During an election year, it's not unusual for community associations to grapple with issues related to the legality of displaying political signs. Yet, these are unusual times. The nation is experiencing a time of increased interest in political activism. Not long ago a video of dueling protesters at a political rally in a Florida community association went viral and made national news. That video made many homeowners and boards aware of the necessity of knowing what political activities are legal in their community association.
Misinterpretation of the First Amendment
Homeowners in community associations may incorrectly assume the First Amendment permits them to hold a political rally or display a political sign in their community or on their lawns. However, while the First Amendment prohibits the federal government from silencing speech among other things it does not necessarily apply to the agreements between private parties. Your community association and owners sign an agreement that may include language about lawn displays and uses of common area-spaces and even if it does not specifically address political displays the rules still apply.
From a legal perspective, a homeowner in a community association is a private citizen who has entered into a legal agreement with the HOA. The community association's governing documents control the relationship between the the owner and the association. Those governing documents determine whether political signs, flags, or rallies are permitted. Also, an HOA may use its bylaws to regulate political activity within it's common spaces. For instance, the bylaws may contain rules forbidding handwritten signs or limiting the height of flagpoles.
The Role of State and Local Law
There's a huge caveat to the general principle that governing documents regulate political activity within community associations that comes in the form of state and local laws. Although federal law does not currently restrict political speech in a private community association, state and local laws can address it. Much these state and local legislations limit the power of homeowners associations. HOA boards need to ensure their association's rules comply with both state and local law.
Florida and California are examples of how laws related to political activity within community associations can vary from state to state. Laws in California and Florida specify community associations must make their common areas available to homeowners for political events. Yet, the two states differ in the amount of freedom the HOA has to regulate political events. A Florida HOA may subject political events to the same rules as non-political events.*
In contrast, a California HOA cannot charge homeowners a fee to use to common areas for political activity even if the HOA typically charges for common area use. Also, in California, an HOA cannot prohibit homeowners from holding a peaceful political rally. State law does authorize community associations to place reasonable limits on when political events can be held. *
* The laws discussed in this blog are subject to change, do not represent legal advice and this article should not be used as a primary source of legal information. If you are interested in your state and local laws regarding any topic, please contact your association attorney to consult with someone licensed in your state to interpret these laws.
Implications for Homeowners
It's important for homeowners to check their association's governing documents before putting a political sign or flag on display. It could be legal for the HOA to prohibit political signs and flags where allowed by the state. Homeowners in your community may feel frustrated by these rules as they wish to display their affiliations but others may feel as if the displays constitute a nuisance or are unappealing to prospective buyers. Each association must consider the implications for all owners, and all political affiliations before making a ruling on the matter.
Even local and state laws that mandate the HOA must allow political signs and rallies frequently give the HOA the authority to regulate that political activity where it interferes with their authority.There also may be certain restrictions for the placement, size and type of sign or flag displayed. For instance, the law may allow the HOA to issue rules related to sign size or how long signs may be on display.
The Takeaway for HOA Boards
Board members have a responsibility beyond ensuring the association's rules on political activity comply with state and local law. Boards also have a duty to provide consistent enforcement of their rules. That may seem too obvious to mention, but it's easy for a board to slip into selective enforcement when it comes to political matters. Board members cannot "overlook" a political sign that far larger than allowed because they agree with the sign's message. Nor can board members insist an offensive sign come down if the sign complies with the association's governing documents.
It can be challenging for community association boards to understand their obligations and homeowner rights regarding political signs and rallies. Professional property management can bring clarity to these issues. Contact us to learn how GrandManors can assist your association.