Reader Questions - Is Our HOA Now a Free Speech Zone?

Dear Kelly,

Thank you for your always insightful columns. 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?

With what promises to be a contentious election season this year, this information will be quite timely.

B.S., Murrieta

Dear B.S.,

The new law you mention is Civil Code 4515, which bars associations from charging a fee or requiring insurance as a condition of holding meetings which relate to “common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes” (Civil 4515(b)(1)). That is a very broad (and vague) array of topics, but the association can still require a deposit or insurance for other uses of the common facilities. Also, while the statute says the association cannot bar the use (if the facility is available), that does not mean the HOA has to give carte blanche. For example, if someone wants to hold an event and serve alcohol, the association could reasonably allow the meeting, but not allow food or alcohol to be served without a deposit or insurance. In that instance, the HOA would not be banning the meeting, but only restricting food or alcohol at the meeting.

Section 4515(b)(2) is more troubling. While all the other protected meetings under the statute refer to meetings of members, this section provides that a meeting “(i)nviting public officials, candidates for public office, or representatives of homeowner organizations” can include members, residents, and their invitees or guests. So, if someone wanted to push a particular political candidate and hold a rally for that candidate in the clubhouse, that member’s outside invitees could participate. This could be quite troublesome if the community is gated, overwhelming the security staff, or if the speaker is quite controversial (or even abhorrent). Without naming examples, we can all imagine a scenario in which a candidate known for hate speech or other repugnant positions is invited to speak in the HOA – and no matter how awful the candidate or their views, this statute protects their right to be invited and for the member inviting them to bring outside guests.

With regard to the posting of signage, this has been covered by Civil Code 4710, which became law in 2004. That statute protects the right of residents to place non-commercial signs of up to 9 square feet in size or banners of up to 15 feet in size in their separate interest or exclusive use common area. This means that a homeowner in a planned development could place one sign of up to 9 square feet in their lot, so long as the sign was non-commercial and not made of certain prohibited materials.

Thanks for your question,
Kelly

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®.