– By Laurie F. Masotto, Esq. (originally published in January 1998)
There is no doubt that a homeowners association is required to keep written minutes of the proceedings of its members, the board of directors, and its committees. (Corporations Code Section 8320.) The issue that often causes confusion is what should be included in the minutes. How much, how little, and how long? Should each and every word uttered at a meeting be reflected in this document? How about the fact that Homeowner A read Homeowner B the “riot act” after he heard assessments were being raised? What if a homeowner or Board member requests that his or her statement be placed in the minutes “for the record”? This article is designed to shed light on issues regarding association minutes.
Purpose of Minutes
The sole purpose of minutes is to objectively record association business that takes place at membership, board and committee meetings. Brevity should be the rule, not the exception. At a minimum, the minutes should reflect the following: the type of meeting (member/board/committee); the place held and time started; the persons present (membership collectively at members’ meetings; board members and other consultants/managers present); general nature of reports given (e.g., financial, landscape committee); motions proposed, including who moved and seconded the motion and whether the motion carried; a general description of any items tabled for the next meeting; and, finally, the time the meeting adjourned.
Since the Board is required to establish a reasonable time for open homeowner forum under Civil Code Section 1363.05, the minutes should reflect that such time was given, and the general nature of concerns or comments made by the members. Specific comments or statements do not need to be included. If a homeowner requests that a statement be included, the chairperson of the meeting should respond that while the comments are appreciated, the board cannot accept requests for inserts in the minutes, as this is not the purpose of the minutes.
With respect to board members’ requests that their vote be reflected, such as a “no” vote or “abstain”, such director is entitled to have such matter indicated specifically in the minutes.
The minutes should not be used to “punish” those members who are in the midst of disciplinary action, or who are delinquent in payment of assessments. Rather, if any action needs to be taken with respect to an account, only the account number should be referred to. (The account number should not be traceable directly to a residence or owner.) If disciplinary action is being taken for a violation of the governing documents, the minutes may reflect the address and the general nature of the violation and the action taken. An example is: “Management was directed to start violation proceedings at 123 Flower Street in connection with parking of a vehicle.”
Under California law, board members may adjourn into executive session, outside of the presence of members, to discuss threatened or pending litigation matters, personnel matters (i.e. hiring/firing), formation of contracts, member discipline, and other similarly sensitive topics. Civil Code Section 1363.05 (c) provides that the minutes need only reflect the general nature of the matters discussed in executive session. It is recommended that “minutes” of executive sessions not be taken, but that the minutes reflect the general nature of the items discussed as well as any motions made after such discussion. For example: “The Board adjourned from the regular meeting into executive discussion to discuss landscape services. After such session, the Board moved and seconded to hire XYZ Company.” More explicit notations reflecting the discussion held in executive session only increases the possibility that such document will end up in the hands of a person for which the discussion was not intended, which can prejudice the association’s position in a legal action, and increase potential liability.
If the executive session is not held in connection with a regular meeting, the general nature of the executive session, and any motions made, should be contained in short written notation, and kept with the association’s records. If you need assistance in formulating a “general” description without infringing on the discussion that was had, the drafter should consult with its legal counsel.
Along the same lines, when communication from an attorney is contained in the board packet, the minutes should not repeat the advice in the letter, as such falls within the attorney-client privilege. The minutes may note, for example, “After reviewing correspondence from legal counsel, the Board moved and seconded to direct ABC contractor to repair the pipe in the wall between Unit 22 and 24.” Similarly, discussions with attorneys present at the meeting are privileged and the specifics should not be set forth in association minutes.
Avoid Opinions and Speculative Statements
Association minutes are not the forum to air grievances and insert opinions or other speculative statements regarding association matters. Rather, the minutes should set forth the facts of the business proposed and taken. Since homeowners and board members are not experts, it is improper, and could be problematic, to include opinions of certain issues. For example, when reporting a problem with a component of the project, such as a roof leak, the general type of problem should be noted, but a homeowner’s or board member’s opinion of the cause of the problem is not appropriate. Any questions regarding what is proper to insert into the minutes may be directed to legal counsel.
In short, minutes should be a concise, objective summary of the business that was conducted, and free of privileged matters. A few extra minutes spent in drafting these important documents should benefit your association in the long run. When in doubt, consult legal counsel.