There are times when levying a special assessment is necessary or prudent to obtain needed funds. However, if not well planned and properly implemented, a special assessment can turn into a nightmare for the Board, and for you.
Here are some key tips to help avoid such a nightmare.
Ascertain Whether a Member Vote is Required
California Civil Code (“Code”) § 5605 controls when a member vote is needed to levy a special assessment. No matter what an association’s governing documents state, a member vote is not required to levy a special assessment if that special assessment individually, or when combined with any other special assessments levied the same fiscal year will not exceed 5% of the association’s budgeted gross expenses for that fiscal year. Conversely, a member vote is always required if the special assessment individually, or when combined with any other special assessments levied the same fiscal year will exceed 5% of the association’s budgeted gross expenses.
The Civil Code Sets the Member Approval Requirement
If member approval is required, Code § 5605 also dictates the votes needed to approve the special assessment, as well as quorum. The affirmative vote of a majority of a quorum is required to pass a special assessment. A quorum is more than 50% of the members.
Comply with the Civil Code When Conducting the Vote
A member vote to approve a special assessment must be conducted using the double-envelope secret ballot voting process set forth in Code § 5100 et seq. In short, this means providing all members with a ballot, two balloting envelopes and the association’s election rules at least 30 days before the voting deadline. (The election rules can be omitted if they are posted on the association’s website and the ballot contains the language mandated by Code § 5105.) It also means having one or three qualified inspectors of elections open and count the ballots at a duly noticed meeting whereat the members can observe this process, and providing members with notice of the vote results within 15 days.
Notify the Members
Regardless of whether a member vote is needed, members must be given written notice of a special assessment no less than 30 days and no more than 60 days before that special assessment becomes due in accordance with Code § 5615. If a member vote is required, this notice can be combined with the notice of the outcome of the vote that must be provided to members so long as: 1) this notice is provided via “individual delivery” and 2) the special assessment will become due between 30 and 60 days after this notice is given.
Payment is Important
It goes without saying that when planning a special assessment, it is critical to consider when the funds will be needed. However, there are other factors that should also be considered.
If members will be voting on whether to approve the special assessment, giving members more than one payment option (e.g. the option of paying in one lump sum or in installments over time) may increase the likelihood of members voting in favor of the special assessment.
On the flip side, if members will be given the option of paying over time, it is possible that more members will decide to pay over time than expected. If some or all of the special assessment monies are needed quickly, this situation could result in a serious cashflow problem for the association.
If a special assessment is to be paid over time (e.g. monthly installments), it is important to secure the debt in case any members file bankruptcy or sell. The longer the payment period, the greater the likelihood of collection issues. However, securing the debt means going through the pre-lien and lien process, which can be costly for the members who are subject to this process. Thus, levying a special assessment that will or can be paid over time may only be a perceived benefit to members if the assessment amount will be significantly greater than the pre-lien and lien costs.
It is a good idea to have members who cannot pay a special assessment when due enter into a payment plan whereby they agree to pay the assessment within a longer period of time that is acceptable to the Board. Doing so will help the Board predict the association’s cashflow and prevent any misunderstandings as to what payment allowances the Board is granting. It may also create good will with members who are struggling financially. However, a payment plan should generally be used in addition to, and not in lieu of a lien, because a payment plan will not secure the debt. A lien will.
In the event a member fails to pay the special assessment and that debt is not secured, the association’s only recourse for collecting the debt is to file a lawsuit against the member. The association cannot collect the debt via foreclosure unless the debtor still owns the separate interest and a lien is filed.
When in Doubt, Encourage the Board to Consult with Legal Counsel
While it may be tempting to save a little money by not consulting with the association’s legal counsel for guidance when levying a special assessment, making a special assessment misstep could cost the association a lot more in time and money. For example, a mistake could result in a missed opportunity for the association, create a serious cashflow problem, necessitate a second member vote and/or place the association in the position of having to return to members any special assessment payments received. It could also leave the association vulnerable to liability for violating the Code and unable to collect from delinquent members.
*This article was originally published in the Summer 2022 Issue of The Law Journal by the California Association of Community Managers (CACM).