Two new laws became effective on January 1st, 2018 that impact condo projects and other common interest developments (“CIDs”) and homeowners associations (“HOAs”) in California. The first expands homeowners’ free speech rights and limits an HOA’s ability to restrict political expression and related activities. The second limits the ability of an HOA to prevent a homeowner from installing a solar energy system (i.e., solar panels) in a CID.
Expansion of Assembly and Free Speech Rights
Senate Bill 407 added Civil Code Section 4515 to the Davis-Stirling Common Interest Development Act (“Act”), which is the primary state law governing CIDs. SB 407 was intended by its author to prevent HOAs from denying basic rights of political expression to its residents. Civil Code Section 4515 strengthens existing rights of homeowners in a CID to engage in non-commercial political expression and related activities within a CID community. Under the new law, a CID project’s governing documents cannot prohibit a homeowner from assembling peacefully or inviting public officials or candidates for public office. Further, the governing documents may not prevent homeowners from meeting with HOA members or guests in their home or in the project common area for meeting, and may not stop a homeowner from canvassing, petitioning or distributing information to other owners in the project, about matters of public concern or that relate to the subject project or its HOA. A homeowner also cannot be required to pay a fee, make a deposit, or obtain insurance in order to use the common area of the project. A homeowner who is prevented by an HOA from engaging in such activities may bring a civil or small claims action to enforce his/her rights. A court is authorized to assess a civil penalty of not more than $500 per violation.
Civil Code Section 4515 represents a fairly significant expansion of homeowners’ rights to engage in political activities related to the project and HOA, as well as issues of general public concern.
Homeowner’s Right to Install Solar Energy System
Assembly Bill 634 amended Sections 714.1 and 4600 of the Civil Code, and added Section 4746, to strengthen a homeowner’s right to install a solar energy system (solar panels) on a building, garage or carport roof in a CID. An HOA cannot establish a general policy prohibiting the installation or use of such solar energy systems, and cannot require the approval of the other HOA members. An HOA can adopt certain controls and requirements for a homeowner to install a solar energy system, and the HOA has the right to reasonably approve the system and its installation. A homeowner may be obligated to maintain, repair and replace building roofs and components affected or damaged by the system, and obtain liability insurance for any damage caused by the system. A homeowner must notify all other homeowners in the building in which the system will be installed. As each homeowner in the building also has the right to install a solar energy system, a single homeowner may only use his/her equitable allocation of such the roof area. This last requirement could effectively preclude installation of a system in condominium projects, especially large projects with many units or projects with minimal roof areas, as the roof area equitably allocated to a particular homeowner may not be practically large enough to install a usable system.
HOAs should adopt guidelines providing clear rules and procedures concerning installation and use of solar energy systems in their projects.
Authored by Reuben, Junius & Rose, LLP Attorney, Jay Drake
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full-service real estate law firm. We specialize in land use, development, and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision, and condominium work.