The Art of Deliver
y: Mail, Posting, or Personal Delivery?
Document and Notice Delivery to Members
By Jeffrey A. Beaumont, Esq.
A number of provisions of the Davis-Stirling Common Interest Development Act, governing the operation and management of homeowners associations in California, require the distribution of various documents and notices to the membership. The precise manner in which those documents are distributed is of utmost importance.
Failure to comply with the manner of distribution of a given document has wide-ranging effects, from the invalidation of the document to monetary sanctions against the association. The following is a checklist of the legal requirements for the distribution of key documents to the membership.
Alternative Dispute Resolution – Civil Code Section 1369.530 requires that the association and members submit certain disputes to alternative dispute resolution, notice of which shall be served via personal delivery,
first class mail,
express mail, facsimile transmission, or other means that will provide actual notice.
Amendment to the Governing Documents – Civil Code Section 1355 requires that they be distributed by first class mail postage prepaid or by personal delivery.
Association Records and Books – Civil Code Section 1365.2 requires that association records and financial statements be distributed to mem
bers, upon their request, via first class mail, only if the member requests delivery of the documents.
Ballots and Other Voting Materials – Civil Code Section 1363.03 requires ballots and other voting materials to be distributed to members via first class mail or personal delivery.
Board Meeting Notices and Agendas – Civil Code Section 1363.05 requires that notice and the agenda of Board meetings be posted in a prominent place in the common area of the association and sent by mail only to those members who have requested notification of Board meetings by mail.
The association may also distribute such notice and agenda of Board meetings by personal delivery and/or inclusion in the association newsletter.
Disciplinary Action – Civil Code Section 1363(h) requires that notice of a Board meeting at which the Board will decide whether to impose disciplinary action must be distributed to the member to be disciplined by first class mail or personal delivery. The same method of delivery applies to notice of the Board’s decision to impose disciplinary action.
Fine Policy – Civil Code Section 1363 requires that fine policies be distributed by first class mail or by personal delivery.
Liens – Civil Code Section 1367.1 requires that a pre-lien letter be sent to a delinquent member via certified mail. Further, a copy of a notice of assessment lien recorded against a member’s residence must be sent via certified mail to every person whose name appears as an owner of record.
Membership Meetings – Corporations Code Section 7511 requires notice of membership meetings to be distributed via personal delivery, electronic transmission (only if the member has previously agreed to such manner of transmission), or by mail to the last address appearing on the association’s books for that member.
Operating Rules – Civil Code Section 1357.130 requires that written notice of the rules, including the text, be distribute by at least one of the following methods: personal delivery, first class mail postage prepaid, electronic distribution (if the member has previously agreed to such manner of delivery), publication in a document that is circulated primarily to the association’s members (e.g. the association newsletter), television programming to the members, or with a billing statement.
Pro Forma Operating Budget – Civil Code Section 1365(d) requires that the pro forma operating budget be distributed to members, who request same, via first class mail.
Temporary Relocation of Owners – Civil Code Section 1364 requires associations to maintain common area, which occasionally requires the temporary vacation of owners from their separate interests. Notice must be given to an owner that he/she must temporarily vacate his/her residence via (1) personal delivery to the occupants and first class mail to the owner of the residence or (2) first class mail to both the occupants and the owner of the residence, if different than the occupant.
Termination or Suspension of Memberships – Corporations Code Section 7341 requires notice to be given to a member regarding his/her membership termination or suspension via first class mail or registered mail.
In other words:
|
Document/Notice |
Manner 1 |
|
Manner 2 |
Legal Authority |
|
Alternative Dispute Resolution |
Personal delivery OR First class mail OR Express mail OR Facsimile transmission |
Civil Code Section 1369.520 |
||
|
Governing Document Amendment |
First class mail postage prepaid |
OR |
Personal delivery |
Civil Code Section 1355 |
|
Records and Books |
First class mail only |
Civil Code Section 1365.2 |
||
|
Ballots and Voting Materials |
First class mail |
OR |
Personal delivery |
Civil Code Section 1363.03 |
|
Board Meetings and Agenda |
Posting in Common Area |
AND |
First class mail to owners who have requested receipt by mail |
Civil Code Section 1363.05 |
|
Disciplinary Action |
First class mail |
OR |
Personal delivery |
Civil Code Section 1363(h) |
|
Fine Policy |
First class mail |
OR |
Personal delivery |
Civil Code Section 1363 |
|
Liens and Pre-Lien Letters |
Certified mail |
Civil Code Section 1367.1 |
||
|
Membership Meetings |
Personal delivery OR First class mail OR Electronic distribution (prior agreement by owner for same) |
|
||
|
Operating Rules |
Personal delivery OR First class mail OR Electronic distribution (prior agreement by owner for same) OR circulated documents OR television programming OR with billing statement |
Civil Code Section 1357.130 |
||
|
Operating Budget |
First class mail only |
Civil Code Section 1365(d) |
||
|
Relocation of Owners |
To occupant – personal delivery or first class mail |
AND |
To owner – first class mail |
Civil Code Section 1364 |
|
Termination or Suspension of Membership |
First class mail |
OR |
Registered mail |
Corporations Code Section 7341 |
It should be noted that “personal delivery” is defined by the California Code of Civil Procedure as being the actual physical service of a given document to the person to be served. See, e.g., Code of Civil Procedure Section 415.10. Accordingly, dropping notices off at an owner’s doorstep or in an owner’s mailbox is arguably a violation of the “personal delivery” requirements for the documents requiring personal delivery. Delivery by dropping at doorsteps or mailboxes does not constitute the required “actual physical service” of the document for purposes of personal delivery. As such, associations must weigh the exposure to liability that may arise by dropping notices off at doorsteps or mailboxes (if “personal delivery” is required) against the cost to engage in a mailing or other method of delivery as authorized by the pertinent Code section.
The foregoing is a summary of some of the many distribution requirements
for homeowners associations.
We hope that this article assists you in navigating through the complexities associated with delivering legal notices and documents.