Overview

California HOA elections and board compositions frequently become legally defective because HOA boards and managers misunderstand what the Davis-Stirling Act means by the word “owner.” Many people assume that ownership is obvious. And sometimes it is. If title is recorded in the name of an individual homeowner or a married couple, the concept of ownership is relatively straightforward. But once title is held through a corporation, LLC, trust, or some other arrangement, confusion spreads quickly, and bad legal assumptions often follow.

California law treats corporations, LLCs, and trusts very differently, and that distinction becomes critical in the HOA context. Corporations and LLCs are separate legal entities capable of holding title to real property in their own names. Because they qualify as separate legal persons under California law, they may authorize an agent or representative to act on their behalf with respect to HOA voting and board participation. Trusts, however, operate very differently. Contrary to popular belief, a trust is not a separate legal entity capable of owning property. Trustees hold legal title to trust assets. So when recorded title identifies an individual “as trustee” of a trust, the trustee, not some separately appointed “trust representative,” qualifies as the owner for purposes of the Davis-Stirling Act.

Confusion also frequently arises when someone claims HOA voting rights or board eligibility through an unrecorded deed. For purposes of the Davis-Stirling Act, recorded and unrecorded deeds do not carry the same legal significance. HOA membership rights depend on ownership reflected in the property’s recorded chain of title, which means a private “pocket deed” that was never recorded does not confer the right to vote in HOA elections, sit on the HOA board, or exercise other statutory rights reserved to HOA members.

This is a critical distinction because under Civil Code 5105, only HOA members may vote in HOA elections or serve on HOA boards, and Civil Code 4160 ties HOA membership directly to ownership of a separate interest within the development. Accordingly, the relevant legal question is not who lives in the property, pays the mortgage, receives permission from the family, or claims authority through some private arrangement. The relevant legal question is who qualifies as the owner under the Davis-Stirling Act.

This Fact Sheet explains who qualifies as an “owner” under the Davis-Stirling Act, why trusts do not function like corporations or LLCs for HOA purposes, and how California’s recording laws affect ownership disputes. It also identifies why unrecorded deeds fail to create HOA voting or board rights even when those deeds might otherwise remain enforceable between the parties who signed them.

Key Points

Questions about HOA voting rights and board eligibility often sound simple until someone starts claiming ownership through a trust, an LLC, a corporation, an unrecorded deed. Once that happens, HOA boards and managers frequently rely assumptions that directly conflict with the Davis-Stirling Act. Those mistakes invalidate board compositions, contaminate elections, and expose HOAs to significant legal challenges. Understanding who legally qualifies as an “owner” is critical because under Civil Code 5105 and Civil Code 4160, ownership controls HOA membership, and HOA membership controls voting rights and eligibility to serve on the board.

