On October 7, 2021, California Governor Gavin Newsom signed Senate Bill 392 (“SB 392”) into law. Roseman Law has received several requests to provide additional information on how SB 392 impacts community associations. This article provides a brief overview of SB 392 and important considerations regarding how associations provide their members with documents via general and individual delivery.
What Topic Does SB 392 Cover?
SB 392 mandates that an association shall deliver a document in accordance with the member’s preferred method of delivery. This means that, under the correct circumstances, associations may use email as the default method when sending documents or notice to members via individual delivery. Before we dive more into the specificity of SB 392, we have provided definitions of “general notice” and “individual delivery” because associations and interested members should be apprised of their differences.
General Notice. If a provision requires “general delivery” or “general notice,” the document may be delivered by one or more of the following methods:
- Any method provided for delivery of an individual notice pursuant to Civil Code 4040.
- Inclusion in a billing statement, newsletter, or other document that is delivered by one of the methods provided in this section.
- Posting the printed document in a prominent location that is accessible to all members, if the location has been designated for the posting of general notices by the association in the annual policy statement, prepared pursuant to Section 5310.
- If the association broadcasts television programming for the purpose of distributing information on association business to its members, by inclusion in the programming.
Individual Delivery. If a provision requires that an association deliver a document by “individual delivery” or “individual notice,” the document shall be delivered by one of the following methods (Civil Code 4040(a)):
- First-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service carrier. The document shall be addressed to the recipient at the address last shown on the books of the association.
- Email, facsimile, or other electronic means, if the recipient has consented, in writing, to that method of delivery. The consent may be revoked, in writing, by the recipient.
Effective January 1, 2023, Civil Code 4040 is being amended, and where a provision exists which requires an association to deliver a document by “individual delivery” or “individual notice,” the association is required to deliver that document in accordance with the preferred delivery method specified by the member. Importantly, this preferred delivery method can now be email.
However, if the member has not provided a valid delivery method, the association shall be required to send individual notice of documents by first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier addressed to the recipient at the address last shown on the books of the association.
Requirements Under SB 392
1. SB 392 requires a member to provide the member’s preferred delivery method for receiving notices. Additionally, the member must provide an alternate or secondary delivery method for receiving notices. Associations must include the options of receiving notice by mail, email, or both.
2. Under SB 392, a member does not have to provide an email address to the association. In this instance, an association must provide a member with individual notice by traditional mail. (See above definition of “individual delivery”.)
3. Further, SB 392 requires associations to annually notify each member that, by providing an email address to the association, the member agrees that communication between the member and the association shall be conducted by email. Accordingly, association’s may want to nudge their members to adopt this preference given that it is cost effective and less of a burden for the association.
4. Lastly, SB 392 requires associations of at least 50 separate interests to maintain an internet website to provide general information to members Notably, SB 392 exempts an association from this requirement to maintain an internet website if two-thirds of the members vote against it.
Prohibitions Under SB 392
SB 392 prohibits associations or their managing agents from transmitting or selling a member’s personal information to a third party without the consent of the member unless required to do so by law, as specified.
What Are Practical Steps for Associations to Take to Comply With SB 392?
SB 392 requires that the association request the members preferred method of individual notifications at least 30 days prior to the association distributing its Annual Budget Report. Associations are advised to prepare and distribute a form to each member annually requesting the above information, and requiring it be returned to the association by a specified date. If a member fails to provide this required information, the last mailing address provided shall be deemed the address to be used by the association.
Why Does This Law Exist?
Governor Newsom signed SB 392 into law, in part to amend existing law to provide associations with less burdensome options in how they deliver documents to their members. This bill brings the current law up to date with existing technology so that homeowners can easily elect to obtain documents by email. Importantly, if members decide to provide the association with their personal information, (i.e., email address), the association must still take steps to manage and protect this information.