Membership Rights
Checklist
Right to Specified Documents
On request, the association must provide members the right to inspect and/or copy the documents listed in CC §5200 following the procedures in CC §5205-5240 (Chapter 6, Article 5 of the Act. Other portions of the Act contain requirements to provide other documents to members, or at least upon request.
Right to Inspect Documents and Membership List
Members are entitled to inspect and copy the names and addresses on the membership list for a proper purpose; minutes of the association, board and any committees having any board powers; and access to certain books and records and rules of the association. The reasonable alternative contemplated by Corp. Code §8330(c) may not be available in an association subject to the Davis-Stirling Act unless a member has opted not to have his or her name and address information shared with a member who requests a membership list as provided in CC §5220. [CC §§4365(c), 5200(a) & 5240(b); Corp. Code §§8330 et seq.]
Right to Opt Out of Sharing Member’s Name, Address, etc. with Other Members
As provided in CC §5220, members have a right to opt out of having their contact information disclosed to another member who requests it. For advice on what the association must to do for a member who opts out, and what the association may be required to do in response to a member’s request for the membership list when some members have opted out, consult with your attorneys. The scope of books and records has been significantly expanded, and the times for which they must be available vary. See the statute for details. [CC §5200 et seq.]
Right to Dispute Resolution
Members are entitled to demand Internal Dispute Resolution, and an association must accept. [CC §5900 et seq.] Members are also entitled to request Alternative Dispute Resolution. [CC §5925 et seq.]
Suit to Enforce Rights
Members may sue to enforce their rights concerning elections, voting, open meetings and granting exclusive use of common area as found in CC §§5100-5135 [CC §5145]
Right to Disciplinary Hearing
Members are entitled to have hearings regarding discipline and the member’s payment of assessments held in executive session. [CC §4935(b)] To avoid a circus-like atmosphere in a disciplinary hearing, we believe it is best to adopt a rule requiring all disciplinary hearings to be held in executive session and to exclude all witnesses, other than the parties, except for the time they testify.
Right to Notice before and after Disciplinary Hearing
Members are entitled to at least 10 days’ prior notice of any hearing held to impose any proposed discipline unless the Association’s governing documents require a longer notice period. The hearing must be held at least 5 days before the effective date of the discipline [CC §5855; Corp. Code §7341]. CC §5855 is consistent with Corp. Code §7341 on the timing of the hearing, but it requires the notice to contain the date, time, and place of the hearing, the nature of the alleged violation and a statement that the member has a right to attend and address the board at the meeting. It also requires that the association must give a member written notice of any disciplinary action, either by personal delivery or “individual delivery” as provided in CC §4040 within 15 days after the “action,” i.e., presumably the decision to impose any discipline. Also, since Corp. Code §7341 states that the discipline cannot be effective until at least 5 days after the hearing, that timing presumably applies even if the notice is sent immediately after the hearing. The discipline is ineffective if the Board fails to comply with the CC §5855 requirements. [CC §5855(d)]
Right to Speak at Meetings
Members have a limited right to speak at board and membership meetings. [CC §4925(b)]
Right to Minutes
Members are entitled to copies of minutes, except executive board meeting minutes, within 30 days after the meeting upon request and payment of a reasonable cost. [CC §4950; Corp. Code §§8330 et seq.]
Right to Call Member Meetings
Special membership meetings may be called by 5% or more of the members, but the date must be set and notice sent by the board, within 20 days after receipt of a meeting request, and the board must set the meeting date for 35 to 90 days after receipt. [Corp. Code §§7510 & 7511]
Right to Delinquency Details
All owners are entitled to detailed information regarding the delinquency by certified mail before a lien is filed, and to a copy of the lien mailed as required by CC §2924b within 10 days after a lien is filed. The association may not foreclose on a lien until the principal amount is at least $1,800 or a year old. The procedures prior to foreclosing are very detailed and complex. They require reference to the full statute. [CC §5650 et seq. & §5700et seq., especially. §5705] The association may use nonjudicial foreclose to enforce a lien representing a penalty assessed to repair common areas damaged by a member or the member’s tenants or guests, but not for other types of monetary penalties. All costs and attorney’s fees for preparing, filing and mailing the lien may not exceed $425. Specific provisions apply to owner requests for payment plans, time limits for releasing liens after payment, and other aspects of the assessment collection process. (NOTE: A lien is not a prerequisite for filing a lawsuit, nor does a lawsuit for money “enforce” a lien.) [CC §5650 et seq., §5700 et seq.& §2924b] If an association forecloses on a lien, there is a right of redemption for 90 days after the sale. [CCP §729.035.] If a lien is recorded in error, there can be significant economic costs and delays to an association to correct the error. [CC §5685(c)]
Small Claims Actions
Owners may sue an association for amounts up to $10,000, but associations may sue only for amounts up to $5,000. [CCP §§116.220 & 116.221]. Moreover, no person, including an association, may file more than two small claims actions in which the amount demanded exceeds $2,500, anywhere in the state of California in any calendar year. [CCP §116.231] Any small claims case to collect a debt must contain a detailed accounting of the original debt, all additional fees and charges, all credits and debits and an explanation of such fees, charges, debits, and credits. [CCP §116.222] The association may now appear in a small claims case through an agent, management company representative, or bookkeeper. [CCP §116.540] An authorization to appear, signed under penalty of perjury by the individual appearing on behalf of the association, must be submitted to the court prior to or at the time of the small claims hearing. [CCP §116.540(j)] Consult with legal counsel for assistance in preparing the necessary authorization.
