HOA Lawyer Blog

Whose Yard is it Anyway? Part I: Homeowners’ Speech

Published on: March 31, 2025 | by Sarah Paas, Esq.

Part I: Can HOAs restrict homeowners’ speech?

For individuals residing in common interest developments, the constitutional right to free speech is not applicable. While many believe that they have a right to freely express themselves by posting signs, banners, flags, and religious symbols on their own properties, they may be surprised to learn that their HOAs and condominium associations are not bound by the free speech clauses contained within the federal and state constitutions. Though, in California, this does not mean that residents automatically lose their free speech rights when they move into their associations, because the Davis-Stirling Act safeguards many of the same rights that are enjoyed by citizens residing outside of common interest developments.

Constitutional Rights to Free Speech
Both the state and federal constitutions prohibit state actors (i.e., the government) from restricting free speech, but these constitutional protections do not generally apply to purely private actors, like HOAs and condominium associations. Throughout the years, numerous exceptions to this general rule have been made. In Marsh v. Alabama (1946) 326 U.S. 501, the United States Supreme Court held that a “company town,” even though privately organized, provided many services typically reserved to a city; therefore, the private town was bound to abide by the First Amendment. The California Supreme Court has gone even further to hold that the state constitution affords broader protections than the U.S. Constitution by protecting free speech rights on privately owned property when such property is freely and openly accessible to the public. (Golden Gateway Center v. Golden Gateway Tenants Association [2001] 26 Cal.4th 1013.) Despite these rulings, most common interest developments will continue to be viewed private actors that are not subject to the same constitutional restraints as the government, because they are private organizations that are not freely and openly accessible to the public.

Statutory Free Speech Safeguards
Regardless of whether the federal and state constitutional protections apply, the California legislature has enacted various statutes that prevent common interest developments from infringing on the free speech rights of their members. These state protections are consistent with our country’s “special respect for individual liberty in the home [which] has long been a part of this Nation’s culture and law…” (City of Ladue v. Gilleo [1994] 512 U.S. 43, 44.). These statutes vary depending on the type of speech at-issue:

(i) noncommercial speech;
(ii) commercial speech;
(iii) religious symbols;
(iv) display of U.S. flags;
(v) speech/assembly rights pertaining to HOA elections, public elections, legislation and/or living with HOAs

As such, the first step in analyzing whether an association may restrict and/or ban homeowners’ speech is to identify the category of speech involved. This is because different types of speech deserve different levels of protection under the law. We will discuss each category of speech (i.e. commercial, non-commercial, religious symbols, flags, etc.) and the associated protections, in more depth, in our blog articles to follow.

Before banning and/or restricting an individual from speaking, homeowners associations should always consult with their HOA attorney to ensure compliance with the pertinent laws.

(Another) Important Update! Court lifts Injunction; CTA Reporting Deadline now March 21, 2025

Published on: February 19, 2025 | by Dyanne Peters, Esq.

In the ever-continuing saga known as the Corporate Transparency Act (CTA), the District Court for the Eastern District of Texas recently lifted an injunction staying the enforcement of the CTA. (Smith, et al. v. U.S. Department of the Treasury, et al., (E.D. Tex., Feb. 17, 2025) 6:24-cv-00336.) This reversal follows the Supreme Court’s order in McHenry v. Texas Top Cop Shop, Inc., which overturned the decision of the 5th Circuit, affirming the District Court’s nationwide injunction blocking the enforcement of the CTA and its reporting requirements. ((2025) 604 U.S. ____, 2025 WL 272062 at 1; see also Texas Top Cop Shop, Inc. v. Garland (E.D. Tex., Dec. 5, 2024) 4:24-cv-00478-ALM.) This means that the reporting requirements for reporting companies, including most HOAs, are back in effect…for now.

In response, FinCEN issued a notice extending the reporting deadline. “[B]ecause the Department of the Treasury…recognizes that reporting companies may need additional time to comply with their BOI reporting obligations, FinCEN is generally extending the deadline 30 calendar days from February 19, 2025, for most companies.” (U.S. Department of Treasury, FinCEN Notice, FIN-2025-CTA1 (Feb. 18, 2025).) Accordingly, HOAs are required to complete and file its first beneficial ownership information report with FinCEN by no later than March 21, 2025.

