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I HAVE FREE SPEECH RIGHTS! Really?

Owners, it’s time for a lesson on how to get what you want out of your Condo or HOA board.

Have you used this one? “I HAVE FREE SPEECH RIGHTS” (implying that gives you carte blanche to be a bully or disrupt an association meeting). Well, it doesn’t.
 
There has been a lot in the news lately about the difficulties of “town hall” meetings in the context of informing constituents about pending legislative issues. A “town hall” meeting can be a great forum to discuss issues and collect gems that help to discover problems, and solutions. Or the meeting can be a melee, out of control, where people get hurt and nothing gets accomplished. (Maybe you have seen “Parks and Recreation” ion TV with Amy Poeler, very funny and sad at the same time – although she tries hard and keeps a stiff upper lip, it’s challenging to put yourself out there in front of a crowd that is less than satisfied with local government.)

The Constitution guarantees the right to “free speech” but for every rule there is an exception. With regard to these kind of rights time, place and manner restrictions can be imposed (ever wonder why you have to get a parade permit?).

 Be advised that an HOA or Condo board can set reasonable time, place and manner restrictions too. Although California law requires boards to allow homeowners to speak at board meetings, it also allows the board to impose reasonable restrictions, such as when a “homeowner forum” will be held (before, during or after the meeting, or interspersed with action items) and allows boards to use an egg timer to limit time.

Bullying your way through claiming it’s your “Constitutional right!” is not a way to get what you want. It’s a way to get a meeting shut down and prevent others from exercising their rights. I recently did an E-newsletter on how to deal with bullies at meetings and otherwise – the E-News is free, and all editions are published on my website in the E-News Archives.

You can also check out my other blog – California Condo & HOA Law Blog.  I just put up a blog about getting what you want without suing (which often turns out to be a complete waste of resources!).

50 Responses to I HAVE FREE SPEECH RIGHTS! Really?
  1. susan reiner-Lyon
    November 18, 2009 | 4:39 am

    What is the process for recalling HOA board members eg.: list of problems with the board and reasons to recall, content of a petition to recall, Percentage of owners to sign the petition ,time frames to gather HO’s signatures, what do we do once we get the signatures, etc, thank you

    • Beth Grimm
      November 18, 2009 | 7:02 pm

      I am glad you asked, but it is complicated – in fact, about 40-50 pages complicated. That is why I offer a “Recall Guide” in my publications options on the Guru website for fifty bucks!

  2. B Stewart
    July 27, 2011 | 10:11 pm

    What if the disruptive association member is a board member/board member’s family? The board always read us the speech ahead of time about how disruptions will not be tolerated but almost always a board member/or her spouse will start ranting at a homeowner during the course of the meeting, tempers will flare and the meeting will shut down with very little productivity. Agenda items that we want discussed are always at the tail end of the list of business and when productivity is shut down, people walk away and our agenda items never get discussed. Then the next homeowner’s meeting/board meeting is held months down the road. How can the rest of us homeowners control these circumstances and get some of our items discussed?

    • Beth Grimm
      July 31, 2011 | 4:05 am

      This sounds like a very unproductive situation – the best remedy is at election time to elect new board members and whoever wrote the email, to lead the charge! Encourage neighbors to come and see what the board isn’t accomplishing; it seems it would be smart of other owners to step up to the plate. Owners don’t have much control unless they are sitting on the other side of the “table”.

  3. Tom Heffernan
    May 5, 2012 | 9:18 pm

    I heard that a recent ruling (or new law) says that California condo owners who disagree with their board may ask the management company to send a letter to all the homeowners expressing opposition. The management company must send out the letter at the association’s expense because it is protected political speech. Is this true? If so, which legal statute is it and what are the details? I’ve looked for the law online but can’t find it. Is it part of Sterling-Davis?

    I would like to inform my fellow homeowners directly because most don’t attend our poorly noticed board meetings. When you are the only one speaking out at board meetings it is very easy for the board to ignore you. Low attendance plays right into the boards hands. If many people show up with the same complaint it carries a lot of weight. It would also encourage participation.

    The board says posting a cryptic one-page agenda is enough. Meeting minutes are no longer mailed out or posted. The homeowners are being kept in the dark and the board is fine with that. There is no real authority in California a homeowner can easily turn to for help when a condo board ignores its responsibilities. So, I want to take my complaints directly to the other owners and motivate more of them to get involved.

