HOA Homefront: Can a board make decisions without meeting?

Q: Do bylaws allowing action without a board meeting supersede Davis-Stirling Act requirements? My HOA’s bylaws provide as follows: “Any action required or permitted to be taken by the board may be taken without a meeting, if all members of the board consent in writing to the action.” Could you address this issue? — E.H., San Diego

A: Civil Code Section 4910 is quite clear – except for emergency email decisions under 4910 subpart (b), HOA boards cannot make decisions except in board meetings.

The 2023 published decision in LNSU No. 1 v. Alta Del Mar Coastal Collection allows boards to discuss business in emails so long as the decision itself is made in a board meeting. Bylaws are not allowed to contradict statutes, per Civil Code Section 4205(a): “To the extent of any conflict between the governing documents and the law, the law shall prevail.”

E.H., the bylaw section you mention is often found in older bylaws, because before the Open Meeting Act became law in 2012, Corporations Code 307(b) allowed decisions outside of board meetings by unanimous written consent.

However, Civil Code 4910 is more specific and bars common interest developments (HOAs) from doing what other California corporations are allowed to do.

Q: A special assessment was approved by the membership. The motion at the next monthly board meeting only approved the annual budget. There wasn’t any motion to charge the homeowners for the special assessment in this and any subsequent meeting minutes. Can a homeowner challenge the legality and validity of the special assessment? Does the board need to cure this problem? — M.F., Huntington Beach

A: If the special assessment was approved by the membership through a vote, board minutes would not be the document that records that fact. Instead, there would be at least two documents required by statute.

The first is the announcement by the board of election results, per Civil Code Section 5120(b), which is required to be made within 15 days of the voting.

The second would be the individual notice to each member of the special assessment becoming due, which under Civil Code Section 5615 must issue not less than 30 or more than 60 days before the assessment is due.

If the special assessment ballot did not state when the assessment would become due, the board’s decision on that due date should be recorded in the HOA minutes.

Q: What attachments, if any, are HOAs required to make to their open session minutes?  If an action was approved based on a proposal or report, should a copy be included with the minutes? — S.T., San Diego

A: Minutes are intended to record just a few things – which directors attended the meeting, what motions were made and the motions’ outcome, and what reports were received.

The Davis-Stirling Act at Civil Code Section 4950(a) requires that draft minutes be available to a requesting member within 30 days of the meeting, but does not require other items, such as approved contracts or committee reports, to be attached to the minutes.

It’s a good idea to make sure the minutes identify the contract or report so there is no later argument about what was approved — but attaching them is not legally necessary.

Richardson is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com.