California Homeowners Associations (HOA)and Flag Flying Laws & LegislationCommunity Associations and Homeowners Associations (commonly called HOA) agreements with their residents might infringe upon Constitutional rights of their membership. In particular, the First Amendment Freedom of Speech may clash with prohibitions placed on association members' abilities to fly flags, hang flags, place signs, and even hand out flyers.
Below find what we hope is the latest legislative action taking place in California.
AB 1525 Assembly Bill - Bill Analysis
SENATE HOUSING & COMMUNITY DEVELOPMENT COMMITTEE
Senator Denise Moreno Ducheny, Chair
Bill No: AB 1525 Hearing:June
30, 2003
Author: LongvilleFiscal: No
Version: As proposed to be
amended Consultant: Mark
Stivers
NON-COMMERCIAL SIGNS IN COMMON INTEREST DEVELOPMENTS
Background and Existing Law :
A common-interest development (CID) is a form of real
estate where each homeowner has an exclusive interest in a
unit or lot and a shared or undivided interest in common
area property. Condominiums, planned unit developments,
stock cooperatives, and community apartments all fall under
the umbrella of common interest developments. There were
an estimated 6 million residents living in approximately
30,000 CID's in California. In addition to the
requirements of the Davis-Stirling Act, each CID is
governed by a homeowners' association according to the
recorded declarations, bylaws, and operating rules of the
association.
In general, homeowners' associations have wide discretion
to regulate the appearance of individual interests and the
conduct of its members. However, over the years a number
of statutes have been enacted to prohibit various forms of
regulation. Last year, legislation was enacted that bars a
homeowners' association from prohibiting or limiting an
owner's ability to display the American flag.
Proposed Law :
Assembly Bill 1525 provides that the governing documents of
a CID may not prohibit the posting or display of
noncommercial signs, posters, banners or flags on or in an
owner's separate interest unless necessary to protect
public health or safety or because the posting violates
local, state or federal law.
AB 1525
Page 2
The bill specifies that displays may be made of paper,
cardboard, cloth, plastic or fabric, and posted or
displayed from the yard, window, balcony or outside wall of
the separate interest. Displays but may not be made of
lights, roofing, siding, paving materials, flora, or
balloons, or any other similar building, landscaping, or
decorative component or include the painting of
architectural surfaces. The bill also allows associations
to impose reasonable size restrictions prohibiting signs or
posters of more than 9 square feet in size, and flags or
banners of more than 15 square feet in size.
The bill awards attorney fees to homeowners who prevail in
actions to enforce this section and declares that this
prohibition is declaratory of existing law.
Comments :
1. Purpose of the bill . According to the author, the goal
of this bill is to ensure that the free speech rights that
are enjoyed by homeowners outside of common interest
developments are equally protected for the homeowners
within a development. With more and more homeowners living
within CIDs, it is essential that associations not abridge
a homeowner's right to free speech on or in his or her own
separate interest.
2. Unreasonable restrictions . Under current state law,
the declarations of an association are enforceable as
equitable servitudes "unless unreasonable." In Nahrstedt
v. Lakeside Village Condominium Assoc., Inc ., 8 Cal. 4th
361 (1994), the California Supreme Court opined that the
"unless unreasonable" standard means that "restrictions
should be enforced unless they are wholly arbitrary,
violate a public policy, or impose a burden on the use of
affected land that far outweighs any benefit." The right
to free expression of noncommercial speech has long been
granted under constitutional law. As a result, while no
statute explicitly says so, outright prohibitions by a
homeowners' association of noncommercial speech are most
likely already unenforceable. This bill simply makes it
explicit and builds on the protections for the display of
American flags written into law last year.
AB 1525
Page 3
3. Reasonable restrictions . Since this bill was heard in
committee on June 16, the author has amended the bill to
provide for a variety of reasonable restrictions related to
materials, size, and placement. With respect to size, the
bill allows but does not require an association to regulate
or prohibit signs and posters over 9 square feet and flags
and banners over 15 square feet.
4. Double referral . AB 1525 has been assigned by the
Rules Committee to this committee and the Judiciary
Committee. If approved, this bill must be re-referred to
the Judiciary Committee.
Previous actions :
Assembly Floor:
57-12
Assembly Judiciary:
8-3
Assembly Housing and Community Development:
8-0
Support and Opposition : (6/25/03)
Support : American Civil Liberties Union (sponsor)
Congress of California Seniors
Gray Panthers California
Older Women's League of California
Opposition : California Federation of Republican Women
Community Associations Institute, unless amended
Executive Council of Homeowners, unless amended
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