Board Member Training Guide

Understanding Executive Sessions

Prepared in accordance with the Davis-Stirling Common Interest Development Act

1. Purpose of Executive Sessions

Executive sessions are private meetings of the board of directors used to discuss confidential or sensitive matters. These meetings are closed to members, except when an owner is directly involved (for example, in a disciplinary hearing or payment plan discussion).

The authority for executive sessions comes from Civil Code §4935, which allows boards to meet privately for specific topics where confidentiality protects the association’s legal, financial, or personnel interests.

Key principle:

“What is discussed in executive session stays in executive session.”

2. Notice and Agenda Requirements

Advance Notice

If the board meets solely in executive session (not attached to an open meeting), notice of the time and place must be provided to the membership at least two days in advance.
(Civil Code §4920(b)(2))

Agenda Content

Every executive session notice must include an agenda. Agenda items must be brief and general to protect confidentiality.
(Civil Code §4920(d))

Example of acceptable agenda entries:

• “Member disciplinary hearing – Unit 3B”
• “Delinquency payment plan request”
• “Discussion with legal counsel regarding pending litigation”

Emergency Items

If an issue arises after the agenda is posted, the board may add it only if a majority of directors present determine that an emergency exists   — meaning circumstances that could not reasonably have been foreseen and require immediate attention.
(Civil Code §4930(d)(1))

3. Authorized Executive Session Topics

Under Civil Code §4935, boards may meet in executive session for the following:

1. Litigation – Pending or threatened legal actions, attorney consultations, and settlement strategy.

2. Contracts – Formation or negotiation of contracts with third parties.

3. Disciplinary Hearings – Matters involving alleged rule violations; the accused member may attend that portion.

4. Personnel Matters – Employment, performance, compensation, or discipline of employees.

5. Payment Plans – Requests by members for payment arrangements on delinquent assessments.

Additional Confidential Matters

While not listed directly in §4935, the following should also be handled privately:

• Foreclosure decisions (Civil Code §5705(c))
• Disability accommodation requests (CCR §12176(b)(1))
• Mental health-related issues (e.g., hoarding)
• Director censure or conduct review
• Contract termination discussions
• Legal risk assessments and attorney advice

4. Confidentiality Duties

Directors have a fiduciary duty to maintain confidentiality of executive session discussions.
Only the board as a whole can authorize disclosure of executive session information.

Violations may result in:

• Censure or removal from committees
• Loss of Business Judgment Rule protection (potential personal liability)
• Exclusion from future executive sessions

Rule of thumb:

“Never share executive session information with anyone who wasn’t invited to the meeting.”

5. Attendance Rules

The following may attend, depending on the topic:

• Board members
• Manager or managing agent
• Association’s legal counsel
• Recording secretary (if designated)
• The subject member (during their own hearing or payment discussion)
• Witnesses or consultants invited for a specific portion (e.g., HR or contractor input)

Members at large may not attend unless specifically invited.

6. Conducting the Meeting

Executive sessions may be held:

• In person
• By telephone or video conference
• As an emergency meeting via email (for urgent matters only)
• Through unanimous written consent in emergencies

Meetings must be called by the president, secretary, or any two directors.
(Corporations Code §7211(a)(1); Civil Code §4923)

7. Voting in Executive Session

Boards may vote and take action in executive session.
For example, decisions about settlements, disciplinary actions, or employment matters are properly made and recorded in a closed meeting.

It is not necessary to reconvene into an open session to vote on these matters.

8. Executive Session Minutes

Content

Minutes must record actions and reasoning but should avoid unnecessary detail.
They should include:

• Date, time, and place of meeting
• Directors present
• Agenda topics
• Decisions made or actions taken

Example:

“The board met with legal counsel to discuss pending litigation and approved settlement terms.”
“The board reviewed disciplinary matters concerning Unit 3B and imposed a $100 fine.”

Storage and Confidentiality

• Executive session minutes are confidential and not available for member inspection.
• They must be kept separate from open meeting minutes.
• Boards should avoid audio or video recordings once written minutes are finalized.

Approval

Minutes should be approved at the next executive session. Approving them in open session risks breaching confidentiality.

