Legal Question in Real Estate Law in California

For an HOA Board election, Civil Code §5115 indicates that the voter shall sign the envelope, in which he returns the vote, by mail. But, the code does not state what happens if the voter does not sign the outside of the envelope. It appears that most management companies have taken it upon themselves to deem the vote "not validated" and is, therefore, not counted. On the other hand, §5120 indicates, "All votes shall be counted and tabulated...." Not just the votes that had a signature on the envelope, "All votes" shall be counted. It appears that the Civil Code does not give a consequence for not signing the envelope, and it appears that the management companies are giving bad legal advice. Does anyone have any authority that supports a particular consequence (if there is one) for a voter sending in a proxy vote, without signing the envelope? Thanks so much.

Asked on 11/14/17, 2:43 pm

1 Answer from Attorneys

Fred Valentine Law Offices of Fred L. Valentine

The question is whether an unsigned ballot is a valid vote. The California County Absentee Ballot process also does not accept an absentee ballot that is unsigned. If a voter fails to sign the outer envelope, the votes are not in accordance with statute and possibly not counted. For an envelope to be valid, voters "shall" sign their names in the upper left hand corner of the outer envelope. (Civ. Code §5115(a)(1).) An invalid or illegible owner address on the outside of the envelope can also invalidate a ballot. A proper address and signature allows the Inspector to verify a voter's eligibility.

Ballots Excluded. In Clark v. McCann (2015 WL 9688162), the Registrar of Voters excluded ten ballots because the voters failed to include a valid residence address. The plaintiff argued that the Registrar should have taken extra steps to validate residences so as to count the ballots. The court disagreed. It noted that requiring voters provide a current address is not burdensome and verifies a voter’s eligibility to vote. The Registrar did not need to employ additional methods to confirm a voter's address. When applied to HOA elections, the court’s holding confirms that homeowners must comply with statutory requirements and ratify their eligibility to vote by providing a valid separate interest address on the outer envelope.

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Answered on 12/04/17, 12:37 pm

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