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Tuesday, January 25, 2022

HOA Homefront: Are Secret Recordings and No Meetings Legal?

Question: What are the responsibilities of the HOA manager and the board for the householders’ share of the board meeting? Currently, virtual sessions are done with requests via email. Our manager designed defensive, offensive responses and sent them out before the meeting took place. I think the homeowners would love to appear to hear us. — DV, San Diego

A: Section 4925(b) of the Civil Code requires all open board or membership meetings, including members to speak, to be subject to reasonable time limits. Virtual meetings are not exempt from this law. Civil Code 5450, the statute authorizing purely virtual meetings during declared emergencies, does not do away with the requirements of the Open Meeting Act. The requirement of members to submit written questions in advance is not a substitute for an open forum.

The open forum part of the meetings is extremely important. This is the only opportunity for meeting attendees to contribute and comment.

Members should plan their open forum remarks in advance and use their time wisely, and the directors should listen and not react, debate or otherwise interfere with a member’s allotted time. To preserve speakers’ time, questions must be answered after the completion of the open forum, and, unless the subject of the person’s comments is already on a posted agenda, Civil Code Section 4930(b) ) (1) prohibits the directors from discussing the matter raised. Open forum by comment.

Entering open forums not only violates the law but sends a wrong message to the community. Have reasonable deadlines and make it clear that an open forum is an important part of every HOA meeting and is not just a statutory requirement to endure.

Question: During general session board meetings, are householders allowed to record or videotape the session without the board’s authorization and knowledge? – PR, Anaheim

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A: Homeowners Association board meetings are open to members, but are not public and are therefore private meetings. Secretly recording a private meeting may be a violation of Section 632 of the Penal Code and may also be considered a breach of confidentiality, as Board meetings are private meetings for the benefit of the members.

Therefore, it is a very bad idea to make unauthorized recordings of HOA meetings.

Question: We have a board that has been under the control of our HOA for over a year and we have had an open meeting. All decisions are made without meeting and without meeting minutes. Are the courts allowing the board to make decisions without a meeting and denying the owners the opportunity to vote on the cases themselves? — PB, Tarzan

A: Some boards have felt that the pandemic has absolved them of the responsibility of holding board meetings. this is wrong. The corporation can function only through the board, and in accordance with the Open Meeting Act the board functions through meetings of the board.

If there is no meeting and no minutes, the corporation has not acted, and all decisions of the board are subject to cancellation. This can expose the directors to personal liability and throw the HOA into chaos if a new board supersedes all of the old board’s undocumented actions.

Such a board must hold an open meeting, announce the confirmation of previous decisions in the posted agenda, and then ratify those previous decisions.

Kelly G. Richardson, Esq. A Fellow of the Community Association’s College of Lawyers and a partner in Richardson Ober Denicillo LLP, a law firm known for community association advice. Submit questions at [email protected]

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