HOAs should continue to monitor developments as even FinCEN contemplates the potential for “further modification” of the March 21st “deadline.” Legal counsel can be a resource in this regard and should be consulted concerning CTA compliance and reporting obligations.

5th Circuit Grants Stay, Corporate Transparency Act Deadline Remains January 1st

Published on: December 23, 2024 | by Matthew Plaxton, Esq. and Steven Tinnelly, Esq.

Update: Compliance is not currently required and the next hearing is scheduled for March 25, 2025.

In a dramatic turn of events, the United States Court of Appeals for the 5th Circuit has granted the government’s motion for a temporary stay of the District Court’s order enjoining enforcement of the Corporate Transparency Act (CTA). As a result, all applicable common interest developments in the state must file their beneficial ownership information reports with FinCEN by January 1st. The recent federal spending bill notably did not include the anticipated one-year extension to the filing deadline. Compliance is now urgent, as the CTA’s requirements remain fully enforceable under the revised timeline.

HOAs should monitor developments in this case and consult with their HOA legal counsel to stay informed of their CTA compliance and reporting obligations.

BREAKING NEWS! Federal Court Issues Nationwide Halt on the Corporate Transparency Act

Published on: December 4, 2024 | by Matthew Plaxton, Esq. and Steven Tinnelly, Esq.

The Corporate Transparency Act (“CTA”), enacted in December 2020, aims to increase corporate ownership transparency to combat money laundering, terrorism financing, and other illegal activities. The CTA requires many small businesses, classified as “reporting companies,” to submit beneficial ownership information (“BOI”) reports to the Financial Crimes Enforcement Network (“FinCEN”). This requirement extends to certain homeowners associations (“HOAs”) and involves disclosing personal details—such as names, addresses, and copies of driver’s licenses or passports—about individuals with “significant control” over the HOA (i.e., members of the HOA’s Board of Directors).

Not surprisingly, many reporting companies objected to the reporting requirements, citing government overreach and privacy concerns as the primary reasons for opposing the reporting requirements. These objections led the U.S. District Court for the Northern District of Alabama to grant the National Small Business Association’s request for a preliminary injunction, temporarily blocking enforcement of the Act. However, the court’s order was limited to the plaintiffs in that case and did not extend its protections to HOAs.

Encouraged by the District Court’s decision, the Community Associations Institute (“CAI”) filed a lawsuit in the U.S. District Court for the Eastern District of Virginia seeking a similar result for its member-HOAs. Such result would not be forthcoming, however, as the Judge in that case denied CAI’s motion for preliminary injunction. CAI has appealed that decision to the United States Court of Appeals for the Fourth Circuit.

Thinking all hope was lost, many HOAs started the process of filing BOI reports with FinCEN. But, in the eleventh hour, the United States District Court for the Eastern District of Texas issued a nationwide injunction blocking the enforcement of the CTA and its reporting requirements. (Texas Top Cop Shop, Inc. v. Garland (4:24-cv-00478-ALM).) This ruling applies to all entities previously required to submit BOI reports, including HOAs within the State of California.

Since this injunction was just issued on December 3, 2024, it is unclear whether the Government will appeal the Court’s decision. More information on this is to come…

HOAs should monitor developments in this case and consult with their HOA legal counsel to stay informed of their CTA compliance and reporting obligations.

AB 2114 Signed! Civil Engineers Now Permitted to Perform HOA Elevated Element Inspections

Published on: July 19, 2024 | by Steven J. Tinnelly, Esq.

*New Legislation

In 2015, a wooden balcony collapsed at the Library Gardens apartment complex located in the City of Berkeley, near the University of California, Berkeley campus. The balcony collapse killed six young adults and injured seven others, and investigations later revealed the balcony had decayed wooden joists caused by wood dry rot left untreated because of poor building maintenance.

In response, the California Legislature passed Senate Bill 326 (“SB 326”) which took effect January 1, 2020. SB 326 added new Civil Code section 5551 to require HOAs having three (3) or more multifamily dwelling units to conduct mandatory inspections for “exterior elevated elements,” such as decks, balconies, stairways and walkways, that are supported by wood or wood-based products. The inspections are intended to determine whether the exterior elevated elements and their associated waterproofing components are in a generally safe condition and performing in accordance with applicable standards. The inspections are required every nine (9) years, with the deadline for the first inspection rapidly approaching: January 1, 2025.

