Beaumont Tashjian Law Blog

Thursday, May 31, 2018

When the Law Collides with the Governing Documents: How the Board’s Duty to Enforce is Impacted by SB 407

By Lisa A. Tashjian, Esq. 

Fortunately for board members and management alike, community associations are given teeth in their often unavoidable conflicts with homeowners, via the governing documents. When a homeowner fails to submit an architectural request form before making structural changes to their residence, or when he or she is relentlessly committing a nuisance, the Board typically has the ability to impose discipline against the owner in the form of suspending his or her common area privileges, i.e., use of the community clubhouse. For example, common provisions in the CC&Rs provide:

  • “In the event of an architectural violation, the Board shall have the right to suspend the right to use Common Area Facilities;” or
  • “In the event of a breach of any provision of the Governing Documents, the right to use the Common Area Facilities may be temporarily suspended by the Association.”

Complicating matters for board members and management is Senate Bill 407, which, as of January 1, 2018, expands on Civil Code Section 4515, requiring associations to provide equal access to common areas for candidates and members for the purposes of advocating a point of view during an election. The bill protects certain free speech rights, such as meeting and canvassing, by allowing owners and residents of community associations to use common area facilities for meetings related to association issues, legislation, elections to public office, and public ballot measures, without being charged a fee.

Where an owner or resident in the community has violated the governing documents, SB 407 may prevent the board from suspending his or her common area privileges. For example, the resident may argue that this type of disciplinary action is restricting his or her right to peacefully assemble and freely communicate under Civil Code Section 4515. Moreover, if the Association violates the new law, it can be subject to a $500.00 fine for each violation.

That said, what’s a board to do when the governing documents give it the right to suspend an owner’s common area privileges, but the owner protests, citing the new law? While the law is still new and has not yet been under scrutiny by judges, arguably, the board cannot prohibit the use of common congregational areas, regardless of what right the governing documents give it to do so. On the other hand, can’t the board argue that it is just carrying out its fiduciary duty and enforcing the CC&Rs?

Here, two approaches are viable:

  1. Conservatively, the board may opt to suspend the problem-owner’s common area privileges (i.e, access to the community clubhouse), except for purposes that are protected by Civil Code Section 4515; or
  2. Aggressively, the board bans the owner’s use of common area facilities entirely, expecting to defend itself against a potential legal challenge by the owner later on down the line.

However, as with all complicated and conflicting issues such as this, you should contact legal counsel for guidance. Additionally, a clear and concise common area meeting and solicitation policy, as well as transparent disciplinary procedures will help the board and management protect themselves, while giving owners, residents, the board and management alike, clarity and direction.

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