Update Election Code - Hire Attorney or Not?

MW,

I believe this same issue was discussed recently. Can't remember the title of the thread.

At any rate, it isn't necessary to amend your docs to comply with Davis-Stirling. All the BOD has to do is read and understand the state law and abide by it for whatever issues conflict with your gov docs. Of course an attorney will tell you that your docs should be amended; after all it's money in his pockets.

I also agree with MaryA1. The laws continually change in California. I would worry less about your governing documents and just follow the current law.

Thank you NancyL4 for your thorough reply.
So this can be done without an attorney? That's a relief. We will distribute it to homeowners to have them vote and approve and as the president of the HOA I could get it recorded at the county - we don't need an attorney to do that. Right? I'm concerned about the last sentence below........

This is what I'm referring to......: "an attorney can simply write an amendment which states that the HOA adopts the new election code. This amendment must then be distributed to the homeowners who must vote and approve it by significant majority (either 2/3 or 3/4 as stated in the CC&Rs). The approved amendment must then be recorded. This has to happen before the special assessment vote."

Apparently, one HOA is in trouble and going to trial because they had a special assessment that was approved by the homeowners; but, the HOA had not previously filed an amendment adopting the new election code.
MW

MW,

The assn you refer to is not having legal problems because they did not amend their docs to include the new election code, but rather because they perhaps didn't follow the new law.

As I stated earlier, and Nancy agreed, you do NOT need to amend your bylaws or CCRs (wherever your election articles are located) to adopt this new election code. Why go through all the hassle of calling a meeting, sending out ballots and hoping you get the required number of votes, which is usually a big problem? If the BOD were to call for an amendment to the docs each time a new state law is enacted you could be going through this process on a yearly basis. This is totally unnecessary!!! But if you really insist, then why aren't you including all the other state laws in the amendment? I'm sure there are many that are in conflict with your gov. docs.

We did a formal amendment to our bylaws and did send it out for a vote to our members. However, as Mary suggested, this is not necessary since it is a rule change required by the law. You can simply adopt an elections policy which is not required to be sent to the members for a vote. You should have a rules and regulations document which allows the board to make changes to comply with the law. Here's some of the language we use in our rules and regulations.

The following Rules and Regulations flow from, supplement, and clarify provisions found in the Declaration of Covenants, Conditions and Restrictions (CC&Rs), Bylaws, and applicable federal, state, and local law. It is not the intent for these Rules and Regulations to substitute for the CC&Rs, Bylaws, or applicable law. The rules outlined in this document are not all inclusive, thus this document should not be taken solely as the Governing Document.

To the extent that provisions of applicable law, the CC&Rs, the Bylaws, or the Rules and Regulations conflict, the provisions of applicable federal, state, and local law shall first control, followed by the CC&Rs, the Bylaws, and the Rules and Regulations, in that order.

The Rules and Regulations herein may be changed or added to at any time by the Board of Directors in accordance with the XX Association Bylaws, Article XX. Powers and Duties of the Board of Directors, Section XX; and with the XX Association CC&Rs, Article XX. Duties and Powers of the Association, Section XX.