BUYING VOTES?

BUYING VOTES?

QUESTION: Our board is doing a rewrite of our bylaws and CC&Rs. My problem is that they are offering $5 gift cards to those who return their ballots. Is it legal to use HOA funds in this way?

ANSWER: Yes it is legal. Doing so is not the same as buying votes. Instead, it is an incentive to vote and can be used for both annual meetings and amendment approvals. 

Annual Meetings. Association elections are different from municipal elections in that HOAs must meet quorum requirements and cities don't. For example, in the May 2013 mayoral election in Los Angeles, only 19% of eligible voters cast ballots. The dismal turnout did not derail the election as it would in a homeowners association since no quorum was required. Can you imagine the problems and enormous expense if city, state and federal elections needed 50% of the population to vote before they could count ballots? Because associations are not normal, i.e., they are burdened with quorum requirements, boards must nag and cajole members to vote, and sometimes offer incentives. 

Amendments. Achieving quorum at membership meetings is difficult enough but reaching supermajority votes for amendments and restatements is nearly impossible. Because of that, the Legislature created the "1356 Petition" as a mechanism for realistically amending documents. If an association can obtain at least 50% membership approval, it can ask the court to approve amended or restated CC&Rs. By statute, the association must demonstrate to the court that they made extraordinary efforts to obtain voter participation. Offering $5 gift cards to voters would be one of those efforts (along with extended voting periods, repeated requests to vote, etc.).

RECOMMENDATION: To make board elections more manageable, your association should amend its bylaws to eliminate quorum requirements and cumulative voting for the election of directors. In addition, it should lower CC&R amendment requirements from a supermajority to 50%. Once that is done, future elections will be much more manageable.

DOG GROOMING BUSINESS

QUESTION: We have a homeowner who owns a mobile dog grooming business. While she parks her customized van off-site, we believe she is using HOA water to fill her dog bath tanks almost every day. Can we prevent her from doing this or charge her for the water?

ANSWER: Yes, it would be reasonable for associations that are master-metered, i.e., the association pays for the water, to adopt rules prohibiting members from using water for commercial purposes. Accordingly, you could impose a fine and charge a reimbursement assessment if you could determine they were using the association's water.
Practical Considerations. Determining the amount of water used would be very difficult absent an eyewitness to the violation. Ditto for imposing fines. Any reimbursement assessment or fine must be preceded by a notice and a hearing (due process).