Real Estate & Property Law

How Many Votes Does An Owner Get For A Board Election?

Here is a very common question, that seems simple to me, but is not clearly understood by the average person in an HOA (sent by a reader):

"We have three Board of Directors positions coming available at our annual meeting in February (President, Vice President/Secretary and Treasurer). I was informed by our management company that even though there are three seats/positions available, each owner can only cast one vote total. Is this correct? You would think that each owner would be able to cast a vote for each open position?thus three votes total. Is this not the case?"

If the HOA documents (usually found in the bylaws but there might be a reference in the CC&Rs) do not specify any voting scheme, then I would suggest that an owner should be allowed to exercise at least one vote per candidate up to the number of vacant positions.

If the documents do specify the voting allotment (which most do), then the language in the documents would dictate the voting allotment.

And furthermore, if the documents allow cumulative voting, each owner should be able to place a vote for each candidate position either by placing them all on one candidate, or some formula in between (in this example, 1 on each of 3 candidates, 3 on one candidate, or any combination of 2 and 1.)

Of course, an owner can submit less than 3 votes here, and a common error that owners make when cumulative voting is not explained well (or owners do not read the instructions) is to put a "1" after a candidate's name thinking it counts for all the votes (here 3) instead of just 1 vote when there is cumulative voting.

Under the "old way" of elections, the Corporations Code language had meaning - it provides that in order to trigger cumulative voting, a member of the Corporation has to ask to cumulate their votes, but now, the HOA elections law provides for voting by mail in a double envelope process and requires that if cumulative voting is provided in the governing documents, it needs to be noted in the election rules (paraphrasing the law but this is the impact of the California HOA elections law). So, if its in the rules, the HOA needs to explain it to folks in the ballot package. There is generally no meaningful opportunity to make the call for cumulative voting at an HOA meeting.

(Nothing is as simple as it seems it should be, huh!)

Full post as published by California Condo & HOA Law on January 08, 2009 (boomark / email).