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Please note that the following article is strictly to provide information and neither the content nor transmissions through this website
are intended to provide legal or other advice or to create an attorney-client relationship.
As of January 1, 2018, new Civil Code §4515 provides that an association's governing documents may not prohibit the peaceful assembly/meeting of Association members, residents, and their invitees/guests within the association project at reasonable hours and in a reasonable manner, for purposes related to:
The same §4515 separately establishes that an association's governing documents may not prohibit the inviting of public officials, candidates for public office, or, representatives of homeowner organizations to speak on “matters of public interest.”
Most associations will not be substantially impacted by either of these provisions by themselves because most associations do not currently prohibit any such gatherings (or the inviting of any specific class of persons).
However, §4515(b)(3) further provides that an association's governing documents also may not prohibit the use of association common area (including, community or recreation halls, clubhouses) for the above-referenced gatherings if those facilities are not otherwise in use. Finally, and probably most impactful, §4515(c) establishes that those using the common area facilities for this purpose may not be charged a fee and may not be required to (1) make a deposit; (2) obtain liability insurance; or, (3) pay the premium or deductible on the associations insurance policy!
This legislation will not have a direct substantive impact upon all associations. It will not impact associations that do not have common area or common area facilities that can be used for gatherings of the referenced nature. Further, it will likely not substantively impact an association that does not charge for, or require insurance for, common area facility use by members and residents. In such circumstances, this new legislation could be potentially addressed by minor, if any, changes in current operating rules and forms.
The primary impact of this legislation will be upon associations with facilities or common area that it to members and/or residents. However, even here, the manner by which the association may want to address these new requirements will likely vary considerably depending upon the specific facilities within the association, the manner in which they are typically reserved and used, and the manner in which their maintenance and operation is funded within the association.
In this regard, a number of associations that currently rent space and require insurance have decided to proceed with a very minimal adjustment to internal procedures (i.e. not enforcing the rental or insurance requirements with respect to qualifying applicants), rather than rolling out new and substantive operating rules that will draw the attention of the entire community to the potential no fee, no insurance use of the community facilities (associations have no obligation to advertise these rights or to promote such use). In this situation, the association can then wait to see if substantive problems manifest before considering substantive operating rule changes.
In other circumstances, associations will be well served by proactively addressing the issues implicated by this new law with substantive new operating rules. Through such rules, an association has a wide range of options. Most such options will relate, in some fashion, to the following important phrases in the new law: “at reasonable hours and in a reasonable manner” (related to the allowable assembly/meetings of members, etc.), and “if those facilities are not otherwise in use” (related to the “No Charge” use of common area facilities). These two phrases are not specifically defined in §4515. As such, pending further clean up legislation, or case law applying them, the new law leaves it to each association to do its best to determine what they should mean in each association's specific context.
If an association has chosen to create substantive operating rules to address this new law, some of the operating rule strategies it might wish to consider include the following:
Use Agreement — Requiring a Common Area use agreement that contains, among other things, a broad indemnity/hold harmless by the reserving member/resident (in favor of the Association). Such an agreement is not prohibited by this new legislation and will provide greater protection for the association in the case of damages, liabilities or clean-up costs. It may also prove to be particularly beneficial when a non-member resident reserves the space since the association likely has no other direct contractual relationship with that resident. Several associations currently plan to require the association member to expressly consent to their tenants utilization of the common area space in a manner that would make it clear that both the member and the tenant would be jointly and severally responsible for any damages, etc. However, questions have arisen as to whether an association is permitted to impose that member signature requirement in light of the specific §4515 reference to “residents” (as distinguished from “members”) in relationship to their respective rights.
Time and Occupancy Limitations — Requiring such “No Charge” use of common area facilities to comply with currently operative time and occupancy limitations. Association's may also consider requiring the requesting party to hire patrol if the attendees will exceed a particular number. This is more aggressive, but may be well justified if the association imposes that same requirement upon paid use of the same facility.
Use Restrictions — Requiring clean-up, “no damage” and other use restrictions and requirements not expressly prohibited by §4515.
Direct Invitees/Guests — Prohibiting the use of social media, posters and other mass invitation methods (and conversely, requiring that all invitees/guests of the member or resident be personally invited by the member or resident). This requirement would be difficult to monitor and/or enforce. However, some believe a rule of this nature will provide a stronger basis to defend the association if it were ever to be alleged that the nature of the invitations to the events addressed by §4515 caused the common area facility to become a place of “public accommodation” such that the sometimes onerous facility requirements of the Americans with Disabilities Act (“ADA”) would apply to it.
No Cover Charge/Entry Fee — Prohibiting any cover charge or entry fee for attendees. Some believe a rule of this nature will provide a stronger basis to defend the association if it were ever to be alleged that the nature of the events addressed by §4515 caused the common area facility to become a place of “public accommodation” such that the sometimes onerous facility requirements of the Americans with Disabilities Act (“ADA”) would apply to it. Any such prohibition should clearly differentiate a cover charge/entry fee from a voluntary political donation directly to a candidate or non-profit cause.
“Not Otherwise in Use” — Considering the facility “not otherwise in use” (and available for “No Charge” use) only if it has not been previously reserved/rented as of one week, 3 days or maybe even just 1 day prior to the requested time. This is a more aggressive interpretation, but it could be well justified in particular circumstances, particularly where “No Charge” use could potentially overrun the “For Pay” use when that revenue supports the operation of the facility.
No Related Equipment, Supplies or Services — Limiting “No Charge” use to the use of the common area space only, and not extending it to the related equipment, supplies or services (such as folding tables, folding chairs, kitchen/food service facilities, etc.). This is a more aggressive limitation, but could well be justified in particular circumstances where the providing of such additional equipment, supplies or services would require the Association to incur a hard cost to provide personnel, etc. which would otherwise need to be funded by the other, non-participating association members through their assessments.
No Alcohol — Prohibiting the service of alcohol, and potentially food, for those using the facility on a “No Charge” basis. This may be viewed as more aggressive. However, it could be well justified particularly where such activities would otherwise cause the association (and its other members) to cover the additional costs and potential liability incurred/suffered by the association in allowing that use.
Strongly Suggest Insurance — The reserving owner and/or resident will be responsible for any damage/liability arising as a result of the event. As such, it is clear that obtaining single event liability insurance would be a good idea. However, §4515 prohibits an association from requiring insurance in this context. HOWEVER, nothing prohibits the association from pointing out the potential liability and strongly suggesting that single event insurance be obtained.
The best strategies for associations will vary widely depending upon the specific circumstances of each and the extent of, and the manner in which they currently manage their common area space. Clearly, a new set of operating rules will serve some associations very well. However, for others, they might offer only very minimal added protection and actually cause otherwise unnecessary and avoidable disruptions and disputes. As such, we strongly recommend that before an association simply requests the drafting of a new policy (in response to industry solicitations, or otherwise), that it have a quick, but important, consultation with its legal counsel to evaluate the options and create a go-forward strategy that best suits its specific circumstances.
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