Robert Bumgarner: Restoring free speech rights to homeowner association members
October 1, 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.
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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. CalHomeLaw sponsored SB 407, which was introduced by Senator Bob Wieckowski (D-Fremont).
Robert Bumgarner lives in Penn Valley.
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