The privileges that an association’s members have to use and enjoy the association’s common area facilities (i.e., pool, clubhouse, recreational facilities, etc.) are not absolute; they are subject to reasonable rules and regulations (“operating rules”) adopted by the association that govern the use of those areas. (Civ. Code § 4355(a); Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600).) If an association adopts and publishes a disciplinary policy (i.e., a “fine policy“) for violations of the association’s governing documents, and that policy also includes the suspension of a member’s privileges as a potential disciplinary measure, the association typically has the authority to suspend a member’s privileges while the violation remains uncorrected. Suspending a member’s privileges while the member is delinquent in assessments may also be incorporated into the association’s collection policy. However, the authority for an association to suspend privileges for assessment delinquencies or other governing document violations is not explicitly provided for in the Davis-Stirling Act and will therefore be dictated by the provisions of the association’s governing documents.
- Access to Separate Interest – An association may not deny a member physical access to the member’s separate interest (to the member’s unit or lot), either by restricting access through the common area to the separate interest, or by restricting access solely to the separate interest. (Civ. Code § 4510; See also “Rights of Access to Separate Interest.”)
- Utility Services – The California Supreme Court has analogized associations to “landlords” in certain respects. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) Landlords may not “willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” (Civ. Code § 789.3(a).) An association may therefore be prohibited from suspending or “shutting off” a member’s utility services for a violation, though no case law or statutes explicitly address this issue.
- Attendance of Board Meetings – Civil Code Section 4925 grants any member the right to attend board meetings (except executive session meetings), and to address the board during open forum. (Civ. Code § 4925; See also “Board Meeting Attendance Rights” and “Open Forum.”)
Suspension of Voting Rights
Provisions of an association’s bylaws may provide for the manner in which the association may suspend a member’s voting rights, consistent with the procedural requirements set forth in Corporations Code Section 7341. (Corp. Code § 7151(d); See also “Suspension of Voting Rights.”)
Civil Code Section 5855 contains procedural requirements that must be satisfied before a disciplinary measure imposed upon a member becomes effective. Those requirements include:
- Notice and Meeting (Hearing) – When the board intends to impose discipline in the form of a fine, the board must provide the member with individual notice of the meeting (hearing) where the board is to consider imposing discipline at least ten (10) days prior to the meeting. (Civ. Code § 5855(a).) However, when the discipline will involve suspension of the member’s privileges, Corporations Code Section 7341 requires at least fifteen (15) days advance notice of the meeting. (Corp. Code § 7341(c)(2).) The notice must contain, “at a minimum, the date, time and place of the meeting, the nature of the alleged violation for which a member may be disciplined…and a statement that the member has a right to attend and may address the board at the meeting.” (Civ. Code § 5855(b).) The board must meet with the member in executive session if requested by the member. (Civ. Code § 5855(b).)
- Notice of Decision – If the board imposes discipline, the board must, within fifteen (15) days following the action, “provide the member with a written notification of the decision, by either personal delivery or individual delivery pursuant to Section 4040.” (Civ. Code § 5855(c).)
For more information on these procedural requirements, see “Notice & Hearing Requirements.”
Related Case Law
- Liebler v. Point Loma Tennis Club
(1995) 40 Cal.App.4th 1600
[Operating Rules; Non-Resident Use] A HOA may create and enforce a rule excluding non-resident owners from use of the HOA’s common area recreational facilities.
- Frances T. v. Village Green Owners Association
(1986) 42 Cal.3d 490
[Board of Directors; Fiduciary Duties] Directors may be required to exercise reasonable care in protecting persons from criminal activity.