LEGISLATIVE CAI-CLAC Update 2024–2025 Legislative Update: Elections, Elections, Elections (and More!)

BY: A.J. JAHANIAN, ESQ. AND LISA A. TASHJIAN, ESQ.

The last several years have seen active State Legislature, often geared towards increasing the availability of housing within the state. Whether it was relaxing rental restrictions in associations or removing regulatory hurdles for ADU construction, recent new laws often seem to come at the expense of common interest development living and community.

This year, with the critical efforts of CAI-CLAC, electronic voting was finally signed into law, marking a long-awaited step towards increasing homeowner participation and facilitating the voting process, while minimizing election costs. Other bills, either enacted or still pending, may also prove to be positive or uncontroversial. What you won’t see here is the mandatory Board Member Education bill, which resurfaced this year, and which CAI-CLAC staunchly (and successively) opposed.

AB 2159: Electronic Voting

This CAI-CLAC sponsored bill finally puts into law, associations’ right to implement electronic voting, in the place of distributing secret written ballots. Specifically, Civil Code Section 5105 now provides that associations may adopt an election operating rule, to allow owners to either “opt-in” or “opt-out” of electronic voting, as long as certain procedures are followed. If owners opt out under the association’s election rules, they must be given a secret written ballot (per usual), and they must also be provided with individual notice at least 30 days before the deadline to opt out of electronic secret ballot voting, which states:

• The member’s current voting method;

• That if the member’s voting method is by electronic secret ballot and the association has an email address for the member, the email address of the member will be used for voting by electronic secret ballot;

• An explanation that the member is required to opt-out of voting by electronic secret ballot if the member elects to vote by written secret ballot;

• An explanation of how a member may opt-out of voting by electronic secret ballot; and

• The deadline by which the member is required to opt-out of voting by electronic secret ballot if they want to exercise that right.

If the rule allows owners to opt- in to electronic voting, the inspector of elections must provide them with an electronic secret ballot and there are less burdensome requirements. Regardless of which rule the board chooses to adopt, the association must maintain a list of members who are using electronic versus traditional written ballots.

Important to note, electronic voting cannot be used for elections regarding regular assessment increases or special assessments. It is critical that boards work with legal counsel to update election rules if they wish to begin implementing electronic voting. Keep in mind that election rules that are amended within 90 days of an election may not be used for that election—the old rules still apply. Regardless, updating the rules sooner, rather than later, will get the association on track to using electronic voting in the very near future.

SB 900: Repairs & Maintenance

Existing law requires associations to maintain, repair and replace the association’s common areas, or other components and areas that it is required to maintain and repair, under their governing documents. This bill expands on that obligation by mandating associations be responsible for repairing and replacing any components necessary to restore interrupted gas, heat, water, or electrical services, which components begin in the common area, and even if they extend into other areas such as the unit. Now, under Section 4775 of the Civil Code, boards must begin the repair process for any of these interrupted services within 14 days.

Boards will need to begin planning to ensure the cost of these components are incorporated into operating budgets and reserve studies. Note, if reserve funds are insufficient to perform these repairs, the law also allows the association to obtain financing, without membership approval, and impose an emergency special assessment to pay back the loan. Alternatively, boards may want to ensure the CC&Rs are amended to sufficiently describe responsibility and ownership of these components.

There are two exceptions to this law: (1) if the CC&Rs assign a different maintenance responsibility to these components; or (2) if those components are required to be maintained by a utility company.

AB 2114: The “Balcony Bill” Revised

We all know by now that via SB 326, associations must complete visual inspections of exterior elevated elements (load-bearing balconies, decks, patios, etc.) by no later than January 1, 2025. These inspections, to date, needed to be performed by structural engineers or architects. AB 2114 adds to that short list, a “licensed civil engineer” as someone qualified to perform the inspection. Don’t be late! Getting these inspections done early will help with budget and maintenance planning, especially if inspections reveal that significant repairs are needed.

A.J. Jahanian, Esq. and Lisa A. Tashjian, Esq. are Partners with Beaumont Tashjian, a law firm specializing in common interest development law and serving clients throughout California. They can be reached at ajahanian@hoaattorneys.com and ltashjian@hoaattorneys.com, respectively.