Epsten, APC

By Kieran J. Purcell, Esq.

As the 2020 political season gears up it is not uncommon to see political signs popping up in community associations which often leads to questions like: “Do homeowners have the right to display political signs?” “If so, where can they post political signs? “How soon after the election can we make them take down their signs?”  Chances are your association’s governing documents have a sign provision, and the city or county your association is located in likely has an ordinance governing political signs too.  However, the answers to these questions are found in your association’s governing documents and/or the California Civil Code.  Spoiler alert-you may not like the answers.

An Association May Prohibit an Owner From Posting Political Signs in the Common Area, But Not On or In Their Separate Interest Property. Generally, an association’s CC&Rs provide its board of directors has the sole and exclusive right manage and control the common area.  Some CC&Rs may also provide no signs may be erected or displayed in the common area without permission from the board. Or the CC&Rs may allow specific signs, e.g. one (1) sign of customary and reasonable dimensions offering a condominium for sale or lease.  If so, that means the board does not have to allow an owner to put political signs on the common area, right? And if an owner does place a political sign in the common area and refuses to timely remove it, the association can remove it, right? The answer to both questions is yes. Here’s why.

Civil Code section 4710 provides:

(a) The governing documents may not prohibit posting or displaying of noncommercial signs, posters, flags, or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.

(b) For purposes of this section, a noncommercial sign, poster, flag, or banner may be made of paper, cardboard, cloth, plastic, or fabric, and may be posted or displayed from the yard, window, door, balcony, or outside wall of the separate interest, 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.

(c) An association may prohibit noncommercial signs and posters that are more than nine square feet in size and noncommercial flags or banners that are more than 15 square feet in size.

Therefore, a homeowner may post political sign(s) not larger than nine (9) square feet, made of the statutorily permitted materials in or on his or her separate interest property, but Civil Code section 4710 does not grant a homeowner the right to post signs-political in nature or otherwise-in the common area.

How Long Can a Political Sign Be Displayed Before/After An Election?  While CC&Rs rarely contain similar provisions, it would be reasonable for an association to adopt a rule with similar time limitations for owners to post political signs within their association, right?  Maybe. Many cities and counties have ordinances establishing time limits for when political signs may be posted, e.g. ninety (90) days before, and ten (10) days, after an election.  Civil Code section 4710 allows an association to prohibit the posting or displaying of noncommercial signs on an owner’s separate interest if the posting or display would violate a local, state, or federal law. Consequently, an association may be able to adopt rules which mirror the same time limitations set out in local ordinances.

Okay, So We Have To Let Someone Post a Political Sign, But Just One Right?

Maybe.  Civil Code section 4710(a) says governing documents may not prohibit noncommercial signs, posters, flags or banners, plural.  Unless prohibiting the sign(s), etc. protects public health or safety or if the posting or display would violate a local, state, or federal law.  Some examples of this would be: (a) if an owner displayed so many flags close to the street it impaired drivers from seeing other cars, (b) the city requires a permit for a flag pole over a certain height and the owner has no permit, or (c) the city limits how many signs can be displayed at one time on private property.

By Kieran J. Purcell, Esq.

Typically, an association is charged with enforcing its governing documents.  Some aspects of pre- and post- wildfire related activities may be covered by an association’s CC&Rs or Rules (e.g., deadlines for reconstruction of damaged property or architectural approval) but many are not (e.g., the association’s ability to compel brush abatement on owner’s separate interest property).  Yet homeowners may look to the association, if not for actual enforcement activity, then for leadership in this issue.

Providing Voluntary Services

If an association is not required to provide pre-and post- wildfire services pursuant to its governing documents, then any services provided by an association are purely voluntary and with that comes risks.

Consider the 2018 O’Malley v. Hospitality Staffing Solutions case in which a hotel employee voluntarily undertook a welfare check at the request of a guest’s spouse.  The employee did not find the injured plaintiff during his welfare check, but she was found by her spouse sometime later.  The injured plaintiff sued the hotel alleging the employee’s welfare check was not thorough enough and had she been found earlier, she would have received more timely medical care and her injuries would have been less extensive.  The court in O’Malley held that if someone is giving aid to another, then the person providing the aid has to exercise due care.  If the person providing the aid fails to exercise due care and that failure increases the risk of harm to another or if harm is suffered because the other relied on that person’s aid, then the person providing the aid may be liable.

So, what’s the lesson to be learned from the O’Malley case?  If an association voluntarily renders services for the protection of others, it must exercise reasonable care in doing so or the association may be liable under a “negligent undertaking” theory of liability for its failure to exercise reasonable care.

Many homeowners assume their association will render some sort of relief or emergency services should a natural disaster occur.  Some associations even provide periodic reminders or create an “Emergency Preparedness Plan” or an “Emergency Preparedness Committee.”  If your association is going to provide such voluntary services, the association should: (1) clearly inform its residents of the services the Association will and will not voluntarily provide; (2) consult with an expert as to how the association can provide the best quality services possible; and (3) confer with its insurance expert to obtain insurance for any insurable risks.

