Beaumont Tashjian Law Blog

Thursday, March 1, 2018

Senate Bill 407: Non-Commercial Solicitation and Right to Assemble In Common Area Meeting Places

By: Jeffrey A. Beaumont, Esq.

Myth. Our community doesn't have common area meeting space so we don't need rules addressing the new law [SB 407].

Fact. Adopting rules in light of the new law would address meetings in the common areas, such as lawns, community pool, etc., and door to door solicitation and canvasing ... so it really applies to every community! Creating rules would establish reasonable hours and days of the week when a member can solicit/canvas; and establish fines and penalties for violations; etc. among other things. Without rules and regulations communities are exposed to unbudgeted expenses and conflict.

This myth is a common response we have received in response to the new law. Now that the law has been effective for several months, let's revisit its purpose and details.

The California Legislature passed this bill with the intent 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.” (Civil Code Section 4515(a).)  The law has significant impact on all communities, with or without common area meeting spaces. 

Civil Code Section 4515 reads:

“(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:

(1) Peacefully assembling or meeting with members, residents, and their invitees or guests 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.

(2) Inviting public officials, candidates for public office, or representatives of homeowner organizations to meet with members, residents, and their invitees or guests and speak on matters of public interest.

(3) Using the common area, including the community or recreation hall or clubhouse, or, with the consent of the member, the area of a separate interest, for an assembly or meeting described in paragraph (1) or (2) when that facility or separate interest is not otherwise in use.

(4) Canvassing and petitioning the members, the association board, and residents for the activities described in paragraphs (1) and (2) at reasonable hours and in a reasonable manner.

(5) Distributing or circulating, without prior permission, information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner.

(c) A member or resident of a common interest development shall not 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 a common area for the activities described in paragraphs (1), (2), and (3) of subdivision (b).

(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.”

As you can see, this law addresses the right to use common area for meetings and the right to distribute information and canvas and petition the community.  As for meetings, this law requires Boards to allow residents to invite a member from the public to speak to fellow residents.  The participating resident cannot be charged a fee or security deposit for the use of common area facilities. This law also allows residents to distribute information and petition and canvas the community, all “for purposes relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes.”

Section 4515, fortunately, provides that the specified meetings, distributing information, petitioning and canvasing may be “during reasonable hours and in a reasonable manner.”  This means, in my strong opinion, that Boards can and should adopt reasonable regulations, following the 30-day owner comment procedure required by the Davis-Stirling Act for the adoption of operating rules.  (Civil Code Section 4360.)  This is critical as Section 4515 creates many issues that, if not addressed in reasonable rules, exposes associations to unbudgeted expenses and conflict.

RECOMMENDATION

In light of this new law, I strongly recommend that Boards adopt common area meeting and solicitation rules to address the various issues created by this new law.  For example, a policy should:

  1. Require owners to reimburse the association for any and all costs incurred to clean the common area meeting space;
  2. Require owner to reimburse the association for any costs incurred to repair damage caused by the member, resident or their invitees;
  3. Require owners to reimburse the association for any and all costs necessary to use the common area meeting space, based on the type of meeting, such as costs to set-up or break-down, required security, etc.;
  4. Establish reasonable protocol for reserving meeting space;
  5. Establish reasonable hours and days of the week when an owner can use common area meeting spaces;
  6. Establish reasonable hours and days of the week, including holidays, when an owner can distribute information and petition and canvas the community; and
  7. Establish fines and penalties for violations.

CONCLUSION

I strongly recommend that all Boards contact their association’s legal counsel to prepare customized rules and regulations to govern the use of common area meeting space and the distribution of information and petitioning and canvasing the community.  Without rules and regulations communities are exposed to unbudgeted expenses and conflict. 


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