    Thanks, Tom

  4. Harold Van Alstyne
    May 12, 2012 | 10:56 pm

    We have a very large coral tree planted in the common area it covers approximately 50 to 60 feet in circumference, covering portions of the common area, sidewalk, portions of the street, a street light that is completely covered, and our entire patio in front of our condominium. We have no sun, and the leaves are falling into our patio. My wife cleans the patio twice a day. We have approached a member of the HOA asking her if the tree could be trimmed so that we could use and enjoy our patio as our neighbors are able to do. We are told that “it will never happen” and the tree will be trimmed in nine months. At present, it is the first of May, 2012; meaning that the coral tree will be trimmed next February, 2013. Due to the unusual circumstance, we are required to endure; we would like to know what our rights are; so that we could approach the entire HOA in a reasonable and prudent manner to see if there is any way we are able to resolve these circumstances.

    • Beth Grimm
      August 10, 2017 | 3:30 pm

      If its small claims court you will be on equal footing if you get some help from someone who can help you organize your presentation.

  5. Roselyn M. Craft
    January 17, 2013 | 4:09 pm

    How can we control these from happening? What are things that vitally needs to be discus?

    • Beth Grimm
      January 17, 2013 | 7:50 pm

      I am not sure what you are asking for feedback on. It would help to know what perspective you are looking from (board member, manager, or owner) and what specifically in the article you are referring to when asking the questions. For example, if you are asking how to control or address people who unreasonably argue their offensive conduct is justified, that is one question. If you are asking how far one can go to act – with the Free Speech defense available, that is another. Asking about what things vitally need to be discussed could relate to a large myriad of openings. Can you be more specific in your questions?

  6. Darrell White
    March 9, 2013 | 4:22 am

    Another home owner and I applied for use of our multi purpose room to hold an open forum for HOA members to discuss whatever they wanted. The application was approved and an e-mail blast was sent out announcing the time and place. When the Board heard about this four of the five members instructed the property manager to contact us and advise us our application was being denied.

    We have asked for a written explanation and told we would get one but have not as of this writing.

    As you might imagine, there are many more details regarding this issue and we would like to know what our inital costs would be.

    Thank you,

    Darrell White

  7. Beth Grimm
    July 1, 2013 | 3:55 am

    This email is relatively common. When someone who lives above lets their tub runover if there is no insurance to cover the damage then I think the person who suffered the damage, if they have to pay to fix it, could recover a judgment equal to what they paid to fix the damage, so long as they could prove the cause. One can take a claim to small claims court for about $25 or so, and have the complaint served by a friend over 18 for free, or a marshal for about $45. But also, there are other considerations in an HOA, like what the documents say about water damage and insurance, and maintenance, and who is supposed to be insuring what. So I cannot give a definitive answer to this question, but strongly urge homeowners to supplement HOA master policies with HO-6 or similarly applicable individual insurance policies written for owners and tenants in condos and attached homes.

  8. KCameron
    September 25, 2013 | 3:23 am

    Our homeowners have run rampant, posting flyers in each others’ mail boxes, and/or sending emails back and forth copying many homeowners. At board meetings, usually 2 individuals will stand up during open forum and yell attacks at or about someone, whether that individual is present or not (and not always the same offenders). Often it turns into a shouting match, other times it’s just the one individual until s/he can be quieted. Most of these instances are horrifically damaging, accusing, defensive, attacking, false, and probably illegal. There have been probably 3 dozen in the last month, from half that many contributors, out of over 200 homeowners. We are an owned mobile home park (i.e. each owns shares of the corporate mortgage – the land our mobile homes sit on). How do we stop this? The attacks have been (false) accusations of lot line stealing, questioning the validity and/or monopoly of outside vendors, attacking current and past board member actions, minutes, decisions and lack of; management of finances, competency, etc. Our entire board was just recalled; now most of the flyers are actively attacking (and defending) the mental and physical health, competency and pasts of the new candidates who are preparing to run. It’s insane.

    • Beth Grimm
      October 15, 2013 | 4:26 am

      ONE way I can see for a board to try and overcome this kind of craziness is to put out some kind of publication to the members pointing out the issues and suggesting solutions, trying to get the attention of the not so crazy owners to perhaps tone down the crazies, if that is possible. If you got a development full of bozos instead of the usual one or two rabble rousers, then I sympathize, but it sounds more like a lot of distrust has developed and an effort has to be made to rebuild trust. Throwing jabs will not do that. Responding in kind to the craziness will not do that. Acting prudently and pragmatically might have a chance.

  9. Francia Gaunt
    March 19, 2014 | 6:33 pm

    What is a reasonable length of time to allow homeowners to speak at regular board meetings? You suggested the use of an “egg timer,” but what is a sufficient and fair amount of time.

