Q: Our board has been in place for over 10 years. Bringing new members on board has not been successful as ballots are counted secretly. Annual elections apparently have always had a difficult time obtaining a voting quorum. This year, the board passed a resolution that they can remain in place until the next annual election to see if there will be enough ballots returned for a vote. I cannot see any rules or direction in our bylaws to allow for directors to remain continually should there not be enough ballots returned. Is this something they can do? — M.D., El Cajon

A: Unfortunately, it is all too common for HOAs to fail in membership meetings to attain quorum (the minimum number of participants to allow membership voting), and therefore fail to conduct an election.

However, that should be less of a problem following the relatively new Civil Code Section 5115(d)(2), which states that if a board election fails for lack of quorum, the HOA can adjourn the meeting to a new date at least 20 days later, at which time the quorum drops to 20%. Most HOAs should find that lower quorum number more attainable, and therefore help board elections to occur.

In the event an election fails for lack of quorum despite the reduced quorum, the directors continue to serve in their seats until they resign or are replaced by election, pursuant to Corporations Code Section 7220(b). So, your board would not need a resolution to continue to serve. They automatically continue to serve until they resign or until a successful election occurs.

M.D., you reference that ballots in your HOA are counted secretly, and that is not how the law requires counting to occur.

Civil Code Section 5120 requires that the vote counting occur in an open membership meeting or board meeting and that any member of the HOA can witness the vote counting. Also, under Civil Code Section 5125 any member can inspect the ballots and tally sheet.

Q: Are there any ramifications for HOAs who do not hold timely elections? —  A.W., Signal Hill

A: The answer to this question also comes not only from the Davis-Stirling Act, but from the Corporations Code.

Corporations Code Section 7510 states that if a corporation is overdue by at least 60 days in holding its annual meeting, or if it has not held an annual meeting in 15 months, a court petition can be filed seeking to compel the HOA to hold its annual meeting.

A simple reminder to the board and management hopefully should be enough, as court petitions require attorney fee expense.

Q: How do you remove a toxic committee member? — J.K., Santa Barbara

A: Normally, committee members are appointed by the board and serve at the board’s pleasure, unless the HOA bylaws state otherwise. If someone is creating havoc in a committee, the board can remove or replace them at an open board meeting. Some boards mistakenly call this a “personnel” matter and change committee rosters in closed session but that is a mistake – volunteers are not “personnel” and even though it might be awkward to do in an open meeting, such a decision must be out in the open (and noted in the minutes).

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.