A California appellate court recently overruled a trial court decision that allowed a homeowners association board to advocate a point of view in an election to amend the association’s governing documents. Wittenberg v. Beachwalk Homeowners Association, which the court certified for publication on June 26, 2013, addressed whether the Davis-Stirling Act provisions that expressly apply to “any candidate or member advocating a point of view,” applied to the association acting through its board of directors.

The court specifically looked at two sections of the Davis-Stirling Act, which require associations to adopt rules to ensure equal access in elections. Section 1363.03(a)(1) ensures that once a member advocating for one point of view in an election receives media access (association media, newsletters, website), members advocating the counterpoint receive equal access to the media for election related matters. Additionally, Section 1363.03(a)(2) provides that all members, regardless of their point of view, must receive free access to all existing common areas for election-related matters.

During the course of three elections to amend the association’s governing documents, the board used cover letters, attachments to the ballots, newsletters, community bulletin board posts, and the association’s website to urge members to pass the proposed amendment. The board denied members opposing the amendment access to these media and denied access to the association’s common areas for opposition gatherings. The board finally passed the amendment after the third attempt.

In overruling the lower court, the appellate court held that “board members are treated as any other member for the purpose” of the equal access provisions of the Davis-Stirling Act. The court found that, “[h]aving engaged in advocacy, under subdivision (a)(1) the association was bound to permit other members equal access to association media.” Note that rather than void the election, the court simply reversed the trial court’s decision, leaving it up to the trial court whether to void the election.

It seems obvious in the context of an election on a proposed amendment to an association’s governing documents that the board is in favor of the proposed amendment or else the board would not have proposed it for member approval; it would seem strange if a board could not explain the reasons for proposing the amendment. So one could certainly argue a board should be able to provide its rationale for proposing an amendment. On the other hand, it is hard to argue that all members should not have equal access to present differing points of view, especially when the board goes beyond simply providing its rationale for the proposal and uses other association media resources for its advocacy efforts.

While it may still be possible for a board to provide some information to members without “advocating a point of view,” this case serves as a warning to homeowners associations.  The bottom line is that if the board of an association wants to advocate for a result “in the midst of an election,” the board must be very careful when providing information to members or should be prepared to allow the same access to all of its members. When an association seeks to amend its governing documents or encounters a potential equal access issue during an election, the board should consider consulting legal counsel to avoid unnecessary litigation or a potentially voided election.

Nathan R. McGuire, Neumiller & Beardslee

Note: All sections cited in the case, Civil Code sections 1363.03(a)(1)–(2) and 1363.09(a), will become sections 5105(a)(1)–(2) and 5145(a) in the reorganized Davis-Stirling Act on January 1, 2014. The language in the new code sections is the same as the previous sections and has no substantive effect on the ruling of this case.

Nathan R. McGuire is a principal with Neumiller & Beardslee and chair of the firm’s Community Association Law Group. He is an at-large delegate to CLAC in the Bay Area & Central Chapter and serves as one of CLAC’s legislative co-chairs.

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Adrian Adams, one of the attorneys involved in this case, has 30 days to file a petition, and would like thoughts from other HOA attorneys on why the Court should review this case, i.e., how the appellate decision will harm HOAs, residents and boards, and how it creates conflicts with other statutory provisions and duties under Davis-Stirling, the Corp. Code, etc. Since time is of the essence, please send feedback at your earliest convenience to aadams@davis-stirling.com.

To read the briefs filed in the case and the court’s decision, go to https://www.dropbox.com/sh/i74vsnep777s82v/8fQ5IlndHs If you have any trouble downloading the briefs, let Adrian Adams know.