In its initial form, Section 5551 allowed only licensed structural engineers or architects to perform these inspections. Assembly Bill 2114 (“AB 2114“) was proposed to add licensed civil engineers to that list of permitted inspectors. According to the AB 2114’s author, “licensed civil engineers are allowed to practice structural engineering by virtue of that license as long as structural engineering is within the licensee’s area of expertise. Because the deadline for completing the first round of inspections of these elements is January 1, 2025, [AB 2114] has an urgency clause so that HOAs who still have yet to complete their inspections may take advantage of the expanded inspector list before the compliance deadline.”

AB 2114 was passed by the Legislature and approved by the Governor on July 15, 2024. It takes effect immediately as an urgency statute.

Condominium HOAs that have still not performed these inspections should take immediate action to get the ball rolling and ensure they comply with the January 1, 2025 deadline. We have already observed significant price increases for these inspections as the deadline draws closer, due to increasing demand. The same is true for construction costs in situations where the inspection reveals the need to perform immediate repairs due to safety concerns.

Knock, Knock,We’re Coming In… Collection and Enforcement Against Deceased Homeowners

Published on: January 24, 2024 | by Steven J. Tinnelly, Esq. and Carrie Heieck, Esq.

Last time we checked, the mortality rate was 100%. This means that owners of real property within homeowners associations (“HOA’s” or “Associations”) will inevitably pass away at some point. This leaves many questions for Boards and management about how to navigate issues surrounding the separate interest still titled in the name of the deceased.

Enforcement of Governing Documents Against Deceased Owners

For obvious reasons, dead owners usually do not maintain their properties in good condition and are often ineffective landlords if their separate interest is occupied by a tenant. Management and Boards may not even know that an owner has passed away such that they continue to send violation letters and fine these deceased owners to no avail.

If an owner is ignoring fines and other enforcement action combined with not paying monthly assessments or maintaining a property, it is wise to investigate whether the owner is still living. This is especially important because there is a one-year statute of limitation from the date of an owner’s death to pursue enforcement or collection-related action per Cal. Code Civ. Proc. § 366.2. This strict deadline applies even if the HOA had no knowledge the owner was deceased. Law firms can assist Associations with public records searches to detect an open probate or a death certificate.

Court Order or Consent Required to Enter Onto Property

Although many CC&Rs have provisions allowing an HOA and its agents to enter onto a property upon prior notice to cure certain compliance issues, it is recommended for the protection of the HOA and its vendors that a court order first be obtained before entering property without advance express consent. This is the case even if the HOA believes the property is unoccupied because California case law holds that a contractual right to self-help is not a defense to a claim for forcible entry. (Glass v. Najafi (2000) 78 Cal.App.4th 45, 48–49, 92; See also Daluiso v. Boone (1969) 71 Cal.2d 484, 493, “Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.”)

Collection Methods Against a Deceased Owner

Since unpaid regular and special assessments may attach to the property, the lien-related collection process is similar for living and deceased owners, except that with a deceased owner, you are dealing with the administrator or personal representative of the decedent’s estate instead of with the living owner.

If an Association wants to sue a deceased owner or make a claim against their estate for monies owed as a creditor, it must pursue these remedies against the deceased owner’s estate. Suing an estate of a decedent or making a claim for monies owed against them requires an open probate action in superior court. The problem is that sometimes, an owner passes away with no will or next of kin in which case a probate of the owner’s estate may not be opened.

In such cases, management may contact the public administrator of the county in which the decedent’s property is located and request that they open a probate. If the public administrator fails to do so or drags their feet, the HOA can open a probate action as a creditor to make sure the probate case is opened and the claim for monies owed is timely submitted.

Once a probate is open, a creditor has only four months from the date the executor or administrator is appointed to file a claim in probate. (Cal. Code Civ. Proc. § 377.40; Prob. Code §§9100 et seq.). An HOA should be mindful that the one-year limit to file a claim against a deceased owner is not extended by this four-month deadline.

