Overview

More and more California HOAs are moving toward electronic voting, and if yours hasn’t already raised the issue, it probably will soon. The concept is straightforward: instead of the familiar paper ballot stuffed inside two envelopes and mailed to an inspector of elections, members cast their votes through an internet-based voting system. It is also entirely optional. Nothing in Civil Code 5105 requires your HOA to switch to electronic voting. But if your HOA does adopt it, Civil Code 5105 sets out a specific framework that governs how electronic voting must work, and HOA boards that cut corners on that framework do so at their legal peril. This Fact Sheet explains what that framework requires, what your HOA cannot do, what rights you have as a voter, and what tools Civil Code 5145 gives you if your HOA runs an electronic election the wrong way.

The law creates two models for HOAs that choose to go electronic. Under the first, electronic voting is the default and members who prefer paper ballots must opt out. Under the second, paper remains the default and members who want to vote electronically must opt in. In either case, your right to choose how you vote is protected, and your HOA must remind you of that right for every election cycle. To adopt electronic voting at all, your HOA board must first amend its election rules through the standard rulemaking process under Civil Code 4360, including the mandatory 28-day member comment period. A board that skips that process and simply begins using electronic voting has not legally implemented it.

Not every HOA-related vote/election qualifies for electronic balloting. Civil Code 5105 expressly carves out any election regarding regular or special assessments. In plain terms, that means any vote that requires membership approval because the proposed assessment exceeds the board’s unilateral authority, specifically a general assessment increase above 20% or a special assessment above 5% of the HOA’s gross budgeted expenses, must still use paper ballots. Every other type of vote, including director elections, CC&R amendments, and exclusive use common area approvals, is eligible for electronic balloting once the HOA properly adopts it.

The integrity requirements that have always governed paper ballot elections carry over to electronic voting in full. The inspector of elections must remain an independent third party, not a board member, board candidate, or current HOA vendor. The system itself must authenticate each voter’s identity, protect ballot secrecy, and issue a receipt to every member who votes electronically. Your individual voting choice must be permanently separated from any identifying information, meaning no one, including the inspector, can connect a specific vote to a specific member. If your HOA runs an electronic election and something goes wrong, Civil Code 5145 gives you one year from the announcement of election results to bring a legal challenge. A homeowner who prevails can recover attorney’s fees, including fees paid to consult with California HOA attorneys before filing.

[If you’d prefer to watch a video on this topic, Sam and I discussed the electronic voting law in depth in our HOA podcast episode “Electronic Voting in California HOAs.”]

Key Points

Civil Code 5105, Civil Code 5110, and Civil Code 5145 form an interlocking statutory framework that governs every aspect of electronic voting in California HOAs, from how an HOA board adopts it to how a homeowner challenges it. The requirements are specific and mandatory, not discretionary guidelines that boards can follow loosely. HOA boards that implement electronic voting without strict compliance with the law create election results that homeowners can challenge and courts can void. Knowing the rules puts you in a significantly stronger position than most homeowners who show up to an electronic election uninformed.