9. Reporting to Members

Although executive sessions are private, boards must generally note in the next open meeting minutes what business was conducted.
(Civil Code §4935(e))

Example reporting language:

“The board met in executive session on March 12, 2025, to discuss member discipline, personnel matters, and legal counsel updates.”

No names or confidential details should be disclosed.

10. Practical Tips for Directors

Keep all executive session materials (agendas, minutes, correspondence) secure.
Avoid discussing executive session topics via email or outside the meeting.
When unsure whether a topic qualifies, consult association counsel.
Review Civil Code §§4920–4935 and §5705 regularly.
Use professional judgment and discretion — confidentiality protects everyone.

Overview of Civil Code § 5205 – Inspection of Records

Purpose:
To ensure HOA members have transparent access to association records, while giving the association limited authority to control logistics, costs, and redactions.

Key Provisions and Practical Notes

(a)–(b) Right of Access and Representation

• Any member (or their authorized representative, with written consent) can inspect or request copies of association records.
• The HOA cannot restrict this right, provided the request meets procedural requirements (see § 5210 for      timeframes).

(c)–(e) Location and Delivery of Records

• Records must be available at the association’s business office located within the development.
• If there’s no business office onsite, the HOA and the member must agree on a place to review or      receive copies.
• If they cannot agree, or the member requests copies in writing, the HOA may mail or individually deliver the requested documents (per Civil Code § 4040).

(f) Cost of Copies and Mailing

• The HOA may bill for actual copying and mailing costs.
• The HOA must inform the member of the costs upfront, and the member must agree to pay before the HOA produces the records.

(g) Cost for Redacting “Enhanced Records”

• If records contain personal or sensitive data that requires redaction (e.g., names, addresses, account details), the HOA may charge:
  • Up to $10/hour, not to exceed $200 per request.
• The HOA must notify the member of estimated redaction costs and obtain a written agreement before processing.
• Anyone submitting a reimbursement request is responsible for removing personal info before submission.

(h) Electronic Transmission Option

• Members may opt to receive records electronically (e.g., PDF, USB, email), provided the HOA      can transmit them in a secure, unalterable format.
• The cost is limited to the direct cost of producing the electronic copy.

Implementation Tips for HOAs

1. Create a written records-request policy citing § 5205 and § 5210, outlining timeframes and fees.
2. Designate a records custodian or management office contact for all requests.
3. Use redaction protocols to protect confidential data (e.g., redact bank account numbers, personal addresses).
4. Maintain a fee schedule (copying rate per page, hourly redaction rate, maximum caps).
5. Offer electronic delivery whenever practical to reduce costs and improve efficiency.
6. Document all communications about cost estimates, member consent, and delivery dates for compliance verification.

Board Authority & Duties

Governed by Boards of Directors

Associations are governed by elected boards of directors who have general duties and authority.
(Civ. Code § 4080)

Corporations are required to have a board of directors:

“Each corporation shall have a board of directors. . . . the activities and affairs of a corporation shall be conducted, and all corporate powers shall be exercised by or under the direction of the board. . . . the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.”
(Corp. Code § 7210)

Boards must manage the association's affairs in a manner consistent with the CC&Rs.
(Pinnacle Museum Tower Ass’n v. Pinnacle Market Dev’l (2012) 55 Cal.4th 223, 239)

Board of Directors Defined

A Board of Directors is the elected body that governs a common interest development.

The Corporations Code defines “directors” as:

“Natural persons designated...elected or appointed...to act as members of the corporation’s governing body. A person who does not have authority to act as a member of the corporation’s governing body, including through voting rights as a member of the governing body, is not a director...”
(Corp. Code § 5047)

The term “Board of Governors” is an older phrase rarely used today. It appeared in early common interest developments when they were unincorporated associations. As the industry evolved, the Department of Real Estate required developers to incorporate all new associations and adopt bylaws within their CC&Rs—formally designating them as boards of directors.

Number of Directors

The number of directors is established in the association’s articles of incorporation and repeated in the bylaws.

• The number is almost always odd to avoid deadlocks (usually five).
• Very small associations sometimes have three directors.
• Very large associations may have seven or more.

