In my HOA Common Sense: rejecting private government pamphlet, No. 5, Democratic Elections, I argue that the adhesion contract CC&Rs presents defective and unfair election procedures, if any. Last month Frank Askin, hero of the Twin Rivers (NJ) free speech case and Director of the Rutgers Constitutional Rights Clinic, wrote the chair of the California Assembly Housing Committee opposing the proposed election requirements in AB 1799. (Thanks to the California advocacy group, CCHAL, for posting the letter).
His legal-eagle eye uncovered a provision that allowed the HOA board to easily undo all and any of the proposed election requirements that favored fair and just elections. AB 1799 gave the HOA the power to declare elections as uncontested, setting forth adherence to Sec. 5105 and giving the appearance of member protections. But, section 5105 (a)(8) was added that based voting rights on “members in good standing.” Section 5105(a) begins with, “An association shall adopt rules . . . ” and subsection (8) is one rule. “Shall” is a mandatory requirement.
Nothing in the Legislative Counsel statement at the head of the bill made mention of a new restriction dealing with members in good standing. (This summary is used as a ‘quick read’ by legislators and rules are strict about proper and adequate notice of changes.)
According to the CAI stalwart firm of Adams-Stirling (Davis-Stirling.com), ‘good standing’ is not defined in the Davis-Stirling Act, but generally means “a member who is current in the payment of their assessments and not in violation of the governing documents” (emphasis added).
So, here we go again. What you see is what you don’t get! The board can declare any election uncontested by finding members to be in violation and preventing them voting or being a candidate. (Politicians are good in giving the appearance of propriety and fairness).
It is very important for all concerned homeowners to note how state laws mimic and duplicate these private CC&Rs and legitimize them – now, it’s the law! Ask yourself, why aren’t the CC&Rs document subject to state approval with mandated restrictions and conditions as found in the Constitution and Bill of Rights? Why not, indeed!