HOAs, if You Give Only ONE Side of an Election Issue the Opportunity to Advocate on Its Behalf, the Court May Overturn Your Election!
By Jeff Cluett, Esq., Law Offices of Ann Rankin
(a) An association shall adopt rules, in accordance with the procedures prescribed by Article 4 (commencing with Section 1357.100) of Chapter 2, that do all of the following:
(1) Ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet Web sites during a campaign, for purposes that are reasonably related to that election, equal access shall be provided to all candidates and members advocating a point of view, including those not endorsed by the board, for purposes that are reasonably related to the election. The association shall not edit or redact any content from these communications, but may include a statement specifying that the candidate or member, and not the association, is responsible for that content.
(2) Ensure access to the common area meeting space, if any exists, during a campaign, at no cost, to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election.
Second, by advocating its viewpoint and failing to allow opposing viewpoints, the board violated Section 1363.03(a)(2). The board advocated for the amendment by letters, attachments to letters, website, newsletter, and bulletin board. Yet it refused to allow opponents to use media such as the clubhouse and the common area to voice their opposition. The board therefore violated Section 1363.03.
Oddly, despite these findings, the court did not overturn the third election. Rather, it returned the case to the trial court to determine whether the violations of 1363.03(a)(2) should be considered in deciding whether to void the third election.
Why should you care? Because elections are time-consuming, expensive, and contentious! You do not want your election results overturned. So what do you do?
First, if the board wants to advocate for the passage or defeat of an amendment, it must allow its opponents access to the same media – common areas, websites, newsletters, etc.
Second, if anyone wants to use association resources to advocate their position, the board must decide whether to let them. If the board decides not to, then it does not need to allow the other side to do so. However, if it does allow such access, then the board must allow the other side access as well. If it does not, then it risks having its election results overturned.