In last month’s California appellate court decision in Wittenberg v. Beachwalk HOA,[i] the court upheld HOA fair elections procedures. Homeowners are to be given equal opportunity to express opinions in opposition to those of the board, in and on the same media as used by the board. The common practice in most HOAs is to deny members equal access, which has extended in many cases to the denial of membership records and intimidating members from conducting door-to-door campaigning.
The record shows that Beachwalk had engaged in practices found in many other HOA instances:
1. Holding multiple elections until the proposed amendment was finally passed,
2. The ballot and cover letter expressed only the board’s recommendations on the amendment,
3. The board made exclusive use of the HOA newsletter to promote its views, refusing a request by a member to comment on the election, and
4. Denying a member the use of a fee paid “renter” room to hold a rally against the amendment.
The court explained, my emphasis,
This plain English definition [of advocacy], which we adopt, is consistent with the overall nature and purposes of section 1363.03. Subdivision (a)(1) was part of a bill that sought to “provide substantial new voting protections” to members of homeowner associations designed to “guarantee that basic democratic principles are in place during elections,” which had previously been “contaminated by manipulation, oppression and intimidation of members, as well as outright fraud.” It is thus remedial in nature. “A statute which `is remedial in nature and in the public interest is to be liberally construed to the end of fostering its objectives . . . . `The rule of law in the construction of remedial statutes requires great liberality, and wherever the meaning is doubtful, it must be so construed as to extend the remedy.””
The intent of the court is clearly an example of the Enlightenment Movement after some 49 years since the creation of the first HOAs in this country. While the court upheld California’s HOA fair elections statutes, the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[ii] This position is in conflict with the CAI policy that HOAs are “one of the most representative and responsive forms of democracy in America today.”[iii] Unless, of course, CAI has some distorted view of democracy. In fact, CAI California is seeking support to appeal the decision to the California Supreme Court.
[i] Wittenberg v. Beachwalk HOA, NO. G046891 (Cal. App. 4th Dist. June 26, 2013).
[ii] “Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013. (http://caiclac.wordpress.com/2013/07/09/appeals-court-ensures-equal-access-during-elections/).
[iii] “A FORM OF DEMOCRACY. Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents serve on committees and help with special tasks as they arise.”, Section 8 in An Introduction to Community Association Living (2006), http://www.caionline.org/events/boardmembers/Documents/IntroToCALiving.pdf.