Overview

HOA boards in California do not have unlimited authority to meet in private. Civil Code 4935 allows HOA boards to meet in executive session only to discuss the specific topics identified in that statute. When a board uses executive session to address anything outside those limits, it violates the Open Meeting Act.

Despite the plain language of the Davis-Stirling Act, many HOA-side attorneys have interpreted Civil Code 4935 much too broadly, often treating executive session as a catch-all device for sensitive subjects that fall outside the statute’s text. Some of those interpretations blend together distinct concepts, such as attorney-client privilege, confidentiality, litigation exposure, and internal board management, and then use that blend to justify private meetings that the statute simply doesn’t permit. And while many of the arguments used by those HOA-side attorneys are logical and understandable, the courts in California that have ruled on the scope of Civil Code 4935 have strongly implied that the items listed in that statute are exclusive, not open-ended. This in turn means that if challenged, the HOAs who have met in executive session to discuss items not explicitly listed in the law are in fact violating the Open Meeting Act.

Admittedly, this does create a difficulty for HOAs that does not appear to have been well addressed under the current version of the Davis-Stirling Act. On the one hand, HOA boards need confidential legal advice, and attorney-client privilege protects those communications from disclosure. On the other hand, however, privilege does not control whether a board may meet in executive session. Civil Code 4935 controls that question. A board can protect privileged communications and still violate the Open Meeting Act if it meets in private to discuss a topic that does not fall within the statute. That separation between privilege and meeting authority creates tension that boards and HOA-side attorneys must navigate, and it explains why executive session remains one of the most misused areas of HOA governance. California courts have consistently ruled that HOA boards must adhere to statutory requirements for open meetings and limit the use of executive sessions to narrowly defined topics, reasoning that the Legislature explicitly limited closed executive sessions to ensure transparency and accountability.

Homeowners who understand these limits gain a significant advantage. When a board moves a discussion into executive session without statutory authority, it is violating the Open Meeting Act. And recognizing that distinction allows homeowners to identify improper executive sessions and demand the openness from their HOAs that the Davis-Stirling Act requires.

[I’ve written extensively on the Open Meeting Act, and if you’re interested in learning more about that topic, you may want to read the following two Fact Sheets “California HOA Open Meeting Act: Homeowner Rights and Board Obligations” and “What to Do When Your HOA Violates California’s Open Meeting Act.” If you’d prefer to watch or listen to an episode of my HOA HELL podcast where we talk about the ins and outs of the Open Meeting Act, check out “California HOAs: The Open Meeting Act.”]

Key Points

 

HOA Boards Meeting in Executive Session May Only Discuss 6 Topics

Civil Code 4935 does not give HOA boards discretion to decide what belongs in executive session. The statute identifies a closed list of subjects, and each one serves a specific purpose tied to confidentiality, legal exposure, or member privacy. If a discussion does not fit within one of these categories, the board must hold that discussion in open session.

Boards often try to stretch these categories by focusing on how sensitive a topic feels rather than what the statute permits. That approach fails. The subject of the discussion controls, not the level of discomfort, not the presence of legal counsel, and not the board’s preference for privacy. The only six topics that HOA boards may legally discuss while in executive session are:

1. Litigation
2. Formation of Contracts with Third Parties
3. Member Discipline
4. Personnel Matters
5. Meetings With Members About Assessment Payment Plans
6. Foreclosure Decisions

Litigation. HOA boards may meet in executive session to consider litigation. That includes active lawsuits and situations where the HOA faces real legal exposure that could lead to litigation. For example, a board may meet in executive session to discuss defense strategy in a pending lawsuit, evaluate a settlement demand, or analyze whether a homeowner’s conduct will likely lead to legal action.[Many HOA-side attorneys routinely interpret Civil Code 4935 too broadly by importing expansive definitions of “litigation” from other statutes, including the Brown Act, to justify executive session for any situation involving potential legal risk. While I understand the reasoning behind this advice, it’s not supported by the plain language of the statute, nor by the case law interpreting it. Civil Code 4935 does not incorporate those broader definitions, and boards must tie the discussion to actual or realistically anticipated litigation, not general legal concerns.]