Right to Keep a Pet
After January 1, 2001, any association that amends any governing document, including rules, must allow an owner to keep at least one “pet” which means any domesticated bird, cat, dog, aquatic animal kept within an aquarium. [CC §4715]
Right to Display Political, Real Estate and Non-Commercial Signs and U.S. Flag
The governing documents may not limit or prohibit the display of the United States flag on or in the owner’s separate interest or exclusive use common area, except as needed to protect public health or safety. [Govt. Code §434.5; 4 U.S.C. §5] Real estate signs must be allowed. [CC §§712 & 713] Certain non-commercial signs are permissible in CIDs [CC §4710]. Political signs expressly are permitted in mobile home subdivisions. [CC §799.10] See each statute for specific requirements and limitations.
Right to Market Property
Any rule that arbitrarily or unreasonably restricts an owner’s ability to market his or her property in an association is void, including a fee that exceeds the association’s actual costs or that establishes an exclusive relationship with a broker. [CC §4730]
Right to Notice of Rule Changes
The Board must notify members of many types of rules changes. [CC §§4350-4360] Members also may call for a special meeting to reverse a rule change. Detailed procedures are contained in the statute. [CC §4365]
Right to Install Fire-Retardant Roof
Associations may not require owners to install roofs that would violate H&S Code §13132.7. [CC §4720]
Assessments Exempt from Judgment Creditors
Assessments collected by an association are exempt from attachment by judgment creditors, but only to the extent necessary for the association to perform essential services, such as paying for utilities and insurance. [CC §5620]
Right to Install Electric Vehicle Charging Stations and Time of Use Meters
Charging stations and time of use meters must be allowed, subject to reasonable restrictions. [CC §§4745-4745.1]
Right to Lease Property
After January 1, 2012, an owner may not be subject to a governing document restriction that prohibits leasing to a tenant unless that provision was effective before the date the owner took title to the property in question unless the owner agrees to be bound by the prohibition. [CC §4740].
Right to Display Real Estate Signs
CC&Rs or other governing documents that effectively prohibit or restrict the use of signs to advertise a property for sale, lease or exchange are void. However, reasonable restrictions may be imposed that comply with statutory requirements. See the statutes for details. [CC §§714 & 714.1]
Right to Install Solar Energy Systems
Associations may not establish a general policy prohibiting the installation of use of a rooftop solar energy system for household purposes on the roof of the building in which an owner resides or a garage or carport adjacent to the building that has been assigned to an owner for his/her exclusive use. See statute for details. [CC §§714 & 714.1]
Right to Protect Solar Panels from Shade
Under the Solar Shade Control Act, once solar panels have been installed, an owner of a nearby property may not allow vegetation to grow in a way that casts a shadow greater than 10 percent of the collector’s absorption surface area between 10 a.m. and 2 p.m. standard time. [Pub. Resources Code §§25980-95986]. Also see solar easement protections [CC §801.5].
Right for Some Residential Care Facilities to be Exempt from Recorded Covenants Prohibiting Business Uses
As a matter of state and federal public policy, there are various types of residential care facilities that will or must be treated as residential uses of property. While an association may contend that the use violates a CC&R prohibition against any business use, statues and court decisions have ruled otherwise. Attempts to enforce covenants that would prohibit group homes for persons with disabilities is considered a violation of the federal Fair Housing Amendments Act (42 U.S.C. §3604(f)(1). Several California statutes expressly hold that certain types of group homes are considered residential uses of property despite CC&R prohibitions against business uses. Covenants that would prohibit family day care homes for children permitted by the law are declared to be void (H&S Code §1597.40). “Residential facilities” for six or fewer persons under the Community Care Facilities Act that provide 24-hour nonmedical care to adults or children “in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual in an assisted living environment” are encouraged (H&S Code §1502). Residential facilities are also considered residential use of property even if a recorded covenant may provide otherwise (H&S Code §§1566.3 & 1566.5).
