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Freedom of speech doesn't end once you enter a homeowner association

Question: I live in a common interest development with a homeowner association board that aggressively stifles residents’ freedom of speech.

During association elections, the board makes ample use of newsletters, meetings and minutes, association media, the recreation room and other channels to get across its point of view. This propaganda is distributed at the association’s expense, but when owners ask for “equal access” we don’t get it. For example, to use the clubhouse for a meeting we are told that we must purchase insurance, pay a deposit and a nonrefundable cleanup fee in advance — and then sign a waiver.

The fines and penalties are particularly harsh for anyone who disobeys the board’s rules. One homeowner invited a local City Council member to speak at a Memorial Day gathering but when the board found out, it shut the event down. It even threatened to have security guards remove the council member from the grounds if he showed up.

With each new lawyer and law firm that our board hires, new roadblocks and crimes against residents are invented to increase revenue and control the behavior of those who live here. Is there any way we residents can get a fairer living environment?

Answer: This is a problem that many homeowners have complained about for a very long time. While federal and state laws that clarify citizens’ rights to free speech in public areas and at schools or jobs have existed for years, the issue of freedom of speech within common interest developments is now serious enough that it finally has caught the attention of state lawmakers.

The Legislature is considering a bill written by state Sen. Bob Wieckowski (D-Fremont) that would amend the common interest development act to directly address this problem. SB 407 would add Civil Code section 4515 to the act to “ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.”

This means that not only will the association members be free to discuss issues relevant to their community; they will be free to meet, speak and distribute material about larger social and political issues that interest them.

The current text of the bill specifically prohibits governing documents, including bylaws and operating rules, from barring meetings of owners and their invited guests during “reasonable hours” to discuss HOA issues, legislation, elections to public office, initiatives and similar matters.

Owners also are given the right to invite public officials and candidates for office to speak in common areas, such as clubhouses. And it bars any fees, deposits or charges for insurance premiums or deductibles when the facilities are used for such purposes. Furthermore, owners cannot be prohibited from distributing information to or canvassing other members about both association matters and larger political issues.

The law has some teeth. Any member or resident who is improperly restricted from exercising their rights will be entitled to bring a civil or small-claims action for a court order that would halt enforcement of a governing document that violates section 4515. The court may also assess a civil penalty of up to $500 for each violation. To be clear, association governing documents cannot be amended to supersede the statute if it is signed into law.

Perhaps one of the most important aspects of the law is that is prohibits boards and management companies from barring the distribution of political material without prior permission. That view is supported by a 2013 lawsuit that ended up before the California Supreme Court.

In Wittenberg vs. Beachwalk Homeowners Assn., the board's newsletter was freely distributed, but non-board members were not permitted to provide opposing viewpoints or distribute their own materials during board campaigns.

Homeowners also demanded use of common areas during campaigns, but were denied, prompting a lower court to state “the association's legal obligation … was to ensure access to the common area meeting space … to all members advocating a point of view … for purposes reasonably related to the election. The board did not fulfill its obligation.”

The court held that the board must either give equal access to opposing viewpoints or forgo the use of association media to advocate its own viewpoint. Beachwalk’s appeal to the California Supreme Court was denied review.

Case law and existing Civil Code section 5105 also requires your board to give equal access at no cost to the common area meeting space during campaigns for a board or other elected association positions “to all candidates, including those who are not incumbents, and to all members advocating a point of view, including those not endorsed by the board, for purposes reasonably related to the election.”

A final vote on SB 407 is expected after the Legislature returns from its summer recess in August. Should the bill make it out of the Legislature and be signed by Gov. Jerry Brown, it would further level the playing field for owners who go up against entrenched boards and management.

It makes clear that the freedoms we all enjoy in other parts of our lives will now finally extend to common interest developments.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.

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