Board Authority

“Unless the governing documents provide otherwise, and regardless of whether the association is incorporated or unincorporated, the association may exercise the powers granted to a nonprofit mutual benefit corporation, as enumerated in Section 7140 of the Corporations Code.”
(Civ. Code § 4805(a))

Corporations must have a board of directors that conducts the corporation’s affairs. (Corp. Code § 7210.)
Because of their position of authority, boards (and individual directors) are held to a higher standard as fiduciaries.

Unless the governing documents provide otherwise, boards can:

• Adopt and  enforce rules and regulations
• Appoint committees and fill vacancies
• Approve exceptions to exclusive use easements
• Borrow money and call membership meetings
• Appoint inspectors of election
• Communicate with the association’s attorney
• Delegate management authority
• Disburse reserve monies
• Elect and remove officers
• Enforce the governing documents
• Enter into contracts
• Establish architectural standards
• Exercise the powers of a corporation (Civ. Code § 4805; Corp. Code § 7140)
• Hire and fire employees and vendors
• Initiate and defend lawsuits
• Insure the association and its directors
• Invest funds prudently
• Levy and collect assessments
• Make limited capital improvements
• Manage the association and pay its expenses
• Prepare and adopt budgets
• Repair and maintain the common areas

Board Limitations

Boards oversee operations and set policy—but both boards and individual directors have limits on their authority.

1. Vendors

Individual directors cannot independently contact or instruct vendors or sign contracts without board authorization.
Allowing multiple directors to do so causes confusion, inconsistent direction, and may lead to ultra vires acts.

Proper procedure:
All vendor communication should flow through the president or managing agent.
Boards may censure directors who violate these procedures and may hold them personally liable.

2. Personnel

Directors cannot individually direct or discipline employees.
That authority belongs to the board as a body or its properly delegated officers/managers.
Improper interference may expose the association to Labor Code violations, harassment claims, or constructive termination actions.

3. Records

Directors have a right to inspect association records, but privacy laws and other factors may limit that right.

4. Volunteer Limitations

Directors are volunteers and may not receive pay for board service.
They must act cautiously to maintain legal protection and avoid personal liability.

Duties of Board Members

When elected, directors assume obligations to act in the best interests of the association.

Fiduciary Duties

Boards must uphold duties of loyalty, due diligence, and confidentiality.

Assessment Responsibilities

Boards must impose regular and special assessments sufficient to carry out their duties.
(Civ. Code § 5600(a))

Attendance and Participation

Directors are expected to attend and participate in meetings to remain informed.

Maintenance of Common Areas

Boards must maintain common areas on behalf of the membership.
(Civ. Code § 4775)

Financial Oversight

Directors must exercise reasonable care in managing the association’s finances and enforcing collection policies.

Enforcement of Governing Documents

Boards must uniformly enforce the CC&Rs, bylaws, and rules.

Operational Oversight

Boards oversee the association’s day-to-day operations, including:

• Management and legal services
• Landscape and maintenance vendors
• Amenity operations (pools, clubhouses, golf courses, etc.)
• Insurance procurement

Limited Transparency

Certain matters must remain confidential to protect the association’s interests.
Executive session meetings allow boards to discuss sensitive issues privately, and their minutes are not open to member review.
(Civ. Code § 4935)

Financial Duties of Directors

Boards must exercise reasonable care in overseeing association funds. Obligations include:

• Bank Accounts: Maintain operating and reserve accounts.
• Reserves: Fund reserves for major repairs and replacements.
• Fund Transfers: Approve all transfers between accounts.
• Prudent Investments: Ensure returns without risking capital.
• Internal Controls: Prevent embezzlement through checks and balances.
• Insurance: Maintain adequate coverage as required by statute and CC&Rs.
• Budget & Assessments: Adopt budgets and levy assessments to meet obligations.
• Collection Policies: Enforce consistent collection procedures.
• Taxes: File annual tax returns.

