Free Speech in HOA?

I can hear the dialing of the phones to the ACLU now . . .

Anna: "1. Can a Board stop free speech or freedom of expression in writing over-riding the law of the land?"

The "law of the land" only prohibits GOVERNMENT abridgment of free speech.

Private corporations can. And do.

Can a Board control written options via email or US mail? A corporation is owned by people other than employees. An Assoication are the homeowners.

Anna, it is type of cra…er crud like this that gives HOA's the bad rap. This rule IMHO would not withstand a court challenge as being reasonable. But since you're in California that may not even be necessary because the BOD has many hoops to jump through before imposing a new rule and the members can actually override the rule:
(From davis-stirling.com)(bold by little old me)

Adopting Rules

"Operating Rules" are defined as any regulation adopted by the board of directors that applies to the management and operation of the association or the conduct of its business and affairs. Civil Code §1357.100 This includes pets, parking, use of the common areas, member discipline, architectural standards, election procedures, any schedule of monetary penalties, etc. Civil Code §1357.120(a)

Excluded are decisions relating to common area maintenance, a specific matter (as opposed to a general policy), assessment amounts, a nondiscretionary rule change required by law, or a rule that repeats existing law or the Association's Bylaws, CC&Rs or Articles of Incorporation. Civil Code §1357.120(b)

Enforceability. Civil Code §1357.110 An operating rule is enforceable if:

* in writing,
* within the board's authority,
* consistent with governing law and the associations governing documents,
* adopted in good faith, and
* reasonable

Notice of Proposed Change. At least 30 days before a vote on adopting or amending an operating rule, the board must mail a copy of the proposed change to the members, along with an explanation of their purpose and effect.

Adoption in Open Meeting. After the 30-day period, the board may adopt the rules at a duly noticed open meeting of the board, taking into consideration of any comments made by association members. Civil Code §1357.130

Notice of Adoption. Within 15 days of voting on the rules, the board must notify the membership of the results of the vote. Civil Code §1357.130

Member Veto of Rule Change. Members owning 5% or more of the separate interests may call a special meeting of the members to reverse a rule change. Civil Code §1357.140(a) The written request may not be delivered more than 30 days after the members of the association are notified of the rule change. Civil Code §1357.140(b) The board must give notice of a special meeting and send out ballots pursuant to Civil Code §1363.03. The rule change may be reversed by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present. Civil Code §1357.140(c)

Notice and Ballot. Notice of the meeting and ballot are sent by the board. The board must also notify members of the results of this vote within 15 days. If an operating rule is reversed, it cannot be re-adopted by the board for at least one year. However, the board may vote on other operating rules covering the same subject. Civil Code §1357.140(f)&(g)

Emergency Rule Change. If the board determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change; and no notice is required. An emergency rule change is effective for 120 days. Civil Code §1357.130(d)

This comment is so absurdly ignorant of law that it really does not deserve consideration or even refutation.

Pot - Kettle ....

At any rate, George is wrong. As Michele noted, private corporations can and do impose limits on "free speech". The major multi-national corporation where I work won a court case a few years ago where an employee tried to sue because he was told to remove his religious propaganda. The court ruled that his posters and fliers where not protected in the private workplace.

More relevant to HOAs though - look at campaign signs. As has been posted here many times, depending on the state, homeowners don't automatically have the "freedom of speech" right to post campaign signs in their yards. The U.S. Supreme Court has basically punted the issue back to the states, where some states have ruled that HOA restrictions on signs are not valid, while other states have ruled that they are. Those of us in states where no ruling has been made one way or the other will have to decide for ourselves if our CC&Rs allow signs - at least until somebody does challenge it in court.

As to mail, I don't see how the HOA could place any restrictions on that. I don't even think that would be a freedom of speech issue. I would think that would be covered under the Postal rules.

I would think that the real issue here would be as Glen pointed out: does the HOA Board even have the right to enact a new restriction (regardless of the free speech aspect) without the approval of the membership? Typically R&Rs from the Board only clarify how the restrictions that already exist in the CC&Rs will be enforced. The Board usually can't come up with a new restriction on their own.

Maryland Law allows homeowners to distribute information relevant to their condo/HOA even if soliciting is prohibited. Also, election materials are usually not considered solicitations and are typically allowed.

Excellent suggestion!

A few years back we had a special assessment meeting set. It was in the amount of $15,000 to have some large old oak trees cut down. No information was sent prior to the meeting but some board members went door to door and solicited votes and proxies before the meeting. I refused to sign saying I wanted more info before voting. It turned out these trees were healthy but a couple of board members wanted them cut down on their property. I learned this when I asked that the trees to be cut down should be marked so owners would know what was involved. It was a bit silly, some tiny small trees were marked and could certainly have been done by our landscaping company.

(1) Our docs prohibit cutting down healthy oak trees, and (2) These two owners wanted the association to pay for cutting down their trees so they wouldn't be bothered with leaves dropping.

I printed out a flyer with all the facts and delivered them door to door. I was new to the board and had been left out of the loop. A day later I received a call from another board member saying I should have notified the board before doing this and I replied "I did not do this as a board member but as an owner which is my right". 40 out of 101 members attended and voted no for the special assessment. This type of thing is what give boards a bad name.

This goes hand in hand with something that is happening at our Condo HOA.

Can a President adjourn a meeting and reconvene at his home without board members who he deems are against some issues? I believe this is a stupid question however I have been told that is what is going to happen at tonight’s meeting if the President doesn’t like what the owners and two board members have to say about our finances (we are in trouble).

Our bylaws state that a quorum is 2 directors so he figures he can take the other two board members who he can manage to a closed meeting and vote on issues because he is president.

Ruth,

I'm sure there's nothing in your bylaws which would prevent this, but this is very wrong!!I would just let the Pres know that there are x number of members on the board and you all expect to be noticed of all board meetings. Just because he can muster a quorum does not mean he has the right to omit some members from a board meeting. If you are friendly with his 2 cronies perhaps you can put the bug in his ear that they'd better watch their step because they could find themselves in disfavor with the Pres and be omitted from a meeting too. Ask them if they think this is really proper. Frankly I think this guy should be removed as Pres.

Ruth,

Just hang in there.

I agree that raising the dues for several years is much better than a special assessment. And most definitely agree the members should be told of this plan together with an explanation of what the consequences are with both methods:

1) raise dues = a constant flow of excess funds to deposit in the depleted reserves which will eventually result in a more adequately funded reserve.

2) special assessment = a one-time deposit to the reserves which is OK when the percent funded is weak (below 30%). But, assessments should still be raised to allow for monthly deposits to get the percent funded to a much better position.

If the board only wants to do one or the other, raising the assessments would be a much better plan resulting in a long-term benefit.

Typically, a reserve fund should be 70% funded. A reserve study will recommend the yearly contribution rate of increase.

That's pretty much the heart of the issue, StanM. The Board can and will do anything it believes it can get away with. Who wants to be a martyr today? Welcome to HOA living.