Connecting the Dots: Expert Insights into Homeowner Communications

By Karyn A. Larko, Esq.

The Davis-Stirling Common Interest Development Act (California Civil Code (“CC”) §§4000-6150) mandates that certain association communications be provided to members by individual delivery and permits other communications to be provided by general delivery. This article explores the distinctions.

Individual Delivery

In accordance with Civil Code §4040 and §4041, individual delivery is the delivery of a communication in keeping with the preferred delivery method(s) specified by the member in response to the association’s annual request for member contact information.

As of January 1, 2023, §4041 requires associations to solicit from each member that member’s contact information and preferred method(s) for receiving association communications via individual delivery (“4041 Solicitation”). Each member is entitled to request that communications be sent to the member at one or two specified mailing addresses, one or two specified email addresses, or at a specified mailing address and a specified email address.

If a member has not responded to the association’s most recent 4041 Solicitation, individual delivery is achieved by sending the communication to the last address shown on the association’s records for the member by first-class mail, registered or certified mail, express mail, or overnight delivery.

If a member has never responded to a 4041 Solicitation or submitted their contact information to the association, individual delivery is achieved by sending the communication to the member’s on-site property address.

Communications that must be provided by individual delivery include, but are not limited to:

• The annual budget report and policy statement.

• Notice of an assessment increase or special assessment.

• Notice of a lapse, cancelation, nonrenewal, or significant change in the association’s insurance.

• Notice of a newly adopted fine unless the new fine was included in the most recent policy statement.

• Certain notices are required during the board election process if the board wants the option of electing directors by acclamation.

• Hearing and post-hearing notices (although these notices may also be delivered personally).

It is important to know that the Civil Code imposes additional delivery requirements for some communications. For example, a member can request that the annual budget report and policy statement and certain communications pertaining to delinquent assessments be sent to as many as four different mail or email addresses or a combination of the two. Additionally, it mandates that certain delinquency communications be sent via certified mail.

General Delivery

In accordance with §4045, general delivery is achieved by:

• Individual delivery.

• Inclusion of the communication in a billing statement, newsletter, or other document provided by general delivery.

• Posting the communication in prominent common area location(s) accessible to all members, provided the prior fiscal year’s annual policy statement identified the location(s) where communications would be posted.

• Posting the communication in a prominent location on the association’s website accessible to all members, provided the prior fiscal year’s annual policy statement identified this location for the posting of communications.

• Broadcasting the information on the association’s television station (if applicable).

Communications that may be provided by general delivery include notices of proposed and adopted rule changes (except changes in fines), notices of board meetings, notices of nominating procedures provided election by acclamation is not contemplated, notices of upcoming board elections and candidates, and notices of the outcome of member votes.

It is important to know, however, that §5260 and §4045 grant members the right to request, in writing, individual delivery of communications otherwise subject to general delivery. Associations are required to comply with these requests.

Member Contact Information

As mentioned above, §4041 requires associations to solicit member contact information from all members annually at least 30 days before the budget report and annual policy statement are sent. Further, §4041 mandates that associations update their records with the responses received.

If a manager fails to promptly update an association’s records, it can lead not only to violations of the Civil Code for failing to update member contact information and failing to effectively provide required communications but also liability for the association. This failure can also create other problems, such as issues with imposing and collecting assessment increases and special assessments and the ability to impose fines, to name a few.

Maintenance of member contact information should be kept in a program that can be easily downloaded to a spreadsheet and provided to third parties as necessary or required by law.

Management Transitions

A professional manager is just that – a professional. When transferring an association’s records to a new manager or management company, provide the association’s complete records in the same manner you would want to receive them. This includes providing the current membership list and the current member contact information in both hard copy and electronic format and providing organized files containing correspondence sent to the entire membership, as well as correspondence between the association and individual property owners. Providing these records is as critical to a smooth management transition as providing complete and accurate financial records.

Practice Tips

• If an association’s governing documents impose different delivery requirements for communications than the Civil Code, consult with the association’s legal counsel on which controls.

• Members must consent to receive association communications via email. The inclusion of a member’s email address in a member’s response to an association’s 4041 Solicitation achieves this consent.

• Individual delivery via email is not achieved if you receive notice that the message failed to reach the recipient. Consult with the association’s legal counsel on how to effectuate individual delivery should this occur.

• While the Civil Code permits general delivery of notices of proposed and adopted rule changes, consider sending these notices via individual delivery to facilitate member knowledge of and compliance with these changes.

• Before sending communications pertaining to delinquent assessments, confirm with the association’s legal counsel all delivery requirements.

Karyn A. Larko, Esq., is a Community Association Counsel with Epsten, APC, out of San Diego. She has 15 years of experience advising boards of common interest developments on general legal matters.