Are You Crossing the Line and Doing Too Much Condo/HOA Business By Email?
HOAleader.com - Tip of the Week - February 2, 2024
In this week's tip, we use a recent California Supreme Court case, LNSU #1 v Alta Del Mar Coastal Collection Community Association, to help you understand why doing condo/HOA
business by email could get your board in trouble.
After the court's opinion in LNSU was issued in August 2023, the court was asked to "depublish" the case.
In December 2023, it declined, meaning the court's holding stands and can be relied on in future cases.
In a nutshell, the case holds that California boards can discuss condo/HOA matters by email but must make decisions in open meetings
after providing proper notice.
Is that true in other states?
First, some background. The case was brought by two homeowners—set up as LLCs—in the Alta Del Mar HOA. They were managed by Ponani Sukumar, who also served on the five-member board. At some point, they submitted an architectural request to build 10,000 square feet of underground living space on their lots.
After the board met in executive session, and Sukumar recused himself, the board voted 3-1 to adopt an expert's recommendation to reject some aspects of the proposed architectural plan. The owners then sued, alleging several violations of California's law, including that directors discussed association business by email without giving
members notice and an opportunity to participate in the discussions and without preparing related minutes.
The court rejected the plaintiffs' claims, including their assertion that the board improperly used email instead of public meetings.
That's in part because the plaintiffs and their representatives also conducted HOA business by email and only later asserted the practice was improper. The court also held that board members in separate locations sending emails didn't meet the statutory definition of a meeting—being in person meeting at the same time in a physical location—so required meeting notices weren't necessary.
Key to the holding, reports Susan Hawks McClintic, managing shareholder and the chair of the community association transactional practice group at the law firm of Epsten APC in San Diego, is that the court clearly distinguished discussing business from
making a decision on business using email.
McClintic notes that the line between discussing association business by email—which the court found
acceptable—and making association business decisions by email—which the court found unacceptable—can be hard to pin down. Her advice: "Be very careful not to treat board meetings like a rubber stamp of something you've already decided outside the meeting," she says.