HOA Member Votes: When California Law Requires the Full Membership to Weigh In

Board Decisions vs. Member Votes: Understanding the Line

California's Davis-Stirling Common Interest Development Act and the California Nonprofit Mutual Benefit Corporation Law together define the boundary between board authority and member authority. As a general rule, the board has plenary authority to manage association affairs — unless a specific provision of law or the governing documents requires member consent. The governing documents can expand the category of decisions requiring member approval (many do), but they cannot narrow the categories that California law mandates go to the membership.

The practical implication: before any significant board action, the board should confirm both what Davis-Stirling requires and what the CC&Rs and bylaws require. Many associations have governing documents that require member approval for actions that Davis-Stirling would permit the board to take alone. Both sets of requirements are binding.

CC&R Amendments: Member Supermajority Required

Amendments to the CC&Rs — the foundational document that defines the association's use restrictions, ownership structure, and enforcement powers — cannot be adopted by the board alone. California Civil Code §4270 requires approval of a percentage of the total membership, with the specific threshold set by the CC&Rs themselves (typically a majority or two-thirds of the total membership, not just those who vote).

This is a threshold based on total membership, not participation — an association with 100 units that requires 67% approval needs affirmative votes from at least 67 owners regardless of how many owners actually cast ballots. Low voter participation is the most common reason CC&R amendment campaigns fail: owners who return no ballot are treated the same as a “no” vote for purposes of meeting the threshold.

Bylaw amendments typically require a lower threshold than CC&R amendments (often a majority of total membership or a majority of votes cast at a duly noticed meeting), but still require member approval — not board action alone. The board cannot amend either document unilaterally regardless of how clearly the board believes the amendment is in the community's interest.

Assessment Increases: When Member Approval Is Required

The board has significant authority to set and increase assessments within limits — but there is a ceiling above which member approval is required. California Civil Code §5605 establishes the board's unilateral authority: the board may increase regular assessments for any fiscal year by up to 20% of the prior year's assessment, and may levy special assessments up to 5% of the association's annual gross income, without a member vote.

Special assessments exceeding 5% of the association's budgeted annual gross income require approval by a majority of a quorum of the members at a meeting noticed and held in accordance with the governing documents. The one exception is a true emergency: Civil Code §5610 permits the board to levy emergency assessments without member approval when necessary to address an immediate threat to the health and safety of the residents or to comply with a court order or governmental agency requirement that cannot wait for member approval.

Many CC&Rs impose more restrictive thresholds — requiring member approval for increases above 10% or for any special assessment regardless of amount. The governing documents control if they are more restrictive than the statutory baseline.

Exclusive Use Common Area: Two-Thirds Member Vote

California Civil Code §4600 requires approval by a vote of at least two-thirds of the total membership before the board may grant any owner exclusive use of common area that was not originally designated as exclusive use in the recorded map or declaration. This requirement exists because granting one owner exclusive use of shared property affects all other owners' rights — it reduces the pool of common area available to the community.

Common transactions that trigger §4600: converting a portion of a shared parking lot to assigned parking for one unit; granting an owner the exclusive right to use a rooftop terrace or courtyard area adjacent to their unit; creating an exclusive storage area from general common area. The two-thirds threshold is high by design — it reflects the significance of permanently altering the community's shared ownership structure.

Note that §4600 does not apply to exclusive use common area designations already made in the original recorded declaration and condominium plan — only to new grants made after the association was established. An association that wants to reassign or revoke existing exclusive use designations also faces significant procedural requirements.

Director Elections: Always a Member Ballot

Director elections always require a member secret ballot under California Civil Code §5100. The board cannot appoint directors for unexpired terms without following the required election procedures, with one narrow exception: Civil Code §5105 permits the board to fill a vacancy by appointment when the remaining term is less than certain timeframes specified in the governing documents — but only if the CC&Rs expressly authorize appointments to fill vacancies. If the governing documents are silent, vacancies must be filled by a membership election.

Even in associations where the governing documents permit appointment to fill mid-term vacancies, the appointed director serves only until the next scheduled election — they do not serve the full remaining term. And the original election that filled the seat must have been conducted by proper secret ballot procedures; an improperly conducted election cannot be ratified by board action.

Read Your Governing Documents Before Assuming Board Authority

California law establishes the floor for member voting requirements — the governing documents can and often do establish a higher threshold or additional categories. Before any board action on a significant matter, the board should review the CC&Rs and bylaws specifically to answer three questions: Does this action require member approval under Davis-Stirling? Does the CC&R or bylaw provision governing this topic require member approval? What is the specific approval threshold — majority of total membership, two-thirds, or majority of votes cast at a meeting?

Actions taken without required member approval are voidable. An owner who discovers that the board amended the CC&Rs without the required member vote, levied a special assessment that exceeded the statutory limit without member approval, or granted exclusive use of common area without a two-thirds vote can seek to void the action in court — and under Civil Code §5975, the prevailing party in such an action may recover attorney fees. The cost of confirming the proper procedure in advance is always lower than the cost of defending an improperly taken action.