• Only HOA members may vote or sit on the HOA’s board of directors. Civil Code 5105 limits HOA voting rights and board eligibility to HOA “members.” Civil Code 4160, in turn, ties membership directly to ownership of a separate interest within the development. This means that HOA voting rights do not arise from residency, family relationships, informal permission, property management authority, payment of mortgage obligations, or long-term occupancy. The Davis-Stirling Act ties those rights to one thing: ownership status. If a person does not legally qualify as an owner within the meaning of the Davis-Stirling Act, that person cannot lawfully vote in HOA elections or serve on the HOA board.
• California law treats corporations and LLCs differently than trusts. Under California law, both corporations and LLCs are separate legal entities and are thus capable of holding title to real property in their own corporate names. For that reason, corporations and LLCs may become members of HOAs. Since both are legal entities, meaning they are legal people, but not actual individuals, a corporation or LLC may select a representative to act on its behalf in HOA matters, including voting and board participation. Trusts, however, operate very differently. They are not separate entities, and the law does not consider them separate people.
  • Trusts are NOT separate legal entities capable of owning property. Because a trust is neither a legal entity nor a separate “person” under California law, a trust cannot hold legal title to property in its own name (i.e., the “Smith Family Trust” cannot own property). Instead, the law identifies the trustee of a trust as the owner, and the trustee therefore holds legal title to trust property. That is why correctly titled deeds identify ownership in the name of the trustee, not the trust itself, e.g., title is properly held as follows: “John Smith, Trustee of the Smith Family Trust.” And just as individual owners, like a husband and wife, cannot designate someone else to vote or serve on their HOA board in their places, California law prohibits a trust from doing the same thing. [This was the central issue in one of our cases where an HOA’s manager and board accepted a letter from the trustees of a trust who named their daughter, who resided at the property, as their “trust representative.” At the time our client retained MBK Chapman, the daughter was sitting on the board of directors. For more facts on this case, keep reading.]
• Unrecorded deeds do not confer ownership or HOA membership rights under the Davis-Stirling Act. Under general California property law, an unrecorded deed may still remain valid and enforceable between the grantor and grantee even though the deed never enters the public record. Many people therefore mistakenly assume that if an unrecorded deed is legally enforceable in some contexts, it must automatically confer HOA membership rights as well. That assumption is incorrect because the Davis-Stirling Act approaches ownership from a different angle. For Davis-Stirling Act purposes, an unrecorded deed, often referred to as a “pocket deed,” does not confer ownership status within the meaning of Civil Code 4160, and thus under Civil Code 5105, such pocket deeds do not confer voting rights on their holders. [Although beyond the scope of this Fact Sheet, the recordation of property deeds  serves a critical public function because it allows third parties to determine ownership by reviewing the public land records rather than relying on an unknowable number of undisclosed private agreements. That public-record system also allows HOAs to determine who qualifies as a member entitled to vote, serve on the board, inspect records, and exercise other rights tied to ownership under the Davis-Stirling Act.]
  • A grantee holding an unrecorded pocket deed can neither vote nor sit on an HOA’s board. Based on what I’ve presented thus far, it seems obvious that someone holding a pocket deed, as a non-owner/member, cannot vote or sit on the board of an HOA. In many cases, however, what’s obvious does not reflect reality. Indeed, this issue arises more frequently than you might imagine, and typically involves an individual sitting on a board of a badly managed HOA, who discovers that they do not legally qualify as an HOA member under the Davis-Stirling Act. Rather than resigning from the board, however, these bad directors attempt to cheat the system by obtaining a deed transferring a small percentage of the property (e.g., 1%) to them with no intention of ever recording that deed with the county recorder. The reasons for why the owners of these properties don’t wish the transferees to record those deeds is beyond the scope of this Fact Sheet. But the point remains. The bad director points to the unrecorded deed and claims ownership status. [This is precisely what happened in the case I described in part above. Once MBK Chapman made it clear to the manager that his prior treatment of the trust in question as an entity was legally flawed, the manager and the director at issue, who you may recall was residing at the property owned by her parents as trustees of their family trust, concocted the scenario involving a 1% transfer reflected in a pocket deed. I presented the law to this manager, directed my letter to each of the other directors, and advised them that if they failed to obtain a legal opinion on the issue (which from any competent HOA attorney would result in this director’s resignation), my client would sue each of them personally for gross negligence and breach of fiduciary duty. The bad director resigned. I then helped my client organize a recall, forced the resignation of all but 1 of the directors, and upon the election of a new board, the incompetent manager was fired, and new one was hired in his place.]
  • HOA governing documents cannot override the Davis-Stirling Act’s definition of a “member.” Some HOA boards attempt to expand board eligibility to non-owners by pointing to outdated or poorly drafted governing documents that allow “representatives” or “agents” to serve. Under Civil Code 5105, however, the HOA must disqualify a person from nomination if that person is not a member at the time of nomination. Because Civil Code 4160 defines a member as an owner, any HOA rule or bylaw that attempts to seat a non-owner, including a “trust representative” or a holder of an unrecorded deed, is void and unenforceable.
• Properly recorded deeds confer full membership rights regardless of the ownership percentage. While unrecorded “pocket deeds” fail to create HOA membership, a deed that the owner actually records with the county recorder is legally sufficient to confer membership under Civil Code 4160, even if it only reflects a 1% interest. Once a person becomes a record owner, they qualify as a member and may run for the board. However, this does not grant the household extra voting power. Under standard HOA “one-vote-per-separate-interest” rules, the owners of a single property must still cast only one collective vote, regardless of how many individuals appear on the recorded title.
• HOA boards and managers who ignore recorded ownership create major legal problems for the HOA. Ineligible individuals who vote or sit on the board make HOA elections vulnerable to challenge. Illegally seated directors also jeopardize board decisions when they participate in votes, especially those involving budgets, contracts, litigation decisions, foreclosures, liens, elections, or rule enforcement and fines. Homeowners who discover the kinds of irregularities discussed in this Fact Sheet should immediately demand that the HOA verify proper recorded ownership within the meaning of Civil Code 4160 before continuing to allow the person in question to vote or participate as a director.
• If your HOA refuses to correct illegal voting or board participation, call the HOA attorneys at MBK Chapman. The expert HOA attorneys at MBK Chapman have decades of experience challenging defective HOA elections, illegally seated board members, and HOA governance practices that violate the Davis-Stirling Act.

Badly managed HOA boards subject themselves and their HOAs to tremendous liability and costs when they ignore the foundational principles of the Davis-Stirling Act. When boards fail to distinguish between legal entities like LLCs and non-entities like trusts, they invite litigation that can dismantle years of board actions. The law is clear: only actual, recorded owners qualify as HOA members. Once homeowners force their boards to stop accepting pocket deeds and authorization letters, they can restore legal integrity to their HOA’s governance.

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.

About MBK Chapman Fact Sheets

Homeowners searching for answers online will often come across articles that appear authoritative, but are actually written as search-engine marketing content rather than by an experienced HOA lawyer. These pieces tend to prioritize keyword density over clarity, accuracy, or legal context, which often leaves homeowners more confused than informed.

At MBK Chapman, our Fact Sheets are part of our HOA Law Library and are written by Michael Kushner, an HOA lawyer with decades of hands-on experience representing California homeowners. In fact, Michael Kushner is the HOA lawyer who pioneered the systems and strategies used by some of California’s most successful homeowner-side HOA law firms.

Each Fact Sheet is deliberately concise, statute-based, and designed as a quick-reference guide to help homeowners understand key HOA laws and enforcement rules at a glance.

AND DON’T FORGET TO TUNE INTO MY PODCAST, HOA HELL

YOU CAN ALSO ORDER MY GROUNDBREAKING BOOK

HOA HELL | California Homeowners’ Definitive Guide to Beating Bad HOAs

Amazon  |  Barnes & Noble