This HOA speech-chilling anti-harassment rule is fraught with problems

Question: Our 121-unit condo complex successfully removed the past board of directors. Before their removal, they adopted a draconian and subjective anti-harassment rule. The rule states: “Homeowners and residents are prohibited from screaming at, following, emailing and stalking directors, committee members, vendors, etc. Any violation of this regulation will result in a $200 fine per infraction.”

No board meeting minutes document adoption of the rule. A manager posted, then instantly removed from a clubhouse window, an announcement of the board’s majority vote for the new rule but did not define “harassment.” Immediately fines were issued to people the board or manager disliked. It feels like a prison, residents are afraid to say hello to anyone. Are the fines and the rule legal?

Answer: To be enforceable, rules should be clear and concise and based on objective standards that are rationally related to a legitimate association function. For the rule to be legitimate, the minutes must document the motion and vote, then proper notice must be sent to all titleholders pursuant to legal requirements before the rule is implemented and effective.

Here, the anti-harassment policy language leaves far too much open to interpretation. Potential victims of the rule’s enforcement must not be left to guess what, when and how they might be violating it.

This anti-harassment rule is unnecessary and may lead to more problems and liability than it is meant to solve. As drafted, there is no difference between screaming “happy birthday” or an expletive at a director. An email of any kind could also be declared a violation of the rule.

This rule has a remarkable list of infirmities: It is overly broad, vague and without a procedural foundation. Who is covered by the “etc.”? Can a board just dub someone part of “etc.” and fine an owner or resident for engaging with that “etc.”-person?

“Stalking” and “harassment” are legal terms for which existing law provides various remedies. Unlike a court, a board is not competent to decide when the relevant laws have been violated, making the rule legally unnecessary and impermissible.

Even if the rule’s scope were narrowed to legitimate problems, the amount of any fine must be rationally related to the problem it seeks to prevent. In the absence of proper, open board discussion and its record in the minutes, a fine of $200 is simply a number out of a hat that undercuts the legitimacy of the rule, making it excessively punitive.

Civil Code section 4365 provides that a petition signed by 5% of owners can force a vote of all owners on repealing the rule. Section 4365 requires that the petition be served on the board within 30 days of proper notice to titleholders of the rule’s adoption. But on the facts you describe, proper notice wasn’t provided, so the 30 days cannot have expired.

California law abhors attempts to use litigation as a means of chilling speech, even in private settings when that speech is related to a matter of public interest. Much of the speech and other forms of communication taking place within a common-interest development are protected by California Civil Code section 47(c).

If your anti-harassment rule were used to fine an owner who was actively participating in a meeting and talking about an issue of interest to the association, any legal action by the board to enforce fines it levies under the rule could be deemed a SLAPP lawsuit, for Strategic Lawsuit Against Public Participation.

Such lawsuits are typically brought to stifle the rights of petition and free speech, not for legitimate grievances. California’s anti-SLAPP law provides powerful defenses to such suits as well as damages and attorney fees to the oppressed defendant.

If the new board is unwilling to reverse speech-chilling policy, titleholders should seriously consider removing the present board. That would involve less work than initiating the petition process under Section 4365.

Michael Krieger, a Los Angeles lawyer practicing business contract, technology and intellectual property law, and 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.