Premise Liability

Negligence arises when an association, through its board of directors, knows or should know there is a risk of property damage, fails to take reasonable action to prevent such damage, and this failure proximately causes property damage.  The types of negligence asserted against associations are myriad and diverse.  Some of the more common varieties concern premises liability.

Could an association be held to the same standard of care as a landlord regarding premises liability?  In short, the answer is “yes.”  In Frances T. vs. Village Green Owners Ass’n, the California Supreme Court held that in certain instances an association has a duty to investigate criminal activity and take appropriate safety measures, just as a landlord would for his or her tenants.  The Court’s rationale for its holding in Frances T. is that, like a landlord, the association manages and controls the common area, so when a hazard is foreseeable the association has a duty to exercise due care for its resident’s safety in those areas that are under its control.  A court might impose a similar duty on your association if a wildfire is foreseeable because your community is located in high risk area for wildfires.  If your community is located within such an area, your association should consult with an expert as to the kinds of wildfire mitigation measures your association should implement as part of its common area maintenance and your association should implement them if it is able.

Breach of the Duty to Maintain

An association could be liable, even if it was not negligent, if it failed to adequately discharge its maintenance duties as required in its governing documents.  In Franklin v. Marie Antoinette Condominium Ass’n., a building component the association had a duty to maintain, pursuant to its CC&Rs, leaked resulting in property damage to an owner’s condominium.  The owner of the condominium sued the association for breach of the association’s duty to maintain and for negligence. The court in Franklin discussed how an association might be liable regardless of whether it acted negligently if the association had a duty under its CC&Rs and it breached that duty.

Good Samaritan Laws

Will an association be protected as a “Good Samaritan”?  California Health & Safety Code section 1799.102(b)(2) offers some protection to “Good Samaritans,” but under fairly narrow circumstances.  In relevant part it provides, “no person who, in good faith and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct.”  A careful reading of this language shows it may provide immunity to an individual, who renders emergency medical or nonmedical care at the scene of an emergency, but not an association as a corporate entity.

So, what’s an association to do?  A good place to start is by reviewing the association’s governing documents, for example:

Easement Rights

Generally, CC&Rs grant the association and owners nonexclusive easement rights of ingress and egress through the common area and separate interest property for specified purposes, e.g., maintenance the association or owner is obligated to perform under the CC&Rs.  However, do your association’s CC&Rs allow it to access an owner’s separate interest property to do brush abatement, clear debris, or other common pre/post-wildfire activities?  And if so, do the CC&Rs permit the association to impose an individual assessment to recover its costs if it performs these tasks after an owner fails to do so?  Does the association have the authority to: (a) barricade damaged common areas; (b) control or limit access over streets; (c) open gates to admit emergency vehicles; and (d) shut-off utility valves, cap leaks and repair non-common area lines?

Exculpatory Clauses

An exculpatory clause is a provision in an association’s CC&Rs which typically exonerates it from liability for certain types of damages.  California courts have accepted the validity of exculpatory clauses in CC&Rs, which exonerate an association from having to reimburse an owner for property damage caused by a failed component the association had a duty to maintain, when the failure was not due to the association’s negligence.  (See the Franklin v. Marie Antoinette case.)  If your association still has its original 1970’s era CC&Rs, it’s unlikely they will contain such an exculpatory clause.  However, if your CC&Rs were written or amended within the last 20 years or so they may contain an exculpatory clause, and if so, this may impact the association’s liability for property damage after a wildfire occurs.

Insurance Obligations

Most governing documents contain insurance provisions, but they can vary greatly from association to association, so it’s a good idea to consult with your association’s community management team, its insurance broker, and legal counsel to: (1) confirm that your association is meeting its existing insurance obligations and (2) determine if additional insurance coverage is a good idea (e.g., guaranteed replacement cost or anticipated emergency activities coverage).

Damage, Destruction and Partition

CC&Rs often contain provisions establishing the duties and responsibilities of owners in the event their separate interest property is damaged or destroyed by fire or another casualty.  It is common for these provisions to require owners to rebuild, repair, or reconstruct their separate interest property in a manner substantially similar to its condition/appearance prior to the casualty or as approved by the association within a specified period of time.  Is the specified time limit (sometimes as short as 30 days) adequate?  Consider the feasibility of the time limit not only from the stand point of a single property being damaged, but also following a conflagration like the 2007 Witch Creek fires, in which over 1,000 homes were destroyed.  What triggers the start of this time clock?  The date of the loss?  Or, something which sounds logical-like the date owner receives insurance proceeds-which may be difficult or impossible to accurately determine.

The above list of governing document provisions to consider is provided solely for the purposes of discussion and is not intended to be an all-encompassing list.  If your review of your governing documents identifies areas of concern, you may wish to consider working with your community management team and legal counsel to amend your governing documents.