• Electronic voting in California HOAs is optional, not mandatory. Civil Code 5105 does not require any HOA to adopt electronic voting. The decision belongs entirely to the HOA board, and most California HOAs have not yet made that switch. Implementing it correctly requires real preparation, including selecting a compliant technology platform, amending the election rules through a formal rulemaking process, and coordinating with a qualified inspector of elections. If your HOA board announces that electronic voting is coming, that is the board exercising its discretion under Civil Code 5105, not complying with a legal mandate.
  • To legally adopt electronic voting, your HOA board must amend its election rules through the formal rulemaking process under Civil Code 4360. Electronic voting does not become legal in your HOA simply because the HOA board decides to use it. The HOA board must adopt a formal election operating rule that expressly authorizes electronic secret ballots, and that rule must go through the standard Civil Code 4360 process, which includes providing general notice of the proposed rule, a mandatory 28-day member comment period, adoption at a properly noticed open meeting, and notice to members within 15 days after adoption. An HOA board that skips any of those steps, shortens the timelines, or begins using electronic voting before completing that process has not legally implemented electronic voting, and any election conducted under an improperly adopted rule is vulnerable to challenge under Civil Code 5145. [You can learn all about the proper rule-changing procedure by reading my Fact Sheet, “HOA Rules in California: Legal Authority and Rulemaking Limits.”]
• The Davis-Stirling Act gives your HOA two models for implementing electronic voting, and your right to choose how you vote is protected under either one. Under the first model, electronic voting is the default and members who prefer the traditional paper ballot must affirmatively opt out. Under the second model, paper ballots remain the default and members who want to vote electronically must opt in. The HOA board chooses which model to adopt, but under either model, the HOA board cannot eliminate your ability to choose your voting method. Civil Code 5105 requires your HOA to remind you of that right at every election cycle, not just when it first implements electronic voting. Members who choose electronic voting must provide the HOA with a valid email address, and members for whom the HOA has no email address must automatically receive a paper ballot. The election operating rule must also allow any member to switch their preferred voting method, provided they make that request no later than 90 days before the election.
• Not every HOA vote can be conducted electronically. Civil Code 5105 expressly prohibits electronic voting for any election regarding regular or special assessments. In practical terms, this carve-out applies when a membership vote is actually required, which only happens when the proposed assessment exceeds the HOA board’s unilateral authority (e.g., an increase of a general assessment of greater than 20% from the prior year, or a special assessment of over 5% of that year’s gross budged expenses), meaning that paper ballots are still required to increase assessments. Every other type of HOA vote, including director elections, CC&R and bylaw amendments, and Civil Code 4600 votes to convert common area to exclusive use, your HOA can conduct electronically once it properly adopts electronic voting. [You can read more about when your HOA can raise assessments without a member vote in my Fact Sheet, “When Can a California HOA Raise Assessments Without a Vote?”]
• Electronic voting gives your HOA board no new authority over your ballot and eliminates none of your existing ballot rights under the Davis-Stirling Act. Without exception, the privacy and integrity standards that have always governed paper ballot elections in HOAs apply to electronic elections. Under Civil Code 5110, the inspector of elections must still be a genuinely independent third party, meaning someone who is not an HOA board member, not a candidate for director, not related to an HOA board member or candidate, and not a person or business currently under contract with the HOA for any compensable services other than serving as inspector. So, for example, an HOA board that uses its management company as inspector of elections for any election, including an electronic election, faces serious legal risk, particularly given the expanded technical responsibilities the inspector must fulfill under Civil Code 5110. [If you’d like to learn about how HOA elections work in California HOAs, read my Fact Sheet “California HOA Election Rules and Homeowner Rights.”]
  • The electronic voting system itself must satisfy specific technical requirements, and the inspector of elections bears personal responsibility for ensuring the system meets every one of them. Under Civil Code 5110, your HOA electronic voting system must authenticate each voter’s identity, verify that each ballot was not altered in transit, and permanently separate all identifying information from the actual ballot, making it impossible to connect any vote to any specific member. Every member who casts an electronic ballot must receive a confirmation receipt from the system. The system must store all ballots and keep them accessible for recount, inspection, and review. At least 30 days before the voting deadline, the inspector must provide each member enrolled in electronic voting with a method to confirm that their device communicates successfully with the voting system. These are hard statutory requirements under Civil Code 5110, and a system that fails any one of them gives an affected homeowner grounds to challenge the election under Civil Code 5145.
• If you prove an election procedure violation by a preponderance of the evidence, a court must void the results unless the HOA proves its noncompliance did not affect the outcome. That is a meaningful burden for the HOA to carry, particularly when the margin of victory is narrow. The HOA cannot simply argue that its intentions were good or that the process was substantially followed. It must affirmatively prove that the specific violation had no effect on which candidates won or how the vote turned out, and if it cannot make that showing, the court must void the results.
  • If your HOA runs an electronic election incorrectly, Civil Code 5145 gives you real enforcement tools. You have one year from the announcement of election results to bring a legal challenge, and the remedies available to you are meaningful. You can ask a court to void the election results, seek injunctive relief, or pursue both. Civil Code 5145 also allows you to bring that challenge in small claims court if the amount in controversy falls within the small claims jurisdictional limit, making this one of the very few California statutes that allows a homeowner to seek injunctive relief through small claims court. Because electronic voting disputes involve specific, documentable statutory requirements, a well-documented violation can make for a compelling and efficient small claims case.
  • A homeowner who prevails under Civil Code 5145 is entitled to attorneys’ fees and up to $500 per violation. Even better, a prevailing HOA cannot recover its own attorneys’ fees unless the court finds that the homeowner’s lawsuit was frivolous (i.e., filed without merit). That fee-shifting provision significantly changes the leverage dynamic when a homeowner challenges an election. In short, a bad HOA that violates the Davis-Stirling Act’s election laws faces real financial exposure if it defends a losing or bad faith position. Even in small claims court, a homeowner who consults with an attorney before filing can recover the fees paid for that consultation if they win, a provision that exists almost nowhere else in California law. [For those of you who want to learn more about fee-shifting statutes relevant to their HOA, I wrote a Fact Sheet in which I detailed all of the fee-shifting statutes located throughout the Davis-Stirling Act titled “When Can You Recover Attorney Fees from Your California HOA? Key Laws Explained.”]
• If your HOA has adopted electronic voting and something about the process seems wrong, call the HOA attorneys at MBK Chapman. MBK Chapman is widely viewed as the most experienced homeowner-side HOA law firm in California, and its HOA attorneys are experts in addressing and litigating disputes involving improperly adopted election rules, compromised inspectors, and other election anomalies.

Electronic voting will become increasingly more common in California HOAs, and the statutory framework governing it is detailed, exacting, and fully enforceable. Civil Code 5105, Civil Code 5110, and Civil Code 5145 work together to protect your vote, preserve your ballot secrecy, and give you real legal remedies when your HOA gets it wrong. These protections do not depend on HOA board discretion. The law defines them, and homeowners who understand those definitions hold real leverage when their HOA cuts corners.

FAQs

About Michael Kushner

Michael Kushner is a California attorney with over 30 years of experience representing homeowners in disputes with their HOAs. He is widely regarded as California’s leading homeowner-side HOA attorney, and has built one of the state’s most prominent law practices dedicated to holding HOAs accountable under the Davis-Stirling Act and California law.

In addition to his law firm’s work, Michael is a recognized lecturer, author, and the host of the hit HOA HELL podcast, where he provides homeowners living in HOA-governed communities with clear, practical strategies for dealing with bad HOAs. He’s also the author of the best-selling book, HOA HELL | California Homeowners’ Definitive Guide to Beating Bad HOAs, which has become a go-to resource for both homeowners seeking real-world solutions to their HOA disputes, as well as those good HOA board members who are interested in doing a good job.

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