Freedom of speech doesn’t end once you enter a homeowner association
Los Angles Times
By: Donie Vanitzian
22 July 2017
Question:
I live in a common interest development with a homeowner association
board that aggressively stifles residents’ freedom of speech.
During association elections, the board makes ample use of newsletters,
meetings and minutes, association media, the recreation room and other
channels to get across its point of view. This propaganda is
distributed at the association’s expense, but when owners ask for
“equal access” we don’t get it. For example, to use the clubhouse for a
meeting we are told that we must purchase insurance, pay a deposit and
a nonrefundable cleanup fee in advance — and then sign a waiver.
The fines and penalties are particularly harsh for anyone who disobeys
the board’s rules. One homeowner invited a local City Council member to
speak at a Memorial Day gathering but when the board found out, it shut
the event down. It even threatened to have security guards remove the
council member from the grounds if he showed up.
With each new lawyer and law firm that our board hires, new roadblocks
and crimes against residents are invented to increase revenue and
control the behavior of those who live here. Is there any way we
residents can get a fairer living environment?
Answer:
This is a problem that many homeowners have complained about for a very
long time. While federal and state laws that clarify citizens’ rights
to free speech in public areas and at schools or jobs have existed for
years, the issue of freedom of speech within common interest
developments is now serious enough that it finally has caught the
attention of state lawmakers.
The Legislature is considering a bill written by state Sen. Bob
Wieckowski (D-Fremont) that would amend the common interest development
act to directly address this problem. SB 407 would add Civil Code
section 4515 to the act to “ensure that members and residents of common
interest developments have the ability to exercise their rights under
law to peacefully assemble and freely communicate with one another and
with others with respect to common interest development living or for
social, political, or educational purposes.”
This means that not only will the association members be free to
discuss issues relevant to their community; they will be free to meet,
speak and distribute material about larger social and political issues
that interest them.
The current text of the bill specifically prohibits governing
documents, including bylaws and operating rules, from barring meetings
of owners and their invited guests during “reasonable hours” to discuss
HOA issues, legislation, elections to public office, initiatives and
similar matters.
Owners also are given the right to invite public officials and
candidates for office to speak in common areas, such as clubhouses. And
it bars any fees, deposits or charges for insurance premiums or
deductibles when the facilities are used for such purposes.
Furthermore, owners cannot be prohibited from distributing information
to or canvassing other members about both association matters and
larger political issues.
The law has some teeth. Any member or resident who is improperly
restricted from exercising their rights will be entitled to bring a
civil or small-claims action for a court order that would halt
enforcement of a governing document that violates section 4515. The
court may also assess a civil penalty of up to $500 for each violation.
To be clear, association governing documents cannot be amended to
supersede the statute if it is signed into law.
Perhaps one of the most important aspects of the law is that is
prohibits boards and management companies from barring the distribution
of political material without prior permission. That view is supported
by a 2013 lawsuit that ended up before the California Supreme Court.
In Wittenberg vs. Beachwalk Homeowners Assn., the board's newsletter
was freely distributed, but non-board members were not permitted to
provide opposing viewpoints or distribute their own materials during
board campaigns.
Homeowners also demanded use of common areas during campaigns, but were
denied, prompting a lower court to state “the association's legal
obligation … was to ensure access to the common area meeting space … to
all members advocating a point of view … for purposes reasonably
related to the election. The board did not fulfill its obligation.”
The court held that the board must either give equal access to opposing
viewpoints or forgo the use of association media to advocate its own
viewpoint. Beachwalk’s appeal to the California Supreme Court was
denied review.
Case law and existing Civil Code section 5105 also requires your board
to give equal access at no cost to the common area meeting space during
campaigns for a board or other elected association positions “to all
candidates, including those who are not incumbents, and to all members
advocating a point of view, including those not endorsed by the board,
for purposes reasonably related to the election.”
A final vote on SB 407 is expected after the Legislature returns from
its summer recess in August. Should the bill make it out of the
Legislature and be signed by Gov. Jerry Brown, it would further level
the playing field for owners who go up against entrenched boards and
management.
It makes clear that the freedoms we all enjoy in other parts of our
lives will now finally extend to common interest developments.
Zachary Levine, a partner at Wolk & Levine, a business and
intellectual property law firm, co-wrote this column. Vanitzian is an
arbitrator and mediator.
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