Formation Of Contracts With Third Parties. HOA boards may meet in executive session to discuss the formation of contracts with third parties, such as landscapers, managers/management companies, or contractors. This category covers negotiations, bidding strategies, and the terms under consideration before the HOA enters into an agreement with a third-party vendor. For example, a board may meet in executive session to review competing vendor proposals, negotiate pricing, or evaluate contractual risks before signing a contract.[Many HOA-side attorneys have interpreted Civil Code 4935 to permit executive session meetings to address contract-related issues, such as contract termination or general vendor disputes. Although Civil Code 4935 only mentions the “formation” of contracts, since “formation” can be interpreted to mean, for example, renewal of a contract (or deciding not to renew a contract), courts would probably support executive session discussions that directly concern whether the HOA will enter into a new contractual relationship, continue an existing one on new terms, or decline to do so. That said, the farther the discussion moves away from contract formation and into ordinary performance disputes, operational complaints, or post-formation conflict, the weaker the argument becomes.]

Member Discipline. HOA boards may meet in executive session to address member discipline. This category includes disciplinary hearings, violation notices, and decisions regarding fines or other enforcement actions. For example, a board may meet in executive session to hear a homeowner’s response to an alleged rule violation, evaluate evidence, and decide whether to impose a penalty.[If you read Civil Code 4935 carefully, you’ll see that it actually requires discussing disciplinary issues in executive session if the member requests it. Despite that, HOA boards almost always default to executive session because it protects the HOA from claims of public embarrassment, and that approach generally makes sense in practice, even though the statute does not mandate it in every case. The really interesting question is what would happen if a homeowner insisted on a public disciplinary hearing and demanded that the HOA board address the matter in open session. I’ve never had a case where this happened, but I could see an HOA insisting on holding the meeting in executive session, especially if they knew that the homeowner wanted a public “show trial” to make some broader point. In such a case, however, I think the HOA would lose because the statute does seem to put that decision into the hands of the homeowner, not the board.]

Personnel Matters. HOA boards may meet in executive session to address personnel matters involving employees of the HOA. This category includes hiring, firing, compensation, performance evaluations, and workplace discipline. For example, a board may meet in executive session to review an employee’s performance, decide whether to terminate employment, or set compensation terms.

Meetings With Members About Assessment Payment Plans. HOA boards may meet in executive session to meet with a member regarding that member’s request for a payment plan to address delinquent assessments. This category focuses on financial discussions between the HOA and a specific member. For example, a board may meet in executive session to review a homeowner’s financial circumstances, negotiate payment terms, and evaluate compliance with Civil Code 5665.[Many HOA-side attorneys routinely interpret Civil Code 4935 too broadly by treating all collection-related issues as proper for executive session. The statute limits this category to meetings with the member about a payment plan, not general collection strategy or enforcement discussions.]

Foreclosure Decisions. Boards must meet in executive session to decide whether to initiate foreclosure on a lien. This category requires a formal decision by the board and reflects the seriousness of foreclosure as an enforcement tool. For example, a board must meet in executive session to review the delinquency, evaluate alternatives, and vote on whether to proceed with foreclosure under Civil Code 5705.Each of these categories serves a defined purpose, and each one has limits. Boards that stay within those limits can use executive session properly. Boards that stretch these categories to cover unrelated topics step outside the statute and violate the Open Meeting Act.

What HOA Boards Must Disclose After Executive Session

Civil Code 4935 requires HOA boards to disclose what they discussed in executive session. The statute does not let HOA boards meet in private and then stay silent. After every executive session, HOA boards must generally note the matters discussed in the minutes of the next open meeting.

That requirement forces HOA boards to identify the subject of the discussion in concrete terms. HOA boards cannot satisfy that requirement with vague labels or empty phrases. The minutes must identify the category of discussion in a way that connects to one of the subjects Civil Code 4935 permits.

