New Changes to the Civil Code Allows for Member Meetings to be Held Over Zoom, but Only During Limited Circumstances

by Andrew Parslow

As the COVID-19 Pandemic subsides, it is becoming increasingly clear that for better or worse the world will never be the same. One of the many things that changed during this trying time was the manner in which people communicated. Concerns that congregations of people would further spread the virus led to an increase in the use of teleconference services, such as Zoom. During this period, many associations and their members became accustomed to the convenience of holding member meetings via teleconferencing.

On September 23, 2021, these changes in societal preferences were addressed to some extent by Senate Bill 391 being signed into law. This new legislation added Civil Code § 5450, which allows for the holding of a board meeting or meeting of the members entirely through teleconference during a declared state of emergency if a series of conditions are met.

The most notable restriction on Civil Code § 5450 is that it only applies during states of emergencies if gathering in person is “unsafe or impossible.” This means that an association cannot fully integrate teleconferencing as their sole form of member meeting just yet; however, it does set up a framework for teleconferencing during difficult times such as pandemics.

The statute goes on to define three types of emergencies that warrant member meeting solely via teleconferencing: state of disaster or emergencies declared by the federal government; states of emergencies proclaimed by the Governor of California; or local emergencies proclaimed by local officials or governing bodies pursuant to Government Code § 8630.

Civil Code § 5450 does not explain what constitutes a situation where holding an in-person meeting would be “unsafe or impossible.” While California is still in a state of emergency due to the COVID-19 Pandemic, as most localities no longer even have mask mandate at the time this article is being written you cannot currently use it as grounds for a solely virtual member meeting without other factors.

At the current rate things are going, in-person meetings on the state level will likely be safe and possible for the foreseeable future unless a particularly virulent new strain of Covid-19 develops or the burgeoning monkeypox in the United States becomes a second pandemic.

If there is a state of emergency and physical meetings are impossible, the Civil Code still imposes strict notice requirements to ensure that no member of an Association is left out of the meeting if they wish to attend. The notice of the first meeting to be held in response to a particular emergency must be delivered to members by individual delivery, if possible. If the state of the emergency is severe enough so as to make mail delivery or retrieval impossible, this notice can be sent over email to any email address provided to the association in writing pursuant to §§ 4040 or 4041 of the Civil Code.

Both the first notice and all subsequent notices for teleconference meetings must include the following information: clear technical instructions on how to participate in the teleconference; contact information1 for technical assistance both before and during the meeting; and a reminder with instructions on how to request individual delivery of the meeting notices.

There are also a few additional requirements that must be met under Civil Code § 5450. First, every director and member must have the same ability to participate in the teleconference as they would have had the meeting been done in person. Next, if a member is unable to participate via teleconference, they must still be allowed to participate telephonically. Finally, votes of the directors must be conducted via roll call and ballots must be counted over videoconference with a camera placed such that the members can watch the inspector of elections counting and tabulating the votes.

While Civil Code § 5450 allows for member meetings held exclusively over teleconference, it may be advisable to, depending on the emergency, have a physical room available with a Board member present set up for the teleconference for any members of the community who for any reason are unable or unwilling to attend otherwise. While teleconference meetings tend to have a higher turnout this may encourage the attendance of members who prefer appearing in person, therefore making it more likely that an Association will reach a quorum. Additionally, while an ADA complaint alleging age discrimination based on computer access is unlikely, this measure should assuage any such concerns.

Senate Bill 391 is likely not as extensive or permissive as many who have grown used to the convenience of Zoom and similar programs during the Pandemic would like. However, it is still a step in the right direction. It establishes a solid framework for notice and measures to ensure that members of the association are not left out while allowing for an increased use of this convenient service. As time goes on and technology further develops, I expect further legislation in the same vein as Civil Code § 5450 making conferences held over Zoom and other similar services a larger part of the running of an Association.

Our office regularly reviews and prepares appendices to CC&Rs. If you have questions about the new laws and would like to change your governing documents to better address member meetings during a state of emergency or any other concerns, we invite you to contact our office or call to speak with us personally at (949) 729-8002 and our experienced attorneys will be happy to assist you.

1 This must include a telephone number and email address.