Email Issues in the HOA: Directors Should Not be Conducting HOA Business by Email or Texting

Electronic communications through texting and email have become normal and accepted methods of communicating in our everyday lives.  As such, it is only natural that those who are responsible for the management of homeowners associations frequently communicate with each other via text and email. While normal electronic exchanges between association board members is acceptable and facilitates operations, absent an emergency situation that requires an  immediate decision, the conducting of HOA business that necessitates discussion and voting via texting and/or emailing between directors is prohibited by most states and association governing documents.

The management of a homeowners association is vested in the association’s board of directors and virtually all states have statutes, and all associations have governing documents such as bylaws that mandate the conducting of HOA business at properly noticed meetings. While certain business may be conducted outside the presence of the non-director association members in executive session meetings, all other meetings of the association’s board must be open to the members of the association. As such, unless there is an emergency situation, it is violation of most state laws and association governing documents for board members to conduct meetings and reach decisions via electronic communications.

Regardless of whether the matter involves major or minor issues or expenses, if a decision by the association’s board of directors is required, that decision has to be made by the board, acting as a body at a properly noticed meeting where a quorum is present and discussion and deliberation concerning the topic take place.  In states such as California that allow exceptions for emergency situations where there are unforeseen circumstances that necessitate immediate action, the board members are permitted to consent to action by email in accordance with specific requirements that are set forth in the statute.

Non-emergency permissible electronic exchanges between association board members do not involve matters that are required to be addressed in a “meeting” of the association’s board of directors.  Thus, it is acceptable for less than a majority of an association’s directors to communicate electronically with one another on an item of board business so long as the exchanges do not escalate into a series of emails that involve a majority of the association’s directors.  Additionally, a majority of directors can communicate with one another electronically in connection with matters that do involve “board business.”  Permissible matters involving electronic communications between a majority of an association’s directors typically include: (i) requesting the inclusion of items on the agenda for a meeting; (ii) setting the dates and times for meetings; (iii) distributing information in advance of meetings; (iv) transmitting informational emails regarding events; (v) reporting on the status of items; and (vi) distributing general information to directors.

Because the operations of a homeowners association frequently include becoming involved in litigation, it is important to also understand that electronic exchanges between association directors and others, such as members and management personnel, are discoverable in litigation proceedings. As such, unless they are protected against disclosure by legal privileges, the content of such electronic exchanges can become public knowledge and shared in open court.  The types of exchanges that are protected against disclosure in litigation proceedings  are those that further the objectives of the attorney-client relationship such as: (i) communications from association directors or management personnel to association counsel seeking legal advice; (ii) communications of legal advice from the association’s attorney; (iii) communications between directors and/or management personnel concerning legal advice received from counsel for the association.

The provisions contained in state laws and association governing documents concerning board action by electronic transmissions are not all identical. Thus, it is critical for all those involved in common interest communities to know exactly what is contained in their state statutes and their association’s governing documents concerning this topic. Decisions made by an association’s board of directors through electronic transmissions via texting and/or email which violate the applicable laws and/or the association’s governing documents are subject to being declared invalid and set aside pursuant to a challenge.