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A Road Paved with Good Intentions

Addressing Unintended Consequences of New Public Assembly Laws Affecting Homeowner Associations

By Katrina E. Solomatina
Published: Feb 2019

It all starts with good intentions

As the California legislature expressed in the stated legislative objective behind Civil Code section 4515:

The homeowners' associations that operate the common interest developments (CIDs) are quasi-governmental entities with great power over the lives and property of their residents, including powers exceeding those of local governments. Unfortunately, those powers have too often been used to control their residents and squelch opposing views with very little regulation or oversight.

So the legislature, taking matters into its own hands, enacted section 4515 effective January 1, 2018, which clarifies the rights of homeowners (and residents) in CIDs to engage in politically expressive activities within the CID and freely communicate with others concerning CID living or for social, political or educational purposes having nothing at all to do with their community.

What the law prohibits

Specifically, this law makes it unlawful for a CID's governing documents to prohibit homeowners or residents from:

  • assembling peacefully, inviting public officials, candidates for public office, and representatives of homeowner organizations to meet with homeowners and residents as well as their invitees and guests;
  • using common areas for political meetings; canvassing and petitioning other CID members and residents; and
  • distributing information, without prior permission, about matters of general public political concern and matters relating specifically to life in the CIDs.

The statute does say that such member assembly should take place “at reasonable hours and in a reasonable manner,” however, neither the statute nor the legislature provides any guidelines for “reasonable hours or in a reasonable manner.”

The Legislature took it a step further

Pursuant to section 4515, homeowner association's governing documents also may not prohibit the use of association's common area (including, community or recreation halls, and club houses) for such political or CID assembly purposes. In addition, an association cannot charge a fee for such use.

During the process leading up to enactment of the law, the Assembly considered but rejected provisions of the bill that would have allowed homeowner associations (HOAs) to require deposits or insurance for the use of common areas for political activities. Instead, the law prohibits an HOA from charging a deposit or requiring insurance as preconditions for use of a common area for political activities. An association can be subject to a fine of $500.00 for violation of the law.

Associations impacted first-hand

The primary impact of these provisions will be upon associations with indoor common area meeting rooms or clubhouses, although other associations without common area buildings could also be potentially affected if they have outdoor areas easily used for meetings.

How the associations could be impacted

The legislature clearly decided that homeowners in a community should bear the cost and some degree of risk associated with hosting political meetings.

In addition, this law might expose an association to claims that it has not properly accommodated the disabled under the Americans with Disabilities Act. While the ADA does not generally apply to associations it can if they are deemed to provide public accommodations. This can occur for example if a meeting room is leased to the public for a fee or if the association hosts events attended by the public (swim meets are a common example). If the ADA does apply, an association might have a duty to have suitable restrooms (doors that swing wide, grab bars, etc.), proper signage, widened gates, curb cuts and other physical changes needed to accommodate those with mobility impairments.

Protections for the associations

The law does permit associations to adopt some regulations and limitations on the use of common areas for public assembly purposes. These include requiring:

1) a use agreement that contains, among other things, a broad indemnity/hold harmless in favor of the Association; 2) use of common area to comply with currently operative time and occupancy limitations; 3) hiring patrol if same is required for paid use; and 4) clean up, “no damage” and other use restrictions and requirements not expressly prohibited by the statute. Additionally we believe – although this has not been tested – that the association can prohibit admission to members of the public responding to advertisements or signage in public places (i.e., downtown) promoting a particular event.

We understand some might wish to impose a “cover charge” for attendees. We doubt this would be enforceable since this could be characterized as prohibited limitation on someone's right to attend a meeting; also, charging a fee could make it harder to argue that the meeting was not “open to the public” thus increasing the chance of ADA exposure.

Finally, while the association cannot require the “host” to have insurance, the association can strongly encourage it by reminding the host that if damage or claims ensue they could personally be held responsible.

Conclusion

There is obviously no “one-size-fits-all” solution to potential issues with implementation of the new right to assembly law in the HOAs. Only time will tell and hopefully the legislature could provide a more clear guidance on the restrictions HOAs could place to protect themselves and ultimately their members and our liberties which we all hold dear.

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