Q: It seems our HOA is hiding behind an over-used Covid excuse to hold their meetings virtually. Is there currently a requirement for these meetings to be exclusively virtual? Has such a past law been repealed or expired so that we are back to in-person? — J.H., San Diego
Q: Until COVID-19, our monthly HOA board meetings were held near the community. Since early 2020, the board meetings have been held via Zoom only. When I inquired about in-person meetings resuming, I was told that it was not something being considered by the board. Based on one of your prior articles, it appears virtual-only meetings are illegal since the emergency conditions have passed. Am I correct? — R.R., Rancho Santa Margarita.
A: In 2020, a number of counties banned meetings indoors of more than five unrelated persons. So, HOAs had to choose between violating the health orders or the Open Meeting Act. During those months, most HOAs chose to obey the health orders and began to have purely virtual meetings. Most if not all of those bans on indoor meetings ended in 2020, so it became no longer illegal to have in-person HOA board meetings. However, many HOAs continued to meet in violation of the Open Meeting Act by meeting completely virtually and not having a physical location where someone could attend in person with an HOA designee also present.
In 2021, Senate Bill 391 was passed and became law in September 2021, and many (including lawyers) have used the statute as a justification to continue with purely virtual meetings. Unfortunately, the new statute, Civil Code 5450, is being widely misapplied since it says that HOAs can meet purely virtually if a declared emergency renders it “unsafe or impossible” to meet. I am not aware of any jurisdiction in California that (in 2021, 2022, or presently) has banned indoor meetings (ask anybody who attends church, movies, restaurants, or indoor sporting events!). You can check www.covid19.ca.gov to confirm.
HOAs must comply with the Open Meeting Act and hold either hybrid or in-person open board meetings.
Q: Our HOA meetings have been 100% virtual since March 2020. You wrote that an in-person option was required with “at least one director or HOA designee present.” Our board has no interest in holding in-person meetings and designated the management company’s office, 12 miles away, as the location for in-person meetings despite our clubhouse is within a 5-minute walking distance of all homeowners. Are there any guidelines or qualification requirements concerning the individual they designate as the “HOA designee” for the in-person location? — D.D, Huntington Beach.
A: Civil Code 4090(b) allows for virtual participation in HOA board meetings but requires that the board announce a physical location at which at least one director or someone else the board designates will be present, for persons who do not wish to call in or log in to the meeting. There is no further guidance in the statute about who can be designated, so it could be a director or anyone else the board designates. However, having the physical location 12 miles away instead of the on-site clubhouse might seem disrespectful to members who prefer personally attending.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association expertise. Submit column questions to [email protected].
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