A recent unpublished decision in a California Court of Appeal presented the unusual question: what if the word “may” actually means “must?” In Mays v. Oakview, the Court seemingly came to that conclusion. Specifically, it found that an association's failure to meet quorum is no excuse for not conducting annual elections.

In that case, the Oakview Homeowners Association acknowledged the members did not elect directors for several years, including 2018, 2019, 2020, 2021, and 2022, because the Association could not meet quorum. An owner, Ms. Mays, ran for a seat on the board in 2020, 2021, and 2022, but year after year, a quorum was not achieved, and an election of directors by the membership did not take place. According to documents from the inspector of elections for the 2023 election cycle, a quorum was not achieved, and the members present adjourned the meeting. A virtual meeting was held on June 20, 2023, but a quorum was again not achieved. The members in attendance voted to forgo any further attempts, and the next annual meeting and election was scheduled for May 21, 2024.

The Association's bylaws stated that in the absence of a quorum: “…the Members present ... may adjourn the meeting to a time not less than five (5) days nor more than thirty (30) days from the time of the original meeting was called. The quorum for an adjourned meeting shall be fifty percent (50%) of the total voting power of the Association.”

Mays sued to enforce the Association's governing documents, requiring elections to be held annually; the Association argued that elections could not proceed without the necessary quorum and that the membership chose not to adjourn the meeting to a later date per their rights under the bylaws. In short, the Association proceeded precisely how most association law firms would have advised.

The Court found that language throughout the Association's governing documents conflicted with the permissive language in the bylaws regarding the adjournment of a member meeting. The Court found that the Association's interpretation that the membership “may” or “may not” adjourn the meeting to another date and time if a quorum is not achieved would defeat the governing documents' express intent that members “shall elect” directors at the annual meeting and would serve to divest the members of their right and responsibility to elect board directors.

The Court took it a step further. It removed the members' ability to decide whether to adjourn the meeting to a later date when the quorum is not met initially. The Court stated that even in the face of a vote by the members present to forgo another meeting if a quorum is not achieved, the bylaws require the Association to notice the time and place for another meeting. By ruling in this manner, the Court – in ostensibly attempting to protect the membership's right to determine its governance – actually removed members' rights not to act.

Despite clear permissive language in the Association's bylaws, the Court determined that “while the Bylaws do not appear to permit an annual meeting and election to be held without a quorum, it appears that, in the absence of a quorum, the meeting must be adjourned no less than five days and no more than thirty days from the date of the original meeting.” In this way, the word “may” was interpreted to mean “must,” a massive change in how Courts have routinely interpreted permissive language in governing documents.

These types of decisions make it so that lawyers can never be confident in providing legal advice because there could always be some court that makes an absurd ruling.  Here, the Court bent over backward to alter the plain meaning of the Bylaws provision at issue. The only consolation for associations is that it's an unpublished case, therefore not binding on other courts. Nonetheless, its dicta could influence other courts to rule similarly misguidedly.