Homeowners can use those disclosures to check what the HOA board actually did. Homeowners can read the minutes and compare the stated subject to the issue the HOA board handled at the time. When the HOA board labels a discussion as “litigation,” “personnel,” or “member discipline,” that label must match the real issue. If it does not match, the HOA board cannot justify the executive session.

HOA boards often expose their own violations through these disclosures. When the minutes fail to identify a qualifying subject, or when the description does not match the situation the HOA board handled, the problem becomes clear. The HOA board cannot rely on silence or vague wording to fix that mismatch.

Civil Code 4935 uses this disclosure requirement to prevent executive session from disappearing from view. HOA boards must leave a record of what they discussed. That record must show a lawful basis for the executive session.

Executive Session Is Not A Catch-All For Confidential or Privileged Matters

Civil Code 4935 does not allow HOA boards to move discussions into executive session simply because the topic feels sensitive, involves legal advice, or could create conflict within the community. The statute limits executive session to specific subjects, and confidentiality alone does not create authority to meet in private. If the topic does not fall within Civil Code 4935, the board must hold the discussion in an open meeting.

HOA boards often face situations where a topic touches on multiple concerns at once. A dispute with a homeowner may involve legal advice, enforcement issues, and reputational concerns. A vendor problem may involve contract terms, performance complaints, and potential liability. Those overlapping issues, however, do not expand the statute. The board must still anchor the discussion to one of the enumerated categories in Civil Code 4935. If the discussion drifts beyond that anchor, the board must return to open session.

This limitation draws a hard line that HOA boards shouldn’t ignore. Executive session exists as a narrow exception to the Open Meeting Act, not as a flexible tool for managing sensitive issues. Admittedly, this tension leads to a variety of real-world problems, some of which have no obvious solution other than the Legislature amending Civil Code 4935 to clarify.

The more creative HOA boards often respond to that tension by collapsing different concepts into a single justification for meeting in private. They point to confidentiality, legal advice, or the risk of conflict and treat those concerns as interchangeable reasons to close the meeting. Although the motivation makes sense (because the tension it is addressing is quite real), the statute does not allow that. Each concept has a different function, and none of them expands the list of permissible topics under Civil Code 4935.

HOA boards cannot, therefore, properly convert an otherwise open-session topic into an executive session matter by labeling it confidential. For example, a board cannot move a discussion about general rule enforcement trends, community complaints, or policy decisions into executive session simply because the discussion may involve uncomfortable facts or critical comments about homeowners. Those topics must remain in open session unless they directly fall within one of the categories identified in Civil Code 4935.

The same problem appears when HOA boards rely on the involvement of legal counsel as the reason to close the meeting. HOA boards often assume that the presence of legal counsel allows them to meet in executive session. That assumption, while also quite understandable, is wrong, at least as far as Civil Code 4935 goes. For example, an HOA board may properly meet in executive session with counsel to discuss litigation strategy, evaluate legal exposure, or respond to a claim because those discussions fall within the litigation category. But the presence of legal counsel does not, by itself, authorize a closed meeting. Civil Code 4935 does not list “legal advice” as an independent basis for executive session. That creates a real tension: attorney-client privilege protects the substance of legal advice, while Civil Code 4935 limits when a board may meet in private. [This has never actually come up in a case we’ve handled, and I’m unaware of any appellate court case that addresses this tension. I therefore have no idea how this would come out in the end.]

In short, disputes between neighbors, criticism of board decisions, discussions with counsel, and complaints about vendors all create pressure to move discussions behind closed doors. That pressure does not change the law. If the subject of the discussion does not fall within one of the categories identified in Civil Code 4935, the board must address it in open session. How courts will ultimately resolve the practical tension this creates remains an open question.

How Bad HOAs (and Some Good Ones) Misuse Executive Session In Practice

Most homeowners never hear what gets said in executive session. That is the point. But homeowners do see enough to recognize when an HOA board pushes too much behind closed doors.

