California Civil Code §§ 4340 · 4350 · 4355 · 4360 · 4365

Adopting the election rules

Election rules are operating rules, so adopting or changing them runs on the Davis-Stirling rule-change procedure rather than on a board vote. That procedure is where the earliest deadline in an election comes from — and it is the one most associations discover too late.

Why this page exists

Section 5105(a) does not merely say an association must have election rules. It says the association shall adopt them in accordance with the procedures prescribed by Article 5 (commencing with Section 4340). That cross-reference is doing a great deal of work, and it is easy to read past.

It means a board cannot decide in February to vote electronically in April. The rule permitting electronic ballots has to go through notice, a comment period, an open meeting and a second notice — and then stay exposed to reversal by the members for another month. Our deadline calculator puts the first deadline at 148 days before the annual meeting; this is the arithmetic behind that number.

The procedure, in order

1. General notice, at least 28 days before the board may act. The notice must carry the text of the proposed rule change and a description of its purpose and effect — not a summary, and not an agenda line saying rules will be discussed. It goes out as general notice under § 4045.
2. A decision at a board meeting, after the board has considered any comments members made. The 28 days exist to produce those comments; a board that collects none has still had to wait.
3. General notice again, within 15 days of making the change. Not "as soon as practical" — § 4360(c) says as soon as possible and in no event more than 15 days.
4. A 30-day window in which the members may move to reverse it. Members owning 5 percent or more of the separate interests may deliver a written request, and § 4365(b) gives them 30 days from that notice to do it. The association then holds the vote between 35 and 90 days after the request.

What counts as an operating rule

Section 4340 defines an operating rule as a regulation adopted by the board that applies generally to the management and operation of the development or to the conduct of the business and affairs of the association. A rule change is the adoption, amendment or repeal of one.

Not every operating rule goes through the notice procedure, though. Section 4355 lists the seven subjects that §§ 4360 and 4365 reach, and the last of them is procedures for elections. That is the hook: election rules are inside the list, so the notice-and-comment procedure and the member reversal right both apply to them.

The same section lists what the procedure does not reach — maintenance decisions, decisions on a specific matter not meant to apply generally, setting an assessment, and a rule change required by law where the board has no discretion over its substance. A board that believes AB 2159 obliges it to adopt an electronic voting rule should read that fourth exception carefully: the Act permits electronic voting, it does not require it, so the discretion is the board's and the procedure applies.

What makes a rule valid

Section 4350 sets five requirements, and a rule failing any one of them is not enforceable:

• In writing.
• Within the authority of the board conferred by law or by the declaration, articles or bylaws.
• Not in conflict with governing law or with those documents.
• Adopted, amended or repealed in good faith and in substantial compliance with the requirements of this article — that is, with the § 4360 procedure above.
• Reasonable.

The emergency exception, and its limit

Section 4360(d) lets a board make a rule change with no notice at all where it determines an immediate change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss.

An emergency rule expires after 120 days, and — the part that matters — it may not be readopted under the same subdivision. The exception cannot be used twice on the same problem, which rules it out as a route to an election. An association that discovers in March that it has no election rules has not discovered an emergency; it has discovered a deadline it already missed.

Reversal by petition

Members owning 5 percent or more of the separate interests may call a special vote to reverse a rule change. The written request has to arrive within 30 days of the association's notice of the change, and the vote is then held not less than 35 nor more than 90 days after the request. A majority of a quorum reverses it.

One more consequence: a rule change reversed this way may not be readopted for one year from the date of the reversing vote — § 4365(f). The board may adopt a different rule, but not the same one. Losing this fight costs the cycle, not the week.

Related

• § 5105 — what the election rules must contain, and the cross-reference that leads here.
• How notice reaches a member — §§ 4040 and 4045, the delivery this procedure depends on.
• Deadline calculator — the dates, counted back from your meeting.
• § 5145 — why the version of the rules that applied has to be retained.