Thankfully, an HOA’s ability to foreclose on a secured lien via the nonjudicial foreclosure process set forth in Cal. Civ. Code §§ 2924–2924h is not affected by the aforementioned one-year statute of limitations to seek money judgments, injunctive relief, and/or judicial foreclosure against a deceased person. This is because such debt is secured by the property and is not attached to the deceased person.

Evicting Tenants

Deceased owners can leave occupants behind who may not be compliant with the HOA’s governing documents or who may create nuisance conditions as is frequently the case with squatters. The law provides an owner with the standing to evict tenants via an unlawful detainer action. When the owner is deceased, the HOA can and should call the estate (through its administrator) to a hearing and fine it for violations of the occupants. The administrator of the estate has the authority to gain tenant compliance via eviction or otherwise. Fining the estate can be an effective way to gain the estate’s compliance. Some governing documents even have provisions assigning the standing to evict tenants who violate the governing documents to the HOA via an unlawful detainer action. These provisions usually allow the HOA to charge the owner (or their estate) for the fees and costs incurred to evict non-compliant tenants if the owner or their estate fails to act.

Biohazard Cleanup

It is a macabre reality that occupants can and do pass away in the property. If the occupant lived alone and had no close friends or family, it can be weeks until the death is discovered. An HOA may first learn about such an occurrence via a report of unpleasant odors or vectors emanating from the property. If a dead occupant is suspected, law enforcement should be called. Once the body has been transported by the coroner, the biological materials left behind can pose a risk to the health and safety of the community’s residents such that the Association may consider calling in a biohazard clean up vendor to handle the situation. Depending on the language in the governing documents, the cost of the cleanup may become a charge against the deceased owner’s estate provided the proper processes are followed pursuant to the HOA’s enforcement policy and the laws applicable to probate claims.

Collection and enforcement proceedings against deceased owners in California is a complex area of law such that HOA’s should contact their legal counsel to ensure proper compliance and to avoid missing important statutory deadlines.

AB 648 Signed! Virtual HOA Meetings

Published on: October 5, 2023 | by Steven J. Tinnelly, Esq.

*New Legislation

On September 22, 2023, Governor Newsom signed AB 648 into law to finally permit homeowners associations (“HOAs”) throughout California to conduct board meetings entirely be teleconference (aka “virtual meetings“). While existing law permits an HOA to conduct teleconference meetings, HOAs are still required to specify a “physical location” for the meeting at which members or directors may physically attend the meeting if they desired to do so. The only exceptions to this physical location requirement are if the meeting is held in solely in executive session, or if the meeting is held during a government declared state of emergency under Civil Code section 5450.

Effective January 1, 2024, AB 648 will add another exception to the physical location requirement by adding new Civil Code section 4926 to the Davis-Stirling Act. AB 648’s enactment is based upon the Legislature’s findings that:

“Virtual homeowner association meetings improve and enhance homeowner members’ ability to participate and comment on business-related matters of the association and their community” and “enable greater access for all members of the association.”

Under Section 4926, an HOA will be permitted to conduct its open board meetings entirely by teleconference (without a physical location), provided that all the following requirements are satisfied:

Notice Requirements – The notice for each meeting conducted under Section 4926 must include, in addition to other required content for meeting notices, all the following:

1. 1. Clear technical instructions on how to participate by teleconference;
  2. The telephone number and e-mail address of a person who can provide technical assistance with the teleconference process, both before and during the meeting; and
  3. A reminder that a member may request individual delivery of meeting notices, with instructions how to do so.

Equal Participation Requirement – Every director and member must have the same ability to participate in the meeting that would exist if the meeting were held in person.

Roll Call Vote Requirement –Any vote of the directors at a Section 4926 meeting must be conducted by a roll call vote.

Option to Participate by Telephone Requirement – Any vote of the directors at a Section 4926 meeting must be conducted by a roll call vote.

It is important to note that AB 648 did not have any impact on existing law governing HOA meetings at which ballots are counted and tabulated pursuant to Civil Code section 5120. If an HOA wants to conduct a ballot counting meeting via teleconference, it must still specify a physical location as discussed above.

AB 648’s passage is welcome news to HOA board members and industry professionals that appreciate the convenience and efficiencies of conducting board meetings entirely by teleconference, utilizing popular tools such as Zoom and Go2Meeting.