Monthly Financial Review

Beginning January 1, 2019, boards must review their association’s financial records monthly.
(Civ. Code § 5500)

The review may be conducted by:

1. All board members individually, then ratified at a subsequent meeting; or

2. A subcommittee (treasurer + one other director), with ratification recorded in the minutes. (Civ. Code § 5501)

Required Review Includes:

• Current reconciliation of operating and reserve accounts
• Comparison of actual revenues and expenses vs. budget
• Bank statements for all accounts
• Income and expense statements
• Check register, general ledger, and delinquency reports

Directors must review these items critically and question any irregularities—such as unauthorized payments or unexplained vendor charges.

Delegating Authority

Boards may delegate duties to managers, committees, or agents—but remain ultimately responsible for all actions taken.

“The board may delegate the management of the activities of the corporation to any person, management company, or committee, provided that the activities and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the board.”
(Corp. Code § 7210)

Committees may be advisory or authorized to act. Any delegation should be recorded in the board minutes.
(Corp. Code §§ 300(a), 311, 7210, 7212(a); Finley v. Superior Court (2000) 80 Cal.App.4th 1152, 1161)

Nondelegable Duties

Certain board powers cannot be delegated:

• Appointing executive committees or their members (Corp. Code § 7212(a)(6))
• Approving large fund transfers
• Approving settlement agreements (Elnekave v. Via Dolce)
• Attending and voting at board meetings
• Electing officers (Corp. Code § 7213(b))
• Filling board vacancies (Corp. Code § 7212(a)(2))
• Reviewing finances (Civ. Code § 5500)
• Recording liens (Civ. Code § 5673)
• Approving foreclosures (Civ. Code § 5705(c))
• Authorizing lawsuits (Finley v. Superior Court)

Judicial Deference

Courts defer to boards’ decisions, even if imperfect, so long as the board acted:

• In good faith,
• After reasonable investigation, and
• In the best interests of the association.

This is known as the Business Judgment Rule.
Members dissatisfied with board decisions have recourse through lawful channels such as elections or recall processes.

Elevated Element Inspections Required (SB 326)

Overview

Beginning January 1, 2020, California Senate Bill 326 (SB 326)requires condominium associations with three or more units per building to have their elevated load-bearing structures—such as balconies, decks, stairs, and walkways supported by wood—inspected by a qualified professional.
(Civil Code § 5551(l))

The law ensures structural safety and long-term maintenance of wood-supported elevated elements in multi-family communities.

Purpose of the Law

SB 326 was enacted after several tragic balcony collapses in California. Its goal is to:

• Detect wood deterioration, dry rot, and termite damage before      failure occurs.
• Ensure the safety of residents and visitors.
• Require routine professional inspections and timely repairs.

The statute does not change existing maintenance responsibilities under the CC&Rs—it simply adds an inspection and reporting requirement for associations.

What Must Be Inspected

Exterior Elevated Elements (EEE) Defined

Under Civil Code § 5551(a)(3), required inspections apply to load-bearing components and associated waterproofing systems that:

1. Extend beyond exterior walls to deliver structural loads from decks, balconies, stairs, or walkways.

2. Have a walking surface more than six (6) feet above ground level.

3. Are designed for human occupancy or use.

4. Are supported substantially by wood or wood-based products.

Structures That Require Inspection

Inspectors will examine these common configurations:

1. Cantilevered wood balconies – inspection required.

2. Balconies supported by wood posts – inspection required.

3. Partially cantilevered balconies – inspection required.

4. Exterior wood stairs and landings – inspection required.

5. Elevated walkways on wood framing – inspection required.

6. Flush balconies with wood-attached railings – inspection recommended.

7. Concrete or steel balconies – not required but should be visually checked for reserve studies.

Inspection Frequency & Standards

• Frequency: Every nine (9) years minimum.
• Inspector Qualifications: Must be a licensed structural engineer, civil engineer,      or architect.
• Sampling Requirement: The inspector must inspect enough components to achieve 95%      confidence with a ±5% margin of error for the entire development.
• Inspection Methods: May include visual observation, moisture meters, infrared      imaging, and borescopes to limit invasiveness.
• Documentation: The report must identify:
  • Physical condition and remaining useful life.
  • Waterproofing system integrity.
  • Any immediate threats to health or safety.

