Bill Text: CA AB1410 | 2021-2022 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Common interest developments.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2022-09-30 - Chaptered by Secretary of State - Chapter 858, Statutes of 2022. [AB1410 Detail]

Download: California-2021-AB1410-Amended.html

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Amended  IN  Senate  June 30, 2022

Amended  IN  Senate  June 06, 2022

Amended  IN  Senate  May 17, 2022

Amended  IN  Assembly  January 14, 2022

Amended  IN  Assembly  January 03, 2022

Amended  IN  Assembly  April 05, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 1410

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Introduced by Assembly Member Rodriguez

February 19, 2021

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An act to amend Section 4515 of, and to add Sections 4739, 5101, 5875, and 5880 to, the Civil Code, relating to common interest developments.

LEGISLATIVE COUNSEL'S DIGEST

AB 1410, as amended, Rodriguez. Associations: declared emergency: protected uses: regulation. Common interest developments.

Existing law, the Davis-Stirling Common Interest Development Act, regulates common interest developments and associations, as defined. Existing law also regulates governing documents, as defined, and protects certain uses of a homeowner’s separate property. That law, among other things, prohibits an association from restricting specified rights of a homeowner. These rights include the right to peacefully assemble, to invite public officials or other speakers to discuss matters of public interest, distributing to distribute literature related to common interest development living, and a homeowner’s right to rent or lease a separate interest unless the governing document or amendment that restricts a homeowner’s right to rent or lease their separate interest existed prior to the homeowner acquiring title to the separate interest.

This bill would prohibit the governing documents from restricting a homeowner’s right to use prohibiting a member or resident of a common interest development from using social media or other online resources to discuss specified issues even if the discussions are content is critical of the association or its governance, including, among other issues, development living and association elections. The bill would authorize an association to moderate online content posted to an online resource by association members in certain circumstances, subject to meeting all of specified requirements relating to the posting of that online content. The bill would additionally prohibit an association from retaliating against a member or a resident for exercising certain rights, including the right to peacefully assemble or to use social media or other online resources to discuss certain issues.

The bill would also prohibit the governing documents from restricting a homeowner’s right to rent or lease

Under this bill, an owner of a separate interest in a common interest development would not be subject to a provision in a governing document that prohibits the rental or leasing of a portion of the homeowner occupied separate interest for more than 30 days, without regard to whether such restriction existed at the time the homeowner acquired title to the separate interest.

Existing law regulates the election and necessary qualifications for a member to serve as a director of an association.

This bill would require any person serving as a director or employee of an association, upon election or employment, to be provided with a code of conduct that includes specified information, including what constitutes a conflict of interest, and what constitutes harassment, discrimination, and retaliation. The bill would require directors and employees to attest, in writing, within 30 days of being elected or hired, that they have read and understood the code of conduct, and would require a copy of the code of conduct and signed attestation to be retained by the association for 2 years following the expiration of the term or employee separation.

Existing law authorizes associations to establish penalties for violation of the governing documents, and regulates how an association may enforce such penalties.

This bill would prohibit an association from taking any enforcement actions for the violation of governing documents during a declared emergency, as specified. This specified, if the emergency makes it unsafe or impossible for the homeowner to either prevent or fix the violation. The bill would also require, if require an association that seeks to impose a monetary penalty for a violation of the governing documents, documents to make any physical evidence used in determining a violation be made available the violation available, as specified, to the member accused of violating the governing documents. This The bill would require that any photographs used to the association intends to rely on to determine a violation of the governing documents has occurred contain either a time and date stamp, or be made available, along with the photographs’ digital metadata, as defined, that clearly states the time and date the photograph was taken. to the member.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 The Legislature finds and declares all of the following:

(a) During an unprecedented pandemic and resulting economic crisis, homeowners have struggled in a variety of ways to maintain their homes.

(b) It is in the interest of homeowners that special protections be put in place against enforcement actions and fines by an association in times of emergency.

(c) It is counter to the interest of the state, its residents, and its housing and homelessness policy to prohibit homeowners from inviting a tenant into their home.

(d) It is in the best interest of the state to ensure those with fiduciary responsibilities with regards to homeowners receive appropriate training.

SEC. 2.

 Section 4515 of the Civil Code is amended to read:

4515.

 (a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.

(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:

(1) Peacefully assembling or meeting with members, residents, and their invitees or guests during reasonable hours and in a reasonable manner for purposes relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes.

(2) Inviting public officials, candidates for public office, or representatives of homeowner organizations to meet with members, residents, and their invitees or guests and speak on matters of public interest.

(3) Using the common area, including the community or recreation hall or clubhouse, or, with the consent of the member, the area of a separate interest, for an assembly or meeting described in paragraph (1) or (2) when that facility or separate interest is not otherwise in use.

(4) Canvassing and petitioning the members, the association board, and residents for the activities described in paragraphs (1) and (2) at reasonable hours and in a reasonable manner.

(5) Distributing or circulating, without prior permission, information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner.

(6) (A) Using social media or other online resources to discuss any of the following, even if the content is critical of the association or its governance:

(i) Development living.

(ii) Association elections.

