Senate Bill 392 was legislation passed a year ago that, among other things, amended Civil Code §4040 regarding the definition of “individual delivery” or “individual notice” but delayed the effective date of that change to January 1, 2023.
The California Civil Code specifies that certain association notices must be provided by individual notice or delivery (as opposed to general notice or delivery). Examples of notices that must be provided by individual notice or delivery include, but are not limited to, notices of assessment increases, notices of significant changes to the association's insurance policies, and annual budget reports and annual policy statements. Prior to January 1, 2023, documents required to be provided by individual notice or delivery were to be provided to the owner, at the address last shown on the books of the association, by first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier. Individual notice or delivery could also be accomplished by email if the owner had specifically consented in writing or by email to receiving individual notices by email.
Effective January 1, 2023, Civil Code §4040 will be amended so that documents required to be provided by individual notice or delivery must be sent “in accordance with the preferred delivery method specified by the member pursuant to Section 4041.” However, if an owner does not provide a valid delivery method pursuant to Section 4041, the association is required to deliver the document by the default method of first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier addressed to the recipient at the address last shown on the books of the association.
Since the required method of providing individual notice or delivery in accordance with Civil Code §4040 is dependent upon the preferred delivery method specified by the owner pursuant to Civil Code §4041, is important for associations to understand the requirements of Civil Code §4041. Associations are required by Civil Code §4041 to solicit certain information from owners each year. As amended effective January 1, 2022 (last year), the information solicited by the association shall include the owners' preferred delivery method for receiving notices from the association, with the option of receiving notices at either or both a mailing address or a valid email address. The solicitation must include both a simple method for the owner to inform the association in writing that the member wishes to change their preferred delivery method for receiving notices from the association and a notification that the owner does not have to provide an email address to the association. The statute requires that the association solicit the specified information annually and that the association must enter the information in the association's books and records at least 30 days before providing the annual budget report (which annual budget report must be provided at least 30 and not more than 90 days before the end of the association's fiscal year). Associations should plan accordingly and ensure that their annual solicitations of member information are consistent with Civil Code §4041 as amended.
Associations will need to keep track of each owner's preferred delivery method(s) for receiving notices from the association. In addition, with respect to owners who have requested to receive notices by email, the association will need to monitor for bounce-backs or other error notifications indicating delivery failure. Civil Code §4041 requires that, if the association delivers a notice to an owner's email address and finds that the email address provided is no longer valid, the association must resend the notice to a mailing address or another email address identified by the owner.
Please contact our firm with any questions you may have regarding the required annual solicitation of member information or providing notices