    

Immediate Threats to Safety

If an inspector determines that an elevated element poses an immediate danger, the following steps must be taken:

1. The report is provided to the Board immediately and to the local code enforcement agency within 15 days.

2. The association must take preventive action immediately, including restricting access to unsafe areas.

3. Repairs must be completed and approved by the local agency before reopening access.
(Civil Code § 5551(g))

Who Is Responsible

Condominiums

The inspection requirement applies only to condominium associations, not to planned developments.
For townhouses, responsibility depends on how the unit boundaries are defined in the CC&Rs:

• If the structure is owned in common, the association is responsible.
• If the unit extends to the exterior surfaces, the homeowner is responsible.

Boards should review their governing documents with legal counsel to clarify ownership and maintenance duties.

Stock Cooperatives & Community Apartments

Although these forms of ownership are governed by the Davis-Stirling Act, the statute is ambiguous. Associations with multi-unit wood structures should consult counsel—voluntary inspections are the safer course to prevent liability.

Balcony Railings

Even if balconies are not subject to SB 326, railings attached to wood or wood-based framing must be checked.
If railings no longer meet building code standards (e.g., spacing wider than 4 inches or height below 42 inches), they must be upgraded whenever replaced or repaired.

Insurance carriers often require railing upgrades for safety compliance on:

• Balconies
• Walkways
• Pool enclosures

Waterproofing Systems

Waterproofing integrity is critical to structural longevity.
Inspectors must examine flashings, membranes, coatings, and sealants for deterioration.
Water intrusion can lead to fungal growth, dry rot, and eventual structural failure.
Routine maintenance and sealing prevent costly repairs and extend balcony life.

Inspection Reports & Recordkeeping

• Report      Delivery: Submitted directly to the Board of Directors.
• Retention: The report must be kept for at least 18 years (two inspection cycles).
• Coordination: Notify the reserve study preparer so cost adjustments can be made for repairs or replacements.
• Cost Impact: Achieving the 95% confidence level may increase inspection costs, depending on building size and complexity.

Concrete Balconies

Concrete and steel balconies are exempt from SB 326, but they must still be reviewed during reserve study inspections.
Because concrete is porous, trapped moisture can cause rebar corrosion, cracking, and spalling.
Regular waterproofing maintenance prevents expensive structural damage.

Summary for Boards

Requirement                          Details

Applies To               Condominium   buildings with 3+ units per structure

Frequency               Every 9 years

Inspector                 Licensed engineer or architect 

Scope                       Wood-supported balconies, decks, stairs, walkways

Report Filing          To HOA Board; the local agency if unsafe

Retention                18 years

Action if Unsafe    Immediate closure, repair, and reinspection

Best Practices

• Schedule      inspections proactively—don’t wait for visible damage.
• Engage      engineers familiar with SB 326.
• Maintain      waterproofing regularly.
• Coordinate      inspection results with your reserve study.
• Consult HOA      legal counsel to confirm maintenance responsibility.

Protecting Residents & Property

Following SB 326 inspection requirements is not just a matter of compliance—it’s about preventing tragedy and protecting property values. Proactive inspections preserve building integrity, safeguard lives, and reduce long-term repair costs.

California Corporations Code §7224 – Vacancies, Selection, and Resignation

(a) Filling Vacancies by the Board

• General rule: If the corporation’s articles or bylaws do not say otherwise, and the vacancy was not caused by removal, the board of directors may fill the vacancy.
• If fewer than a quorum remain: The remaining directors can still fill the vacancy if:
  1. All remaining directors give unanimous written consent, or
  2. A majority of the remaining directors vote in favor at a properly noticed meeting, or
  3. There is only one remaining director who may appoint a replacement.

Special rule for vacancies caused by removal

• If the members removed a director, that vacancy can only be filled by the members, unless:
  • The articles or a member-approved bylaw explicitly authorizes the board to fill removal vacancies, or
  • The corporation has no members (per §7310), in which case the board may fill it.

    

(b) Members’ Right to Fill Vacancies

• Members retain the right to elect a director at any time to fill any vacancy not already filled      by the board.

