HOA Homefront: What board eligibility requirements must HOAs follow?

Serving as HOA directors is a high responsibility, as the directors on the board are elected or appointed to make most of the HOA’s key operational decisions.

In California there is only one mandatory eligibility requirement to run for director or serve as directors – directors must be association members (Civil Code Section 5105(b)).

Unlike Florida, which requires volunteer directors to take a state-approved education course within 90 days of joining the board and annually take either 4 or 8 hours of continuing education, depending upon the HOA’s size, (Florida Statutes Title XL Section 720.3033), California has no minimum education requirement to serve on HOA boards.

It is unclear (but doubtful) whether California HOAs can require a certain minimum level of governance education or conduct standards; since the Davis-Stirling Act only provides for five other eligibility requirements which can be provided for in HOA bylaws or election rules per Civil Code Section 5105(b)(c):

—Term limits. If the HOA has a limit on overall terms or consecutive terms, and the director would exceed that limit;

—Nominee’s delinquency in regular or special assessments (delinquency is defined as 15 days after due date, unless the governing documents provide a longer time, Civil Code Section 5650(b));

—If the person elected would be serving simultaneously on the board with someone who is a joint owner with the nominee;

—If the nominee has not been an association member for at least one year; and

—If the association learns the nominee has a past criminal conviction that would, if that person was elected, prevent the HOA from obtaining or keeping in place dishonesty insurance.

None of the above five optional eligibility factors are automatically applicable – they must be stated in either the HOA bylaws or election rules.

Most HOA attorneys agree that these five optional eligibility standards are the only standards the statute currently allows. This means that many past common eligibility requirements, such as living on site, not having unresolved violations or pending litigation with the HOA, signing an ethics or code of conduct pledge, or taking some minimal HOA education, are apparently not allowed by the statute because they are not listed.

One other oddity of the current candidate eligibility statute is the Civil Code 5105(e) requirement that candidates cannot be disqualified if they have not been offered Internal Dispute Resolution (the process of Civil Code Sections 5900-5915).

Does this mean that otherwise ineligible candidates such as non-members, barred from running by Civil Code 5105(b), must nevertheless be placed on the ballot if the HOA fails to offer them Internal Dispute Resolution?

This creates a potentially strange outcome – one who is otherwise ineligible might still be on the ballot because the HOA didn’t offer IDR but then if elected would be immediately disqualified since Civil Code 5105(f) requires sitting directors to comply with the same eligibility requirements as nominees.

When the Legislature tinkers with the already complicated HOA election processes, it often creates odd outcomes which presumably were not intended.

Hopefully at some point the Legislature or courts will clarify that other reasonable requirements, such as governance education or code of conduct pledges, can be required of board candidates. Don’t our HOAs deserve that?

Read the Davis-Stirling Act at leginfo.legislature.ca.gov. It’s Civil Code 4000-6150.

Richardson, Esq. 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.