Restoring free speech rights to homeowner association members
The Union
Robert Bumgarner
01 October 2017
If you live in a community that's managed by a homeowner association,
you know that they often stifle the free speech rights of individual
owners.
That's because First Amendment constitutional speech protections apply
to governmental restrictions on free speech, not to private
corporations like those that control common interest developments.
This year, the legislature addressed that issue by unanimously passing
Senate Bill 407, a law that's aimed at restoring constitutional free
speech rights to 12 million Californians who live in common interest
developments. Gov. Brown signed SB 407 into law on Sept. 11, 2017.
Here are some of the issues that prompted that action by the legislature:
Homeowner's Associations often incorporate provisions in their
governing documents that restrict door-to-door solicitation. Those
provisions can be so broadly written as to prohibit non-commercial free
and political speech. For example, a common interest development
resident in Alameda County was cited for going door-to-door with
information about an elections bill that would have impacted homeowner
voting rights; she was summoned to a disciplinary committee, fined, and
ordered not to approach her neighbors again.
A Solano County common interest development issued a homeowner a cease
and desist order for inviting neighbors to an event he was hosting for
a mayoral candidate in an impending city election.
Another Alameda County HOA sent a letter to a homeowner, directing him
to cancel a panel discussion on "Civil Rights in HOAs" to be held in a
common area meeting room. The letter notified him that law enforcement
would be contacted should "unauthorized persons trespass or attempt to
enter the building in connection with the presentation/forum."
HOAs sometimes allow members to reserve community facilities but charge
access fees, require non-refundable deposits, and require sponsors to
assume all liabilities or pay insurance deductibles. Some HOAs waive
those fees for meetings of board-sanctioned social clubs. Fee policies
that discriminate between different kinds of meetings or attendees
raise concerns about controlling free speech based on likely content or
viewpoint.
SB 407 addresses those concerns by restricting the ability of HOAs to
include bylaws or rules in their governing documents that prohibit or
restrict any of the following activities:
Peacefully assembling or meeting with members, residents, or their
invitees or guests during reasonable hours and in a reasonable manner
for purposes relating to common interest development living,
association elections, legislation, election to public office, or the
initiative, referendum, or recall processes.
Inviting public officials, candidates for public office, or
representatives of homeowner organizations to meet with members,
residents, or their invitees or guests and speak on matters of public
interest.
Using the common areas, or with consent of the member, the area of a
separate interest, for an assembly or meeting on political and public
interest topics when that facility is not otherwise in use.
Canvassing and petitioning the members, the association board, and
residents for the activities described above, at reasonable hours and
in a reasonable manner.
Distributing or circulating, without prior permission, information
about common interest development living, association elections,
legislation, or other issues of concern, as specified.
The law also prohibits an association from requiring a member to pay a
fee, make a deposit, obtain liability insurance, or pay the premium or
deductible on the association's insurance policy to use a common area
for any of the specified activities.
To enforce the law, HOA members who are prevented by an association
from engaging in any protected activity may bring a civil or small
claims court action to enjoin the enforcement of any noncompliant bylaw
or operating rule. The court may also assess a civil penalty of not
more than $500 for each violation. Access to small claims court, where
attorneys are not permitted, offers members an affordable way to
challenge improper association actions.
Readers who want more information about how to prepare for expanded HOA
free speech rights should visit the Center for California Homeowner
Association Law website at http://www.calhomelaw.org.
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