(c) Resignation of Directors

• A director may resign at any time by providing written notice to:
  • The chairperson of the board,
  • The president,
  • The secretary, or
  • The board of directors directly.
• The resignation is effective upon delivery, unless the notice specifies a later date.
• If a future effective date is specified, the board may elect a successor in advance, effective      when the resignation takes effect.

Hierarchy of Governing Documents (Civ. Code § 4205)

Homeowners’ Associations (HOAs) operate under multiple governing documents, but when conflicts arise between them, California law establishes a clear order of authority. Understanding this hierarchy helps ensure the Board acts lawfully and consistently.

1. The Law Prevails

If any governing document conflicts with state or federal law, the law always prevails.

Example: If the CC&Rs allow something that state law prohibits (e.g., restrictions that violate fair housing laws), the statute controls.

2. Declaration (CC&Rs) Prevails Over Articles

If there is a conflict between the Articles of Incorporation and the Declaration (CC&Rs), the Declaration takes priority.

The Declaration governs the property rights and obligations of members and is recorded against the land.

3. Articles and Declaration Prevail Over Bylaws

When Bylaws conflict with either the Articles or Declaration, the latter controls.

The Articles establish the corporation; the Declaration sets out covenants and property obligations. Both override procedural and administrative provisions in the Bylaws.

4. Higher Documents Prevail Over Operating Rules

If Operating Rules conflict with any higher-level documents (Bylaws, Articles, or Declaration), those higher documents prevail.

Rules regulate day-to-day living (e.g., pool hours, parking limits) but cannot contradict governing documents or laws.

Summary Hierarchy (Highest to Lowest Authority):

1. Federal & State Law
2. Declaration (CC&Rs)
3. Articles of Incorporation
4. Bylaws
5. Operating Rules & Policies

Civil Code § 4210 – Record Notice of Relevant Information About the Association

This section gives the board of directors’ authority to record a public notice—called a “statement of relevant information”—with the county recorder’s office.
The purpose of this filing is to make it easier for title companies, buyers, and escrow agents to locate the correct information when collecting or verifying HOA assessments and fees.

Key Points:

1. Purpose:
       The recorded statement helps facilitate the collection of regular and special assessments, transfer fees, and any other authorized charges under Civil Code §§ 4530, 4575, and 4580.
2. Authority:
       The board may record this statement at its discretion and may later record an amended statement to update any information.
3. Contents of the Statement:
       The filing may include:
   • (a) The official name of the association.
   • (b) The name and address of the person or entity authorized to receive payments (for example, the managing agent or treasurer).
   • (c) A daytime phone number for that contact person, if available.
   • (d) A list of all separate interests (units or lots) subject to assessment, including the Assessor’s Parcel Numbers (APNs) or legal descriptions.
   • (e) The recording reference for the association’s Declaration of CC&Rs.
   • (f) If an amendment is recorded, the recording references the prior statement(s) being replaced.

1. Practical Effect:
       Recording this information ensures that escrow companies, lenders, and buyers can easily identify:
   • Who to contact for assessment payoff demands,
   • Which properties are subject to HOA assessments, and
   • Which governing documents apply.

1. Best Practice:
       Associations should keep this statement current. When management changes or the association’s name or address changes, the board should promptly record an amended statement to prevent delays in escrow payments and assessment collections.

Civil Code § 4220 — Boundaries of Units (Summary)

This section governs how unit boundaries in a condominium project are interpreted when there’s a discrepancy between what’s shown on paper (in a deed or condominium plan) and what exists physically.

Key Points:

• Physical boundaries control:
      If a condominium unit’s boundaries are within a building, the actual, existing physical boundaries of the unit are conclusively presumed to be its legal boundaries.
• Applies even with discrepancies:
      This presumption applies even if there’s a minor variance between:
  • The physical boundaries and
  • The boundaries described in the  deed or condominium plan.
• Applies to rebuilt units:
      The rule also applies if the unit has been reconstructed  substantially according to the original plans.
• Settling or movement irrelevant:
      The presumption holds true regardless of settling or lateral movement of the building, meaning even if the structure has shifted slightly over time.

Purpose:

This provision is designed to avoid disputes over minor discrepancies between recorded documents and the physical layout of condominium units. It ensures that what exists on the ground governs, rather than minor technical differences in measurements or drawings.

