Every now and then it happens that the Board of a Homeowners Association (HOA) may take a position with which some members disagree. Probably most often when this happens, it is a disagreement over a relatively small matter affecting only a few members. Sometimes, though, it may be a big deal with significant impact, and a membership vote may be required. When this happens, it often may appear that the advocates of the board’s point of view have a distinct advantage. This is because the board may, in effect, control the media and the major avenues of communication. If there is a newsletter, the board may control its content. Ditto for an association web site. Moreover, the board may have effective control over the use of association facilities such as meeting rooms and bulletin boards.

It is for such reasons that the California legislature added sections 1363.03(a)(1) and (a)(2) to the Civil Code. As attorney Jerry Bice has put it, the first part of the section, "ensures that once a member advocating for one point of view in an election receives media access (association media, newsletters, website), members advocating the counterpoint receive equal access to the media for election related matters. Additionally, [the second part] provides that all members, regardless of their point of view, must receive free access to all existing common areas for election-related matters." These civil code sections were put to the test in the case of Wittenberg v. Beachwalk Homeowners Association (California Fourth Appellate District, June 26, 2013).

In October of 2010, certain Beachwalk homeowners sued the Association for violating Paragraph 9 of the CC&Rs. That paragraph states that no alterations to the common area improvements costing more than $1,000 shall be made without the approval of at least 2/3 of the voting homeowners. Without such a vote, the HOA board had removed one pool and had plans to remove two more. The court granted a preliminary injunction preventing the removal of any more pools without obtaining the two-thirds vote required under paragraph nine.

Rather than obtaining the required vote, the board "instituted a series of elections to amend paragraph nine of the CC&R’s to increase the dollar threshold for requiring a vote, and to reduce the number of votes required to approve expenditures." The board sent a ballot to the members, along with a letter that, among other things, warned, "if we don’t take action now to resolve the situation with the CC&R’s, the Association is destined to become further mired in conflict and expensive litigation."

After the letter went out, a homeowner requested use of a portion of the clubhouse to put on a "townhall meeting" to support other candidates for the board who had a different view. He was not granted free use of that portion of the clubhouse, even though it was usually free to HOA members.

The board aimed to get a 50% vote, which would have been 227 yes votes. It failed. But the board was adamant. Another election was scheduled, and it was also announced, "...if we cannot get 227 yes votes in March, there will be another ballot on the same issue shortly thereafter."

A homeowner opposed to the amendment asked to write a response in the HOA newsletter, but his request was refused because only board members were permitted to publish articles in the newsletter. A request by another homeowner to use the greenbelt for purposes of a political rally was denied. While the HOA bulletin board contained a copy of the board newsletter, no opposing member was allowed to post material on the bulletin board.

After three votes, the measure passed. Opposing members then filed a motion to invalidate the election results. A Superior Court ruled in favor of the HOA board, but the plaintiffs filed an appeal.

The Appellate Court reversed the Superior Court decision, and held that the board had violated the relevant provisions of the Civil Code. The board had engaged in advocacy, not just the provision of information, hence it had an obligation to provide opponents with access to the same media venues.

HOA boards are in a position of potential one-sided power when a vote is to be taken. They must give the opposition equal opportunity to be heard.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way.