LEGAL CORNER: Do HOA rules prohibiting political signs violate 1st Amendment rights?

KPLC 7News at Noon - Sept. 18, 2019 - Pt. II - clipped version

LAKE CHARLES, La. (KPLC) - Submit your questions to Civil matters only, please.

Question 1: My Dad was in an LLC with other people. He died unexpectedly. He had no will. I’m his only heir, so I inherited everything that he owned. But, the other members of the LLC are not allowing me to see the LLC’s business records. They say I’m not entitled to them because I am not a “member” of the LLC. Did I not inherit my dad’s “membership?”

Answer: Under Louisiana’s LLC inheritance laws, the short answer is probably not. Unless the LLC’s written operating agreement or articles of formation say otherwise, then a deceased member’s heir is a mere “assignee” and not a full-fledged member (see Louisiana Revised Statute 12:1333). This is another reason why LLC formations, operating agreements, and the like need to be drafted and thought through with the advice of an experienced lawyer.

Louisiana Revised Statute §1332. Right of assignee to become a member

A. Except as otherwise provided in the articles of organization or a written operating agreement:

(1) An assignee of an interest in a limited liability company shall not become a member or participate in the management of the limited liability company unless the other members unanimously consent in writing.

(2) Until the assignee of an interest in a limited liability company becomes a member, the assignor shall continue to be a member.

B. An assignee who becomes a member has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a member under the articles of organization, any operating agreement, and this Chapter. Except as otherwise provided in the articles of organization or a written operating agreement, an assignee who becomes a member also shall be liable for any obligations of his assignor to make contributions under R.S. 12:1322 and to return under R.S. 12:1328(A) distributions received in violation of R.S. 12:1327. However, the assignee shall not be obligated for liabilities unknown to the assignee at the time that he became a member.

C. Whether or not an assignee of a membership interest becomes a member, the assignor shall not be released from his liability to the limited liability company under R.S. 12:1322 and 1328.

Question 2: Do Home Owner Association rules violate property owner 1st Amendment rights, Freedom of Expression by forbidding the owners from erecting political signs which endorse a candidate on their property.

Answer: Parties whom contract to purchase homes in communities maintained by the Home Owners Association are obligated in accordance with the terms of that contract, to abide by them. The terms within the four corners of the contract is what matters and as long as those terms are not contrary to controlling law or public policy, my friend you are obligated to abide by them. Importantly, individuals who voluntarily move into a community maintained by the Home Owners Association that prohibits erecting political signs in Louisiana are not forced to live there. As such, it’s not a constitutional issue. See Cashio v. Shoriak, a Louisiana Supreme Court case which comports with that notion. Apart from the rules of interpretation, documents establishing building restrictions are subject to the general plan of Louisiana Civil Code governing the interpretation of juridical acts. Interpretation of a contract is the determination of the common intent of the parties.

See the below Louisiana Civil Code Articles:

La. Civ. Code Art. 775-783 Building Restrictions.

La. Civ. Code Art. 2045-2046 Rules of Interpretation (obligations & contracts).

Question 3: My landlord will not fix my air conditioner. I have asked several times. He keeps saying that he is going to fix it, but he never does. I have a sick child. I don’t want to move, or be evicted, but I want need the AC to work. What can I do?

Answer: I would make a request in writing to the landlord to fix the air conditioner. I would give him a reasonable amount of time to repair the A.C. If landlord fails to do so, you may repair or have someone repair it at a reasonable cost. You may reduce the amount of rent for the extent you paid in repairing the A.C. or demand reimbursement. You may want to hire an attorney.

See the below Louisiana Civil Code Articles on Lessor’s Obligations.

Louisiana Civil Code Art. 2691. Lessor's obligation for repairs

During the lease, the lessor is bound to make all repairs that become necessary to maintain the thing in a condition suitable for the purpose for which it was leased, except those for which the lessee is responsible.

Copyright 2019 KPLC. All rights reserved.