(iii) Legislation.

(iv) Election to public office.

(v) The initiative, referendum, or recall processes.

(vi) Any other issues of concern to members and residents.

(B) This paragraph does not require an association to provide social media or other online resources to members.

(C) This paragraph does not require an association to allow members to post content to online resources owned or controlled by the association unless subparagraph (D) applies. on the association’s internet website.

(D)Notwithstanding subparagraph (A), if an association allows members other than a member or entity designated by the board for that purpose to post content to an online resource created, administered, edited, moderated, owned, or controlled by the association, then the association may moderate the content by prohibiting, rejecting, redacting, or removing content posted by members to that online resource provided that the association meets all of the following requirements:

(i)The association permits all members to post content to the online resource, except when a member has been suspended or expelled from use of the online resource for continuing to violate the association’s content moderation rules after being asked to stop.

(ii)The association’s rules for content moderation, if any, are provided to members upon initial use of the online resource and are accessible at any time through the online resource or disclosed to the members as part of an association’s annual policy statement prepared pursuant to Section 5310.

(iii)The association’s rules for content moderation are neutral as to any viewpoint expressed even if the content is critical of the association or its governance.

(iv)The prohibition, rejection, redaction, or removal of the member’s content complies with the association’s rules.

(v)The association provides a mechanism for appeal of the prohibition, rejection, redaction, or removal of content from the online resource or the suspension or expulsion of a member from the use of the online resource pursuant to clause (i). The mechanism for appeal may be the same as the mechanism for internal dispute resolution pursuant to Sections 5900 to 5920, inclusive.

(E)Notwithstanding subparagraph (A), an association may take action to prohibit, reject, redact, or remove any content, or discipline the posting of content, if that content violates state or federal law.

(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area for the activities described in paragraphs (1), (2), and (3) of subdivision (b).

(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.

(e) An association shall not retaliate against a member or a resident for exercising any of the rights contained in this section.

SEC. 3.

 Section 4739 is added to the Civil Code, to read:

4739.

 (a) Notwithstanding Section 4740, an owner of a separate interest in a common interest development shall not be subject to a provision in a governing document, or amendments thereto, that prohibit prohibits the rental or leasing of a portion of the homeowner occupied separate interest in that common interest development to a renter, lessee, or tenant for a period of more than 30 days.

(b) Nothing in this section shall permit an owner of a separate interest or a resident renting or leasing a portion of the owner-occupied separate interest to violate any association bylaws and operating rules governing documents that govern conduct in common areas, including, but not limited to, parking restrictions, guest access to common facilities, and voting eligibility requirements.

SEC. 4.Section 5101 is added to the Civil Code, to read:

5101.

(a)Any person serving as a director or employee of an association, upon election or employment, shall be provided with a code of conduct that includes all of the following:

(1)What constitutes a conflict of interest and when a director must recuse themselves from voting and any discussion and decisionmaking process due to a conflict.

(2)That directors and employees must maintain the confidentiality of homeowners regarding investigatory and disciplinary matters.

(3)What, by law, constitutes harassment, discrimination, and retaliation pursuant to the California Fair Employment and Housing Act (Chapter 7 (commencing with Section 12960) of Part 2.8 of Division 3 of Title 2 of the Government Code,) and information explaining that if violation of the preceding law occurs, not only is the association liable, but the individual board member or staff, as well. This portion shall contain the statutory definition of discrimination and harassment and who is protected by these laws.

(4)The fiduciary ethics and responsibility to the common interest development and its homeowners in order to prevent fraud and embezzlement.

(5)The requirement to allow community members to voice their opinions on association matters.

(6)The requirement to hold open, honest, and fair elections.

Directors and employees of an association shall attest, in writing within 30 days of being elected or hired, that they have read and understood the code of conduct. A copy of the code of conduct and signed attestation shall be retained by the association until two years following the expiration of the term or employee separation.

SEC. 5.SEC. 4.

 Section 5875 is added to the Civil Code, to read:

5875.

 An association shall not pursue any enforcement actions for violations a violation of the governing documents during a declared state or local emergency if the nature of the emergency giving rise to the declaration makes it unsafe or impossible for the homeowner to either prevent or fix the violation.

SEC. 6.SEC. 5.

 Section 5880 is added to the Civil Code, to read:

5880.

 (a) If an association seeks to impose a monetary penalty against a member for violation of the governing documents, the association shall shall, if requested at least 10 business days before the hearing or the deadline for the member’s response, make any physical evidence used to determine a violation of the governing documents has occurred, including, but not limited to, photographs or video or audio recordings, available to the member. member at least five business days before the hearing or the deadline for the member’s response.

(b) (1) Any If the association intends to rely on any photographs used in determining a violation of the governing documents has occurred shall have a visible time and date stamp or shall be accompanied by digital metadata clearly stating the time and date the photograph was taken. occurred, then the association shall make any digital metadata associated with the photograph available to the member together with the image.

(2) For purposes of this subdivision, “metadata” means data bearing the record of, and not the content of, a digital photograph, including, but not limited to, the time, date, and location of the image.

SEC. 7.SEC. 6.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.