Example: Physical Boundaries Control (Civil Code § 4220)

Scenario:
A condominium unit owner in the Sunset Villas development discovers that the interior walls of their unit extend about three inches beyond what the condominium plan and deed describe. The difference occurred because the building settled slightly after construction, causing small shifts in the structure’s alignment.

Another owner reviews the condominium map and claims that this discrepancy means part of the wall belongs to the adjoining unit, arguing that the deed’s metes-and-bounds description should control.

Legal Interpretation under Civil Code § 4220:
Under § 4220, the existing physical boundaries of the unit — the actual walls, floors, and ceilings as they currently stand — are conclusively presumed to be the legal boundaries of the unit.

• This applies even though the recorded deed or condominium plan shows slightly different measurements.
• It also applies even if the building has settled or shifted over time.
• The same rule would apply if the unit were reconstructed in substantial accordance with the original plans after damage or remodeling.

Outcome:
The physical walls as they exist define the legal boundary of the unit. The small variance between the recorded plan and the actual construction is legally irrelevant.

Training Takeaway for HOA Boards

• When disputes arise over unit dimensions or shared walls, the physical reality of the structure      governs.
• Boards should not attempt to “re-survey” or reinterpret unit boundaries based solely on plan drawings.
• Any disputes about boundaries should be referred to legal counsel, but boards can rely on § 4220 to affirm that existing physical conditions control minor differences between deeds and structures.

Purpose:
Civil Code § 4035 establishes the proper delivery requirements for documents to a homeowners’ association (HOA).

(a) Designated Recipient

• The association’s annual policy statement (per Civil Code § 5310) must identify a person      authorized to receive documents on behalf of the HOA (such as the managing agent, board president, or secretary).
• If no person is designated, documents must be delivered to either the president or the secretary     of the association.

(b) Acceptable Delivery Methods

A document may be delivered to the association by any of the following:

1. Electronic delivery – by email, fax, or another electronic method if the association has consented to receive documents that way.
2. Personal delivery – if the association agrees to accept hand delivery. In this case, the association must issue a written receipt confirming delivery.
3. Mail or courier – by:
   • First-class mail (postage prepaid)
   • Registered or certified mail
   • Express mail
   • Overnight delivery service

     

Practical Implications

• Associations must clearly identify who receives legal notices and correspondence in their annual      policy statement.
• Homeowners, vendors, or others sending notices should verify that they are using an approved method of delivery to ensure the document is legally effective.
• The written receipt requirement for personal delivery ensures a paper trail confirming      timely delivery.

Civil Code § 4040 — Providing Notice or Delivery to Individuals

Purpose

This section defines how a homeowners’ association (HOA) must provide individual notice or individual delivery to its members when required by the Davis-Stirling Act.

(a) Required Delivery Method

1. Member’s Preferred Delivery Method (per §4041):
   • The HOA must use the delivery method that each member has specified in writing (for example, email, postal mail, etc.).
   • This preference is established when the member provides their annual contact information under Civil Code §4041.

1. Default Delivery Method (if there is no preference on file):
   • If the member has not provided a valid method under §4041, the HOA must send the document by one of the  following:
     • First-class mail
     • Registered or certified mail
     • Express mail
     • Overnight delivery by an express carrier
   • It must be addressed to the last address shown in the association’s records.

     

(b) Secondary Address Option

• If a member requests that the HOA also send notices to a secondary address (under §5260), the      association must send an additional copy of:
  1. Annual financial and policy disclosures (Article 7, beginning with §5300).
  2. Collection-related notices (Article 2, beginning with §5650, and §5710).

    

(c) Governing Document Clauses

• An unrecorded clause in the association’s governing documents that specifies a particular method of delivery (for example, “email is the standard method”) does not count as member consent to that method.
  • Each member must expressly agree to their delivery method individually.

    

Key Takeaway

Civil Code §4040 ensures members control how they receive individual notices, and HOAs must comply with each member’s chosen or default delivery method. It also protects members by requiring duplicate delivery to a secondary address upon request, especially for financial and collection matters.