    If a homeowner has a request before their HOA Board, how can they be assured of full participation, when strict Roberts Rules of Order are applied calling for an immediate motion to be made? My research indicated that strict Roberts Rules of Order are to be applied with larger full-community meetings. Also we only have 18 homes in our HOA so how would you recommend that we structure the discussion on homeowner requests and issues?

    • Beth Grimm
      April 24, 2014 | 5:05 pm

      I suggest 3 minutes is sufficient time. The owners who wish to have more time can submit statements in writing to the Board or a letter with more detail if they wish.

      As for participation – owners do not have any rights to suggest motions or participate in the business portion of the meeting. If an owner wants to raise a motion at a membership meeting, just be apprised that there are specific election requirements in California that encompass most subject matter – calling for a written secret ballot and specific process, so it is unusual for a member to suggest motions at membership meetings any more.

  10. Nick
    March 21, 2014 | 5:59 pm

    The condo association I am a member of has a rule regarding the open forum part of a regularly scheduled meeting that the Board will not allow any prepared statements to be read unless they have be pre-approved first by the Board of Directors. I am not a good extemporaneous speaker and feel this rule can lead to selective enforcement and discrimination against certain speech or speakers. Have you ever heard of such a restriction and if so, is it common throughout condo associations in California?

    • Beth Grimm
      April 24, 2014 | 5:01 pm

      This is the first I have heard of it. The Board basically has charge of the meetings and has to allow owners to address the board but can set some reasonable restrictions on time, etc. I do feel that the board is stepping on the line; however, perhaps there is a reason for it. I don’t believe the restriction is illegal, and suspect it will not be challenged in court because of the cost. But I would say unless there is a good reason to adopt such a restriction, it doesn’t “taste good”.

  11. Chung Lam
    May 3, 2014 | 4:04 pm

    Some Condo disputes, such as disturbance of traffic within the condo, living noise due to neighbors, has not appeared in the Questions and Answers as they are common. Can we get some of these issues discussed.

    • Beth Grimm
      May 4, 2014 | 7:43 pm

      Noise is described all the time. Search these blogs and also those on my other blog accessible from the main page at californiacondoguru.com. Or ask some specific question so I can answer it. (Must be generic enough to help others or won’t get posted.)

  12. John Kazanis
    June 1, 2014 | 11:19 am

    The former president of the condo moved a very noisy washing machine to my floor from another floor. They do not want to fix it or replace it. I thinking of taking legal action because it has taken more than two years. My wife refuses to come to Florida because of this. Do I have a case?

    • Beth Grimm
      June 24, 2014 | 3:56 am

      If you can get a third party to tape the noise or testify and it gets the attention of a small claims judge you may have a case. If you pay a lawyer lots of money to go to “big court” you might rather spend it on a new washing machine for your neighbor – the silent kind. Maybe you could share part of the expense to get peace. I can guarantee it would be cheaper than to pay a lawyer to fight your case.

  13. John Kazanis
    June 1, 2014 | 11:25 am

    I came from New York to stay on my condo in Florida. Now for the first time I see two dogs on my floor. The condo has a no pets policy. They tell me that these are “therapeutic dogs”. I told them that I bought this condo because of their no pet policy because I am allergic to dogs. What action should I take?

    • Beth Grimm
      June 24, 2014 | 3:54 am

      Grin and bear it. Suck it up. Check with a lawyer in Florida about the pet laws there -two seems overkill for someone who needs a depression buddy. Fair housing laws trump the desire for peace. However, if you have pet allergies work with the association to see if you can to get reasonable accommodations for your problem. It’s been done. Compromise may be necessary.

      And one other thing. Fair housing laws do not mean someones pets can be a nuisance, so there is that aspect if the pet owner is not controlling the pet or cleaning up after it/them.

  14. Jane Newstead
    June 17, 2014 | 11:40 pm

    Our Board has an “open forum” at each meeting with limited time for each member to speak. This would be okay if the members are bringing new problems/issues to the table. However, controversial subjects are often addressed and decided in the meetings with no opportunity for owners to raise concerns/questions on the subject. I suspect that this is totally permissible but is poor communication with owners and a bad practice. What do you think?

    • Beth Grimm
      June 24, 2014 | 3:52 am

      I agree. If Boards overlook the importance of allowing comment or surveying owners on controversial topics they lose trust, and then it becomes hard to lead.

  15. GLORIA DUGAN
    July 23, 2014 | 1:38 pm

    Is it true that in CA HOA town hall meetings only allow home owners to speak 3 minutes, and express their concerns? I was told it was a State Law, I can’t believer that!!! Hmm!

