Q: Can an HOA board president make unilateral decisions or agreements without first obtaining the approval of the majority of the other directors? I’m concerned that our president might be overstepping their authority. — D.H., Apple Valley
A: HOA power is exercised by the board, not the president.
Boards may delegate specific authority to presidents; but otherwise, presidents actually have very little power in HOAs.
Each director’s vote counts the same as the others – including the president’s vote. Many presidents do not understand that nonprofit mutual benefit corporations (such as HOAs) operate differently from for-profit corporations, in which presidents are very powerful.
A president acting without board authority does so at their peril because that board could disavow the president’s decision and even hold the president responsible for actions which ultimately did not benefit the HOA and which were not originally authorized by the board.
Many bylaws contribute to this confusion by referring to the president as the HOA’s “chief executive officer,” but that is in the context of the nonprofit mutual benefit corporation laws. Corporations Code Section 7210 helps to eliminate the confusion as to whether the president or the board is in charge: “.. the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.”
So, presidents may be, and often are, authorized by boards to act on the corporation’s behalf on specific items. That authorization should always be in the form of a board motion or resolution which is in the HOA’s written minutes- that way the president can prove their authority if it ever is questioned later. Thanks for your question, Kelly
Q: Can a person not on a home’s title actively participate in board meetings? — C.P., Los Angeles
A: Only members have the right to attend board meetings, per Civil Code Section 4925(a), and “members” are owners of separate interests in the HOA (Civil Code 4160).
Under the precedent set in S.B. Liberty vs. Isla Verde appellate case in 2013, a “member” does not include the member’s legal counsel. The board may invite non-members to attend, or it may have a policy of allowing non-members to attend, but only owners have a legal right to attend.
Q: Can HOA boards change Robert Rules to adapt to their HOA? — H.F., Beaumont
A: Parliamentary procedure is a system of rules fostering orderly deliberation in meetings. The predominant rules were created by Henry Martyn Robert in 1876, and his rules have been known since as “Robert’s Rules of Order.”
Civil Code Section 5000 requires that HOA membership meetings be conducted using a “recognized system of parliamentary procedure” but does not apply to board meetings.
While not specifically required by law for board meetings, a basic observance of parliamentary procedure can help your board deliberations organized and on target.
Robert’s Rules should be used in board meetings in a basic way, and directors should become familiar with the basics. Robert’s Rules work best for mid-sized and larger groups, and boards are normally very small groups.
So, an understanding of the basics of Robert’s Rules can be helpful for boards, but the strict application of those rules to board meetings is not legally required.
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 advice. Submit column questions to kelly@roattorneys.com. Past columns at www.HOAHomefront.com.
