California Civil Code §§ 4035 · 4040 · 4041 · 4045

How notice reaches a member

Every election deadline is a delivery deadline. The Act says a notice must be given a certain number of days before something happens, and then defines, elsewhere, what giving it means — individually or generally, to which address, and with what proof. Those definitions are where elections quietly fail.

Two kinds of notice, and the Act means a different thing by each

Individual notice is addressed to one member. General notice is given to the membership at large. Each election deadline names one or the other, and substituting the cheaper one for the one the statute names is a defect even where everybody in fact heard about it.

• § 5115(a) and (b) call for general notice — of the nomination procedure and deadline, and of the election particulars 30 days before ballots go out.
• § 5115(b)(5) adds individual delivery of those same particulars to the members who have asked for individual notice — not to everyone. Which is why the association has to know who those members are before the notice goes out, not after.
• § 5105(i)(3) and (i)(4) call for individual notice of electronic voting and of the opt-out deadline.
• § 4360 calls for general notice both before and after a rule change.

Individual delivery follows the member, not the association

Section 4040 was rewritten by SB 392 and became operative in 2023. The order it sets is strict: the association delivers in accordance with the preferred delivery method specified by the member under § 4041. Only if the member has not provided a valid method does the association fall back to first-class, registered, certified, express or overnight mail to the address last shown on its books.

Email is therefore not a thing the association may choose. It is a thing the member elects. An association that emails ballots to everyone with an address on file, because having the address felt like permission, has not delivered individual notice to the members who never elected it.

The annual solicitation, and why records are stale

Section 4041 puts the duty on the member to tell the association, once a year, their preferred delivery method, a secondary method, the contact details of any legal representative, and whether the unit is owner-occupied, rented, vacant or undeveloped land.

It also puts a duty on the association: it shall solicit those notices and enter the data in its books at least 30 days before its own annual disclosures. The solicitation must tell the member that they do not have to give an email address at all, and must offer a simple way to change the preference in writing.

Where no notice comes back, § 4041(c) fixes the fallback: the last mailing address the member gave in writing, or failing that, the property address. Which is the honest explanation for why a portion of every association's roll is out of date — the statute anticipates it and gives a default rather than a remedy.

General notice has five permitted forms

Section 4045 lets the association give general notice by any method good enough for individual delivery, or by inclusion in a billing statement or newsletter, or by posting in a prominent physical location, or through association television programming, or by posting on the association's website.

The last two carry a condition that is easy to miss: the location — physical or online — has to have been designated for the posting of general notices in the annual policy statement under § 5310. An association that posts an election notice on a website it never designated has not given general notice, however visible the post was.

Delivery in the other direction

Section 4035 covers documents going the other way: from a member to the association. First-class, registered or certified mail, express mail or overnight carrier to the address the association has designated in its annual policy statement — or, where the association has not designated one, to any address at which business is conducted. Email, facsimile or other electronic means count where the association has agreed to them.

This matters because the member requests that carry legal effect have to arrive, and § 5260 requires seven of them to arrive in writing under this section — including the opt-out from electronic voting. A request that was sent to a route the association never designated has not been delivered, and the 90-day cut-off in § 5105 does not pause for it.

What the record has to show

1. Which notice was which. General and individual are different obligations with different proofs; a log that records "notice sent" cannot answer the question that gets asked.
2. Per member, for individual notice: the method on file under § 4041, what was sent, where, on what date, and what evidence exists that it went.
3. For general notice: which of the five methods was used and — for a posting — that the location was designated in the annual policy statement then in force.
4. The requests that changed any of it, retained as the member sent them, with their arrival dates. See § 5260.
5. The roll as it stood at the record date, since § 4041(c)'s fallback means the address used may be neither what the member would choose nor what the association would prefer.

Related

• Adopting the election rules — the § 4360 procedure that runs on general notice.
• § 5115 — which election notices are general and which are individual.
• § 5260 — the seven member requests that only take effect in writing.
• Hybrid elections — what the delivery split does to an election.