    • Beth Grimm
      September 4, 2014 | 5:36 am

      California state law requires boards to offer owners the opportunity to address the board at a board meeting (called homeowner forum time). The law gives Boards the right to control the time (meaning time when the forum is held and the time an owner can speak). And some boards have taken this to townhall meetings.

      Believe it or not, most boards do not want a meeting to go on for hours so they set time and 3 minutes is common, perhaps because that is the length of the old time hourglass shaped egg timers. 3 minutes is enough time to say your piece, and you can always supplement the comments by turning in a written statement. But some boards do allow unfettered time, because the owners in their associations do not abuse the opportunity. Others try to contain meetings to a “timed agenda”, and others have their reasons when the forum time is limited.

    • Beth Grimm
      October 23, 2014 | 7:22 pm

      State law allows a board to set time limits on the owners’ right to address the board. If you ever served on a board where the meetings lasted more than 2 hours, or where the same owner or owners comes to every meeting and wants to go on and on with a litany of complaints that are repetitive and unhelpful, you would likely understand the inclination of boards to limit owner discussion times. Any owner can always submit a written litany if they do not feel they have enough time to address the board at a meeting.

  16. John MacLean
    August 23, 2014 | 7:55 pm

    If board members continually violate the CC&Rs is there any way to enforce the rules. I keep reading about all the problems but can not see how the rules can be enforced. It seems that they are just a nuisance to certain boar members since they can’t be enforced outside of a recall where the same people keep getting reelected due to lack of participation. For example: People would keep running stop signs if there weren’t police to enforce the laws. How does a homeowner have the board follow the CC&Rs if the board ignores them. Hire an attorney, small claims etc. and who pays for the legal fees?

    • Beth Grimm
      September 4, 2014 | 5:18 am

      Tough questions and issues. What it comes down to is a pragmatic course of getting other owners interested in running for the board, working toward turnover, getting involved, getting advice as to certain steps that can be taken to achieve this (and doing some work to make it happen) or accepting what is. Owners have rights to enforce the restrictions in the CC&Rs equally with the board (except for taking steps to collect the assessments). The question is how to go about it.

      Whenever I do not know how to do something, I consult someone who has the expertise to help me. Complaining about any given situation never improves it. We all have to deal with things we don’t like in life. The question is – what are you willing to do to effect change?

    • Beth Grimm
      October 23, 2014 | 7:20 pm

      Many boards are able to enforce the rules because they have good rules, circulate them, impose consequences in the form of disciplinary policies (fines and such), approach issues with a positive view rather than a police-state, and work to get the word out so a certain amount of peer pressure is applied because people want a nice place to live.

      But a board has to be inclined to enforce the rules, or things go downhill.

  17. Karen Newton
    October 22, 2014 | 9:52 pm

    The HOA & management company where I live will not allow a renter to attend the meetings. The renter’s landlord is 90 years old and can’t attend meetings. What are your thoughts about this issue?

    Thank you.

    • Beth Grimm
      October 23, 2014 | 7:07 pm

      Boards are not required to allow non-members to attend meetings. That said, some communities have shown an interest in involving tenants so (1) the board knows where they stand, and (2) the tenants are informed about what is going on. However, in some HOAs the boards think tenants are all bad and the board should keep its distance, sometimes advised by the HOA attorney to do so. The HOA does not have a legally contractual relationship with tenants and a board’s involvement can, in some cases (1) give an owner an excuse to argue the board has to make the tenant comply with the rules, (2) open up the door to increased legal exposure for more “landlord tenant” legal implications.

      If a tenant procures a special power of attorney to attend association meetings, a board might honor it, unless the tenant attendance becomes a problem. My feeling is the board should honor it, unless the tenant becomes a problem at the meetings. One association had me write documents that allows a certain percentage of the board to be filled by tenants who have been long term residents. This community see the value in involving tenants who want to live in the community.

      The more tenants are ostracized, the wider the chasm becomes between owners vs. tenants.

    • Beth Grimm
      December 26, 2014 | 10:17 pm

      Different associations take a different approach to renters. Some even allow them to serve on the board. There are pros and cons to involving tenants and different boards take different approaches, sometimes based on their own perspectives, and sometimes based on legal advice.

    • Beth Grimm
      March 16, 2015 | 5:07 am

      It’s really up to a board to set the requirements for attendance at a meeting. Most do not allow renters but those that do often better integrate renters into the community. A renter can come to meetings if an owner gives them a special power of attorney to represent them at the meetings in my opinion. I’m not sure all attorneys would agree.

