Reader Questions - Freedom of Speech and AssemblyMay 13, 2019
Dear Mr. Richardson,
Our board is considering banning informal meetings in common areas. To me, this sounds like a violation of the constitutional right of assembly, but are there laws in California that cover this?
I have a question regarding the new state law supporting use of common facilities for political activities, and one on first amendment rights. The new law allows residents to use common facilities for political meetings without charge. May the HOA limit attendance to only residents, residents and guests according to its adopted policies, or may/must these programs be open to all?
Can an HOA prohibit the display of political signage on front lawns? For example, must the HOA allow residents to have campaign signs? Are there limitations to this allowance like size, length of display time, etc., as established in the HOA rules and policies?
Dear S.M. and B.S.,
Two Davis-Stirling sections create First Amendment-type rights in HOAs – Civil Code Sections 4710 and 4515. Section 4710 protects the right of members to display noncommercial signs or banners in or on their separate interest. In a typical airspace condominium that would mean inside a window or sliding door, and in a planned development would allow such a sign or banner to be displayed anywhere within the lot. There is a size limit but no time limitation on display.
Can the HOA stop a resident displaying an offensive racist or prurient sign or banner? No. However, under the current federal Fair Housing regulations (and the soon to be official California Fair Housing regulations), the HOA or any resident could file a complaint with HUD and/or the California Department of Fair Employment and Housing.
Civil 4515 became a law in 2018. It protects the rights of members and residents (so, including also non-resident owners) to peacefully assemble with members, residents or their invitees or guests to discuss HOA issues or “other issues of concern.” The statute also bars associations from requiring deposits or insurance before the member or resident uses common area and allows reasonable canvassing of association residences regarding HOA issues or “other issues of concern.”
Many questions and disputes almost certainly will arise from this law. Here are some examples.
It appears that residents or members may invite non-residents to attend such meetings. Could the event be advertised in the surrounding community, and would this make the private HOA a public accommodation? Could residents invite a public figure and charge a fee to attendees? Non-owner residents (tenants) are not bound by the CC&Rs, so if the tenant holds an event under this statute in the clubhouse and damage occurs, how does the HOA hold the tenant responsible? Normally, once a landlord rents out the residence, they lose common area rights, but this statute gives the landlord and tenant access to the clubhouse. Regarding community canvassing, can residents in gated communities opt out of door to door visits?
Other questions surely will arise regarding Civil 4515, which in retrospect is another example of a good legislative idea poorly executed. Common interest communities are private organizations, and this statute ignores the private character of associations and privacy, a key aspect of their desirability.
Good luck all of us as we navigate these murky waters.
Written by Kelly G. Richardson
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.