutes. If a Declaration section (or bylaw) conflicts with state statutes, and the rule is designed to ensure the HOA complies with statutes, by my reading of the statutes the rule is valid and enforceable.

At this time we do not know what the bylaws and declaration say. Until we do, I hope this thread is not hijacked by digressing into this topic.

JerryJ4, if your board refuses to hold a legal election, you can file a claim in small claims court for any violation of election law (Civil Code sections 5100-5145. See 5145 regarding enforcement). Unfortunately, some boards will try every possible trick to stay in power.

Jerry, way, waaaaaay too much missing info. Please:

1. Provide the exact wording in the Rule. AND--Did it come owners by email, or?

2. Provide the exact wording of the Rule in the open Board meeting minutes when the "Rule" was approved by the Board with its vote*.

3. Provide the exact wording in your HOA's Election Rules about the % of votes required to establish quorum to elect directors. Your Election Rules were required to be revised in 2020.

4. If the number of votes to establish quorum is not in your Election Rules, cite that number as found most likely in your Bylaws.**

5. Note Marshal's good contribution. Read it.

*In CA HOAs, the board must discuss a proposed "rule" at an open Board meeting and, next, it MUST send the proposed rule and its PURPOSE to all owners for a 28-day comment period. The, proposed rule is on an open meeting agenda again and the Board has the written comments and also must accept verbal comments from owners on it before it votes to approve or disapproved the rule.

** That number to establish quorum might possibly be in your CC&Rs, or, even less likely, in your Articles of Incorporation.

Jerry, on Terri's list, see "To be enforceable the rule had to have been (d) ".... adopted, amended....in good faith and in substantial compliance with the requirements of this article."

So, before any CA board may demand owners follow a rule, it FIRST MUST: CA Civil Code § 4360. Notice and Approval of Rule Change by Board.... 

(a) The board shall provide general notice ...of a proposed rule change at least 28 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. ......

(b) A decision on a proposed rule change shall be made at a board meeting, after consideration of any comments made by association members."

That is why I ask for info on any board meeting meetings that show this rule was approved by the Board. THEN, I feel,I and perhaps others too, would be in a position to offer advice.

I agree.

Our docs called for 51% of all owners to accomplish a quorum. Our first and last voted Bylaw change was to set quorum at 20%. It passed.