  18. Bette Hamilton
    May 31, 2015 | 2:27 pm

    Our BOD are attempting to stop our Town Hall Meeting by saying it is a private meeting of an individual and cannot be called a town hall meeting. Additionally, after allowing the first one which was successful, they now will not post the sign outside the rec hall and want a contract signed and deposit and say the park may be liable if our insurance won’t cover the meeting. The board members attended the first one as the audience but some of them did not like what the owners had to say or suggest. There seems to be no reason written in our Condo docs preventing an open meeting like this and it would appear as a civil right to have it.

    • Beth Grimm
      June 8, 2015 | 3:18 am

      If an owner calls a meeting it should not be called a townhall meeting. That term suggests that a politician or body of government has called the meeting to get feedback. The better thing to do is call it what it is, a meeting to discuss: …. (whatever purpose the meeting is called for) and any notice put out should identify specifically who is arranging the meeting so no one is confused about the meaning of it.

      Owners can have meetings in their homes, the local coffee shop or the clubhouse if meetings are allowed in it. But the board has the right to set consistently applied rules and policies about use of the clubhouse and other facilities. I would not recommend that a board make any attempt to control what is said or by whom, unless it could be inciteful to the point of causing a disturbance or the like.

      There is not a “civil right” to have a meeting in a private clubhouse in a private HOA. But rules need to be applied consistently. And it is for the protection of the association and all owners to have some structure around use, which may include implementation of a contract and insurance requirement when private use is allowed.

  19. Lola Zimmerman
    July 6, 2015 | 5:30 am

    Hi Beth. I enjoy your blog and have learned alot. You make legal things easy to understand.

    We are in the process of a member vote by mail to destroy a piece of the common property. A board member who is against the demolition sent me information about what to do on the ballot if I was also against to demolition. This common area item adds value to our units.

    Is his information distribution allowed? Is it his freedom of speech rights? Is it breaking with his responsibilities to the board?

    • Beth Grimm
      August 17, 2015 | 9:31 pm

      A board member can have an opinion and circulate it. He or she is entitled to a copy of the membership list to communicate with other owners. Or entitled to communicate with them through a mailhouse mailing set up by the association so a membership list does not have to be provided.
      The cavaets:

      (1) he or she needs to make it clear they are giving the opinion as a personal opinion and not representing the board’s position.
      (2) any other member must be given equal opportunity to give their views, at the HOA expense if the board member’s effort was paid for with association funds.

    • Beth Grimm
      September 14, 2015 | 3:35 am

      Wow, this is one that I cannot even begin to answer without knowing more, and establishing a confidential relationship with a client to discuss the right thing to do. As a threshold, directors are not supposed to disclose confidential information gathered in an executive session of the board so it is not likely I would be recommending the information be passed on to others knowing that. However that does not mean you are without remedies for opposing the ballot measure or communicating with other owners about it. I don’t want to condemn or judge the actions of any one in this situation without being able ask questions about what is going on, the overall situation. I do owner consultations. There is a fee. 1 hr. minimum, $275. The information is on my website http://www.californiacondoguru.com.

  20. Sandra Nabaum
    November 6, 2015 | 11:06 pm

    Hello Beth.
    It is a pleasure having someone on the condo owner’s side – thank you. I am a condo owner from Utah and my HOA fee includes heating and cooling however, HOA regulates boilers as we have radiant heating and cooling. For the past 3 years, since the latest HOA board and Management Co. have been “ruling” the heat/AC is turned on when they think is necessary so I don’t need to tell you our heat has just been turned on (barely) 3 days ago. Did I mention I live in Utah? Anyway, I am under the impression the HOA is violating our contract with not providing me with the necessity included into my HOA dues. I (we) have to beg every winter for the heat to be turned on or turned up and not to mention our HOA dues are pretty hefty. There is no rule in the CC&R’s or R&R’s about this issue. Do I have any rights as a condo owner to prevent this from happening?

    • Beth Grimm
      November 15, 2015 | 4:48 am

      I am sorry but I do not know anything about Utah law. If this was happening in California I would have to say that I know of no cases or law. I would look for language in the documents that says something about the board having to act in the best interests of the collective group, or to preserve the safety and well being of owners or something like that. Of course there might be a split in the membership between those that would rather save the money and those that would rather be warm. I know that between me and my kids, we would have pretty diametrically different views on this (I am the one that likes to be warm and am willing to pay a higher price for this by the way).

      There must be some alternative available to make things tolerable. What about zone heating (one room) by use of the electric heaters. Not sure if that is even feasible. You may have the legal right to contact other owners by getting a mailing list (which is the case in California), to see what other owners think and try to get a majority to put pressure on the Board. These are just suggestions-a judge might find this type of question difficult to deal with.

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