Q: The last in-person meeting [our HOA] held was in August 2022 and it was the annual meeting. Since then the monthly meetings have been only virtual. Is our HOA violating the Open Meeting Act? — S.I., San Diego.

Q: Our HOA is a large complex. I know our board is in violation and has been for some time because it still holds only virtual meetings. I have brought this up to them before and the answer I get is there are concerns of COVID among its members.  Another fact is that when conducting virtual meetings the majority of the board members are “hiding” behind their chosen photo. Would you be so kind and tell me the code violation this board pretends to be oblivious about?  Also, any comments about their not showing their faces during virtual meetings? — G.L., Pacific Beach.

A.: Yes, your HOAs are violating Civil Code 4090 and the Open Meeting Act. In 2020, many counties for a time prohibited gatherings of more than five unrelated people in the same indoor space. That presented HOAs with a tough choice – should they violate the county orders or the Davis-Stirling Act?

Most HOAs chose to obey the Health Department orders and for a time conducted purely virtual meetings. Although in most if not all counties the meeting bans ended before the end of 2020, many HOAs continue to violate the Civil Code 4090(b) requirement that a physical location be announced where someone could personally attend.

The problem was exacerbated by 2021’s emergency legislation adding a new Civil Code Section 5450, allowing HOAs to meet purely virtually during declared emergencies making it unsafe or impossible to meet in person. This statute was added to the Davis-Stirling Act in September 2021, almost a year after the last known county ban on indoor meetings expired.

However, many HOAs continued to meet purely virtually without establishing the physical location required by Civil Code 4090(b), with the excuse that the State still had a declared health emergency regarding Covid-19. However, even that excuse ended on February 28, 2023, when the Governor officially ended the Covid-19 State of Emergency.

The bottom line is that HOAs can conduct their meetings telephonically or using a virtual platform, so long as they have a physical location announced where someone can attend and observe the meeting.

This appears to change next year, due to Assembly Bill 648, which if passed will add a new Civil Code Section 4926 to the Open Meeting Act, allowing board or membership meetings to be held purely virtually. The bill appears to be non-controversial, has passed the Assembly on a 72-0 vote, and is in the final stages of Senate consideration with no votes in opposition. So, at this point it seems safe to assume that California HOAs will be able to conduct board or membership meetings virtually starting in 2024.

However, until the new law is enacted, California HOAs may conduct live meetings or “hybrid” virtual meetings with a physical location designated for those unable or unwilling to observe and participate virtually. Purely virtual meetings continue, at least for now, to be prohibited.

It’s time for HOAs to develop rules regarding the virtual component of their meetings.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to [email protected].

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