Effective January 1, 2018, associations must allow members and residents to assemble, meet, speak, canvass, petition, distribute and circulate information about a variety of HOA related and public topics on association property.
Assembly and Meetings. Member and residents may not be prohibited from peacefully assembling or meeting with other members, or residents, or their respective invitees or guests for purposes relating to (1) CID living, (2) association elections (generally or specific to your association), (3) legislation (everything from local ordinances to international treaties, related to California, the US, or anywhere), election to public office (local, state, US, international, or any other sovereignty), or the “initiative, referendum, or recall processes” (involving any HOA, or political body regardless of jurisdiction or sovereignty). A meeting to discuss a prospective or pending HOA board recall would likely be considered for a purpose related to the recall process. (Civ. Code §4515(b)(1).)
Public Officials, Candidates and HOA Representatives. Members and residents may not be prohibited from inviting public officials, candidates for public office (without regard for jurisdiction or sovereignty), or “representatives from homeowner organizations” to meet with members, residents, invitees and guests to speak on any matter of public interest. “Homeowner organizations” would include such groups as California Associations Institute (CAI), California Association of Community Managers (CACM), and Education Community for Homeowners (ECHO), but also could be broadly interpreted to include any homeowners association. Any “matters of public interest,” when considering the Legislative intent, would include any CID living, social, political, educational, and, to the extent it would overlap any of those categories, religious purposes. However, while meeting and speaking about religious issues in the context of politics, society or education would be permitted, exercising religious rights, such as prayer sessions or religious services, would likely fall outside the scope of this statute. (Civ. Code §4515(b)(2).)
Use of Common Area. Members and residents cannot be prohibited from using any portion of the common area, including the community or recreational hall or clubhouse, for the assembly or meetings discussed in the prior two sections. Further, members cannot be charged a fee or required to made a deposit, buy liability insurance, pay premiums or deductibles on the associations’ insurance policy when the common area is being used such purposes. A private home also may be used for the same purposes and under the same conditions, with the owner’s consent. (Civ. Code §4515(b)(3); (c).)
Canvassing and Petitioning. Members cannot be prohibited from canvassing or petitioning (1) members, (2) the association’s board, and (3) residents to participate in the above permitted activities (assembling, meeting, speaking with public figures, etc.). (Civ. Code §4515(b)(4).)
Distributing and Circulating. Members cannot be prohibited from distributing or circulating, without permission, information about (1) CID living, (2) association elections, (3) legislation, (4) election to public office, (5) the initiative, referendum, or recall processes, or (6) other issues of concern to members and residents. This is by far the broadest and most overreaching portion of the new law. The scope of information which may be distributed, without permission, is effectively unlimited. It need only be any matter which concerns a member or resident. (Civ. Code §4515(b)(5).)
Reasonable Restrictions. While the above matters may not be prohibited, they may be restricted. To prohibit is to disallow entirely. To restrict is to allow, but subject to conditions which, in this case, must be reasonable. The right to certain reasonable restrictions is provided in the statute.
- Peaceful Assembly and Meeting. The assembly and meetings permitted in the statute to discuss CID living, etc. must be peaceful. §4515(b)(1). Associations may prohibit violence, threats, excessive noise, or other non-peaceful assemblies and meetings. While the language of §4515(b)(2) permitting meetings with public officials, etc., to speak on matters public interest does not include the same “peaceful” requirement, associations should be allowed to reasonably require those meetings to be peaceful as well.
- Scope of Meetings and Speaking Topics. While the scope of the purpose for assembly and meetings allowed under §4515(b)(1), the scope of the subject matter of speaking at meetings allowed under §4515(b)(2), and the related canvassing and petitioning allowed under §4515(b)(4) are broad, they are not unlimited. Associations should consider adopting rules restricting such activities to this purposes expressly allowed by statute. While the same could be done as to distributing and circulating of information under §4515(b)(5), it would be less effective since the authorized subject matter– issues of concern to members and residents – is effectively unlimited.
- Reasonable Manner and Hours. Associations may restrict the assembly and meetings relating to CID living, etc., the canvassing and petitioning, and the distributing and circulating permitted by §4515(b)(1), (4) and (5) to being undertaking in reasonable manners and at reasonable hours. While the same restrictions are not expressly provided for in §4515(b)(2), associations could reasonably restrict meetings with public officials, candidates and the like, in the same way.
- Reasonable Canvassing and Petitioning. This type of activity usually involves mailing and direct contact with others. Mailing should be unrestricted. Phone contact could be unrestricted or limited to reasonable hours. Since phone numbers are not an official part of an association’s membership list, the association has no duty and should not distribute phone numbers to its members or residents. Open forums at a board meeting or at a reasonable time during a membership meeting would be appropriate venues for such activities. Since the purpose of this statute is to allow, but not force members and residents to participate in these activities, the visiting of private residences should be allowed, at reasonable hours, subject to the right of a member or resident to opt out of such direct solicitation. Excessive unsolicited contact, after being rebuffed by a resident, could be considered harassment. Reasonable hours for such activities should be late enough that most members are home from work, but neither so early nor late as to interfere with people preparing to go work or who may be sleeping. Discrete contact in the common area (either by chance or at a pre-determined location, such as at an entrance gate or pool area), should be permitted, but associations may restrict aggressive unwanted contact to protect member/resident privacy, preserve quiet enjoyment and abate a nuisance.
- Reasonable Distributing and Circulating of Information. This activity may include mailing or sliding flyers under front doors, door mats, or behind screen doors. It may also include passively handing out flyers in the common area in the same manner as canvassing or petitioning above. Posting should also be allowed in common area bulletin boards. But associations should be able to prevent the affixing of flyers and other papers to common area walls, doors, windows and the like, except where such would be otherwise permitted under Civil Code §4710 (noncommercial signs). Also, associations should be justified in restricting flyers from being placed on private vehicles.
Election Rules. An association’s election rules may require amendment to conform to allow members to meet to discuss association elections or recall processes and distributing or circulating information about same.
Penalties for Violations. Members or residents who are prevented from engaging in activities protected by this new law may seek injunctive relief and imposition of a civil penalty of up to $500 in civil or small claims court. (Civ. Code §4515(d).)
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