The problem rarely shows up as a single obvious violation. It shows up as a pattern. Agendas list vague items like “legal matters,” “personnel,” or “executive session discussion.” Open meeting minutes include generic statements that reveal nothing about what the HOA board actually discussed. Over time, entire categories of HOA business quietly disappear from open session and reappear only as brief, sanitized references in the minutes.

That pattern matters because Civil Code 4935 does not allow HOA boards to hide broad categories of business in executive session. The statute allows specific subjects. When an HOA board consistently moves discussions about rules, vendors, policies, or disputes behind closed doors, it signals that the board is using executive session as a shield, not as a limited exception.

Another common tactic involves expanding legitimate categories beyond their limits. A disciplinary matter becomes a broader discussion about community policy. A contract negotiation turns into a running critique of vendor performance or management decisions. Those expansions allow HOA boards to keep ongoing issues in executive session long after the original justification disappears.

Good HOA boards can fall into the same patterns. The pressure to avoid conflict, control messaging, and manage risk pushes discussions into executive session even when the statute does not support it. That doesn’t excuse the violation, but it does explain why it happens. Bad HOAs, on the other hand, scheme and plan to intentionally violate the Open Meeting Act because, again, they prefer to operate in secret.

What You Should Do When Your HOA Illegally Uses Executive Session

If your HOA is abusing the executive session, there are several steps you can take to challenge that conduct and force the board to justify its actions under Civil Code 4935.

Force The HOA Board To Commit To A Statutory Justification

Start with the record the HOA board created. Pull the agenda and the minutes from the next open meeting. Focus on how the HOA board described the executive session. Civil Code 4935 requires the board to generally note the matters discussed. That description must connect to one of the subjects the statute permits.

Do not accept vague labels. If the minutes refer to “legal matters,” “executive session,” or any other generic phrase, force the HOA board to identify the actual subject it claims justified the closed meeting. Make the board tie that subject to one of the categories in Civil Code 4935.

Put your objection in writing. Identify the meeting, quote the board’s description, and explain why that description does not match any statutory category. Keep it direct. Force the HOA board to respond to the statute, not to general complaints.

Use The HOA Board’s Own Pattern Against It

Look beyond a single meeting. Compare multiple agendas and minutes. If the HOA board repeatedly pushes different issues into executive session under the same vague labels, call that pattern out. A pattern exposes misuse far more clearly than an isolated example.

Pay attention to what disappears from open session. If the HOA board consistently moves discussions into executive session when those discussions do not actually involve contract formation, litigation, member discipline, or another qualifying category, then you know that your board is treating Civil Code 4935 as if it broadly worded.

Understand The Legal Consequences Of Misuse of Executive Sessions

Civil Code 4935 does not give HOA boards flexibility to ignore its limits. When an HOA board moves a discussion into executive session without statutory authority, it violates the Open Meeting Act. Homeowners can challenge those violations in court. A court can void decisions that an HOA board makes in violation of the Open Meeting Act. A court can also award attorneys’ fees to a prevailing homeowner. That fee exposure changes the equation. HOA boards that treat executive session casually risk turning routine governance decisions into costly litigation.

HOA boards also create evidentiary problems for themselves when they misuse executive session. When a board hides discussions that belong in open session, it creates gaps in the record. Those gaps invite scrutiny. In litigation, those missing details often raise more questions than answers, especially when the HOA board later tries to justify its decisions.

When bad HOA boards get away with operating in secrecy, it leads them to expand that abuse over time by pulling more and more HOA business behind closed doors. The only way to stop that conduct is to challenge it. Identify the specific meetings, tie the subject matter to Civil Code 4935, and force the HOA board to respond in writing. If your HOA board refuses to respond or correct the problem, escalate the issue and prepare to enforce your rights.

If Your HOA Is Abusing The Executive Session, Call the HOA Attorneys at MBK Chapman

The HOA attorneys that I’ve trained are among the very best in California. We’re experts at taking down bad HOA boards, and if your HOA is abusing the rules surrounding executive session, call us, and we’ll set them straight.

 

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