Dear Counselor: Don’t let your rights go up in smoke

I am a resident in a condominium complex.  The complex has a common area that is open for residents to reserve for various occasions (birthday parties, club meetings, etc.).  I have held a few small meetings in support of the statewide proposition to legalize recreational use of marijuana.  We pass out some literature and discuss how to advocate for the proposition.  Recently, I have received a request from the condominium association asking that I conduct my meetings someplace else.  Apparently, they have received complaints from some of the families in the complex.  I suspect that the “complaints” have more to do with a few members of the condo board’s disapproving of my point of view than anything else.  What are my rights here?

Your question deals with a condominium association’s ability to enact rules that restrict the exercise of constitutional rights to association and free speech in common areas.  Assuming that your meetings aren’t like a Willie Nelson or Grateful Dead concert, the association cannot impermissibly restrict your exercise of First Amendment rights.  Stand up for the First Amendment and don’t let your rights go up in smoke!

As a condominium owner, you are part of a “common interest development,” and your property rights – and the restrictions on them – are derived from the original developer who owned the land.  When the property was developed, the developer set forth certain conditions and restrictions that were to apply to each and every future property owner.  These are known as the conditions, covenants, and restrictions, the “CC&Rs,” which are usually located in a document recorded in the county’s real property records.  The restrictions are enforceable in a court by you, your neighbors, or the association.

Within the CC&Rs, you will likely find restrictions enacted on the use of the common area.  The restrictions found in the CC&Rs are presumed to be valid and reasonable.  Assuming that the association has the power to enact certain rules, there may be appropriate rules on the time, place, and manner of use of the common areas.  If you are violating the rules, the association has the right and the duty to the other tenants to demand that you stop the offending activity.  The association can even bring suit against you in court.

But the condominium owners’ association cannot apply its rules selectively where it approves of some gatherings and disapproves of others based on the content and message of a group’s speech.  For example, it can’t allow a gathering of old and tired lawyers and pharmaceutical lobbyists to set up a “No on Prop 61” table and then close the door to your “Yes on 64” group.  That’s a form of prohibited discrimination.

The condominium association, however, is under no affirmative duty to provide a space for the exercise of your rights.  So it can ban outright all such gatherings in the common area.  But again, it cannot pick and choose who stays and who goes.  If it allows one message, it has to allow all others – including the state propositions (like Proposition 60) and even the candidatesthat some may consider “for mature audiences only.”

You will need to closely examine the CC&Rs and other rules because this can be tricky.  For example, there may be certain restrictions on non-resident use.  If a number of the people coming to your meetings are non-residents, that may be the grounds that the association needs to put a stop to your meetings.

I can understand the slight paranoia about the association’s motives against you, but it may be that the association doesn’t really comprehend what it’s doing in telling you to have your gathering someplace else.  Perhaps a simple letter to the board explaining your constitutional rights under the law might turn them around.


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm specializing in family law, estate planning and trust litigation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at www.kopperlaw.com

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By | 2017-06-21T20:24:35+00:00 October 16th, 2016|Dear Counselor|0 Comments

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