Reader Questions – A Law That Came Too LateFeb 28, 2022
By Kelly G. Richardson, Esq. CCAL
During the onset of the COVID-19 pandemic, HOAs were presented with a conundrum: Local health authorities prohibited gatherings of more than a few unrelated persons; however, HOA boards were required by the Open Meeting Act to have meetings that included the option of personal physical attendance, even if most members chose to participate telephonically or virtually.
For over a year, most HOAs and their managers and lawyers decided that it was more important to follow the emergency health orders and conducted purely virtual meetings, which technically violated the Open Meeting Act. Specifically, the meetings did not include a physical location where someone could attend and listen to the deliberations. This violated Civil Code Section 4090(b) and Section 4925(a), which require that there is a “physical location” with at least one director or person designated by the board in attendance. After evaluating whether to violate health directives or the Open Meeting Act, most lawyers decided that violating the Open Meeting Act was the lesser sin, and so the vast majority of HOAs met via purely virtual platform without a physical location announced.
On September 24, 2021, the Governor signed into law Senate Bill 391, which as an emergency statute became effective immediately. It created a new Civil Code Section 5450, allowing HOAs during declared emergencies to have purely virtual meetings with no announced physical location. The new statute also requires certain disclosures to the membership and changes in board meeting procedure during these purely virtual meetings.
Subsequently, many if not most HOAs still conduct purely virtual meetings, mistakenly thinking that the new law essentially ratifies the practice.
However, the law was enacted far too late to really be a help to HOAs during THIS emergency. SB 391 may be of great help during the next emergency, but not this one.
The key language in the new Civil Code Section 5450 is that the governmental declaration of emergency must render the ”gathering in person … unsafe or impossible.” If so, and after the HOA makes certain disclosures to members, it can meet purely virtually. In early 2022, I do not know of any county presently banning or declaring unsafe small, in-person meetings of unrelated persons. Unless a local, state, or county government declares an emergency and prohibits small meetings of unrelated persons or declares them unsafe, Civil Code Section 5450 is inapplicable and HOAs must still comply with Civil Code Sections 4090(b) and 4925(a).
Associations have in the past two years learned the great benefit of adding a virtual component to their board meetings. That component remains a valuable addition to HOA governance, as members who are traveling, ill, or otherwise unable to attend can observe their HOA governance. However, it is time for HOAs to return to full technical compliance with the Davis-Stirling Act and begin to provide for a physical location with one director or other designated person (the manager?) to attend.
These “hybrid” meetings may well be the “new normal” for common interest communities, as we all welcome physical or virtual attendance. Associations would be well-served by some modest acquisitions of affordable sound and/or video equipment to enhance the experience of virtual attendees. Consider modifying the HOA’s meeting procedures and embrace the new normal of both virtual AND personal attendees at board meetings.
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