This is shaping up to be a busy year for proposed legislation affecting community associations. Most of the legislation being proposed is typical in that if it ends up getting signed into law by the Governor, it will not take effect until January 1 of 2022. However, Senate Bill (SB) 391 is pending legislation that is currently working its way through the State legislature as a proposed “urgency statute,” meaning that it would take effect immediately upon being signed by the Governor. SB 391 is a response to an issue with existing law that was made apparent by the COVID-19 pandemic.
Over the past year-plus, most associations have been conducting their meetings virtually (via Zoom, GoToMeeting, etc.) due to pandemic-related restrictions on gatherings, social distancing guidelines, and general safety concerns. All along, however, the conducting of entirely virtual association meetings (i.e., without any physical location where members could attend) has been without definitive legal authority and, in fact, contrary to a strict interpretation of statutory law. For example, with respect to board meetings, Civil Code §4090(b) requires that, if an open board meeting will be conducted by teleconference (through audio or video or both), “the notice of the teleconference meeting shall identify at least one physical location so that members of the association may attend, and at least one director or a person designated by the board shall be present at that location.” With respect to membership meetings (such as an association's annual meeting of members), Corporations Code §7510(f) provides that absent consent of the members to conduct such meetings by electronic transmission or electronic video screen communication, the meeting shall be held at a physical location. Nevertheless, the statutory “physical location” requirement for both board and membership meetings has generally been disregarded during the declared state of emergency resulting from the COVID-19 pandemic.
SB 391 seeks to provide an exception to the physical location requirement for association board and membership meetings during a declared federal, state, or local disaster or emergency. SB 391 would add a new Section 5450 to the California Civil Code allowing associations in areas affected by such disasters or emergencies to hold meetings entirely by teleconference (through audio or video or both) without any physical location as long as certain conditions are satisfied with respect to noticing and conducting the meetings. As currently drafted, SB 391 would require, among other things, that the meeting notice include clear technical instructions on how to participate by teleconference and include the telephone number and email address of a person who can provide technical assistance with the teleconference process both before and during the meeting. In addition, every director and member would need to have the same ability to participate in the meeting that would exist if the meeting were held in person, any vote of the directors would need to be conducted by a roll call vote, and any person who is entitled to participate in the meeting would need to be given the option of participating by telephone and not just by video (most video conference platforms already include an option for participating by telephone). You can review the full text of SB 391 here.
SB 391 is sensible legislation that we would expect to be signed into law. The irony, of course, is that by the time it does become law, the COVID-19 emergency that prompted the legislation will hopefully be nearing an end.