New ‘Community Association Update’ Newsletter – Issue 59

Published on: September 25, 2023 | by Steven J. Tinnelly, Esq.

New-Newsletter-Template-300x167 In case you missed it, Issue # 59 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

Email Discussions Between Board Members are not “Meetings”
Are Your HOA Volunteers Covered for Injuries?
What if Our HOA’s Insurance is Canceled Due to Risk of Wildfires?
Court Steps in to Force Recalled Board to Step Down

A link to the newsletter is here.

Need to be added to our mailing list? Click here to sign up. Links to previous editions of our newsletter can be found here.

Email Discussions Between HOA Board Members are not “Meetings”

Published on: September 18, 2023 | by Steven J. Tinnelly, Esq. and Ellie Ghahari

*New Case Law

The Open Meeting Act (“OMA”) contains various provisions regulating how the board of directors of a homeowners association (“HOA”) may meet and conduct business. One of the most common questions we receive pertains to whether email exchanges between board members on items of HOA business constitute a “board meeting” under the OMA, even if those emails are merely for discussion purposes without any vote (or “action”) being taken on the item.

Fortunately, we finally have an answer to this question from the California Court of Appeals via its ruling in LSNU #1, LLC v. Alta Del Mar Coastal Collection Community Association (“Alta Del Mar”) that will have a significant, immediate and beneficial impact on HOA governance throughout California. That answer is no. Email exchanges/communications between HOA board members that merely discuss items of HOA business are not within the statutory definition of a “board meeting” under the OMA and are therefore lawful.

In Alta Del Mar, the HOA board was discussing, over email, two items of business that are relatively routine for HOAs: whether to approve a homeowner’s landscaping plans and whether to fine another homeowner. The plaintiff homeowner in Alta Del Mar claimed that this email discussion was considered a board meeting and thus violated the OMA by not affording the homeowner notice and an opportunity to be heard.

The Court rejected this argument with reference to two central provisions of the OMA upon which the homeowner relied in making their argument: Civil Code section 4090 (defining what constitutes a “board meeting”) and Civil Code section 4910 (prohibiting a board from “acting” on items of business outside of a board meeting). The Court’s interpretation of these provisions is summarized below:

Email exchanges between board members are not a “gathering” of the board, and therefore do not constitute a “board meeting”.

“By sending e-mails to one another through cyberspace, often hours or days apart and from different homes and offices, the Association’s directors did not simultaneously gather in one location to transact board business, and therefore they did not conduct a “board meeting” within the meaning of [the OMA].”

The OMA prohibits the board from “acting on” items of business outside of a board meeting, not from “discussing” those items via email outside of a meeting.

“By discussing items of Association business in e-mails… the directors did nothing contrary to the purpose of the OMA, because they took no action on those items in the e-mails. Although the OMA prohibits the board from acting on items of Association business outside a board meeting…it does not prohibit the board from discussing the items outside a meeting.”

Many HOA boards find it difficult to reserve all discussion on items of HOA business solely for the board’s regularly scheduled meetings. This is due to a variety of common factors, such as the large amount of business that must be discussed/acted upon at any given meeting, the intervals at which regularly scheduled Board meetings typically take place (monthly), and the need to share information regarding unforeseen or exigent issues that may arise between Board meetings. The Court’s holding in Alta Del Mar now confirms the ability of an HOA’s board members to freely email with one another to discuss items of business facing their community. This will allow for HOA boards to be in a better position to take appropriate and timely action on those items during their actual meetings.

New Client: Marina Pacifica Homeowners Association

Published on: August 24, 2023 | by Steven J. Tinnelly, Esq.

Marina-Pacifica-300x149 It’s our privilege to welcome Marina Pacifica Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Located in the heart of the Long Beach Marina, Marina Pacifica is on 18 acres with over 550 units featuring 6 pools, 6 spas, 3 lagoons, a gym, clubhouse and 24/7 security. And it doesn’t end there – in addition, boat slips are located on site along with laundry facilities, underground parking garage and gated bridge access to shopping at the Marina Pacifica Mall, making this community one-of-a-kind!

Our HOA lawyers and staff look forward to working with Marina Pacifica’s Board and management team.

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