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SB 407 - Right of Assembly

» Posted December 7, 2017News

In 2006, the Davis-Stirling Common Interest Development Act was amended to add a new process for almost all homeowners association membership votes, like the election of directors. At the same time, the law was amended to require that every homeowners association draft rules regarding membership votes.

As part of those rules, each homeowners association is required to ensure free access to the common area meeting space (if any exists), during a campaign, to all members advocating a point of view, including candidates. Additionally, the rules must also ensure that if any candidate or member advocating a point of view is provided access to association media, newsletters, or Internet websites during a campaign, for purposes that are related to that election, equal access must be provided to all candidates and members advocating a point of view.

The 2006 law has caused some difficulties for homeowners associations. It was likely drafted to address concerns with terrible abuses by incumbent directors in a handful of associations. However, in order to address these abuses, board members find it more difficult to disseminate important information related to membership votes. For example, if a board tries to explain, in writing, why amendments to the governing documents are being proposed by the board, providing this relevant information exposes the homeowners association to having to distribute misinformation, drafted by and at the request of individual members who may have personal reasons for wanting the voting efforts to be unsuccessful. This distribution of individually authored misinformation must be done at the Association’s cost.

Now, in 2017, the legislature has seen fit to take this matter further. New Civil Code section 4515 requires that no governing document, including the operating rules, may prohibit a member or a resident from engaging in certain activities, including peacefully assembling or meeting 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 (“proper purposes”). Clearly, this should not be an issue for just about all homeowners associations. In our experience, we have never seen a homeowners association attempt to prohibit someone from having a private gathering in their own home, unless a nuisance was being caused because of excessive noise or light, parking problems, etc.

However, the new law does not stop with simply ensuring a right to assemble for the “proper purposes” listed.  The new law provides that the owner may use the common area, including the clubhouse, as well as their own separate interest, “for an assembly or meeting” for the proper purposes listed.  A resident or tenant may also do so with the consent of the member. In drafting the rules, certainly one would assume that reasonable steps can be taken to ensure that the association does not suffer out-of-pocket costs associated with damage from the use of the facilities. However, the legislature seems to have dismissed this concern. The new law provides that the member or resident cannot be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use the common area for the proper purposes listed.

 Members and residents may also not be prohibited from “canvassing and petitioning” or “distributing or circulating information” to the members, the association board, and residents for these same activities at reasonable hours and in a reasonable manner.

If a member or resident is prevented by the association or its agents from engaging in any of the activities described, that person can bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates the law. In addition to granting the injunctive relief, the court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

As a result of the new law, many homeowners associations will need to review and amend their rules and facility rental agreements. Without amendments, many associations will find that the rules and agreements conflict with the new law.