HOA and Political Presidential Sign

[damon_norris]

What is the name of your state (only U.S. law)? Florida (Escambia County)

The home owners association in my neighborhood sent me a letter stating that I needed to remove the small political presidential sign from my yard based on the covenants, conditions and restrictions as stated:

"No sign of any kind shall be displayed to public view on any lot except one sign of reasonable size advertising the property for sale or rent, or signs used by the builder to advertise the property during the construction and sales period."

Do I have any overriding rights here or must I comply with this request.

Thanks!What is the name of your state (only U.S. law)?

[quincy]

Well, you have your First Amendment rights, for a starter, which sort of override the HOA's covenants, conditions and restrictions.

The ACLU has actually been involved in several yard sign disputes over HOA regulations and city ordinances that try to prohibit the posting of yard signs, and the courts have ruled that signs can only be regulated by size, and by location in the yard if they are a public hazard. Any other prohibitions violate the right to free speech.

I will post back with some case law, so you will have the information available to present to your HOA.

[damon_norris]

I read somewhere that I basically signed away my rights when I purchased by agreeing to the terms of the covenants. Is this true?

[quincy]

I don't think any HOA can make you sign away your Constitutional rights.

The United States Supreme Court ruled on yard signs in 1994 in City of Ladue v. Gilleo. Residential signs are, said the Court, ". .a venerable means of communication that is both unique and important."

States have found that prohibiting yard signs is unconstitutional in every case that has made it to court, although what can be regulated is the size, the shape and the location of signs if the signs' locations are hazardous to health and safety. They CANNOT regulate what is said on the signs - all regulations and ordinances must remain content-neutral.

Freedom of speech is a fundamental right.

Edit to add information specific to Homeowner's Associations:

In Committee for a Better Twin Rivers v. Twin Rivers Homeowner's Association, New Jersey, the Court said that HOAs are subject to free speech provisions. "We discern no principled basis for distinguishing between the general public at large and the members of a community association."

In 2004, President Bush signed a bill preventing condominium and HOA associations from restricting displays of U.S. flags by homeowners in the associations. Many states followed this bill with both sign and flag laws of their own, prohibiting associations from banning flag and sign displays. Florida has a law specifically for the display of flags. I have not located a sign-specific Florida HOA court decision yet, however all states seem to rely on the Supreme Court's City of Ladue v. Gilleo decision.

[racer72]

Florida laws backs the HOA. The only part that addresses signs is below.

720.304 Right of owners to peaceably assemble; display of flag; SLAPP suits prohibited.--
(6) Any parcel owner may display a sign of reasonable size provided by a contractor for security services within 10 feet of any entrance to the home.

If you want to spend a whole lot of money to prove your point, knock yourself out.

City of Ladue v. Gilleo.

Irrelevant. This case addresses a city's right to restrict signs, not an HOA.

Committee for a Better Twin Rivers v. Twin Rivers Homeowner's Association

First, this was a New Jersey case, not a Florida case. And second, the decision was overturned by the NJ Supreme Court, the court says reasonable HOA restrictions do not violate rights provided by the state constitution. This case never address US Constitutional rights.

In 2004, President Bush signed a bill preventing condominium and HOA associations from restricting displays of U.S. flags by homeowners in the associations.

This is addressed by Florida law.

2)(a) Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.

(b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner's real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag.

Perhaps a little more homework is in order.

[quincy]

Alexander Hamilton said of our Constitutional rights, "They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power."

But you are right, racer (and not only about my sloppy research). It appears that some HOAs have managed to erase and obscure some of the Constitutional rights of those who live within their boundaries and, in some states, the courts have supported them in doing so.

Unbelieveable.

[Some Random Guy]

It appears that some HOAs have managed to erase and obscure some of the Constitutional rights of those who live within their boundaries

Wholehearted disagreement. The bill of rights restricts government power, not the rights of groups of citizens to decide contracturally how to live together. Government intervention to force signs to be allowed would in fact interfere with the citizens decision to have a community free of clutter.

But its a stupid bylaw. petition the board to have it changed and in the meantime put a sign in every window of your house and paint your candidate's name on your lawn.

[You Are Guilty]

Originally Posted by Some Random Guy

But its a stupid bylaw. petition the board to have it changed and in the meantime put a sign in every window of your house and paint your candidate's name on your lawn.

I'm going to go out on a limb and say if the HOA has a bylaw prohibiting such signs on the lawn, they likely have similar restrictions on placing them in windows visible from common areas and restrictions on lawn maintenance.

Read your bylaws and CC&Rs before attempting any of the above!

[quincy]

On the Twin Rivers decision, the New Jersey Supreme Court reversed the Appellate Court decision because they found that the Twin Rivers Homeowner's Association did not infringe unreasonably on the residents' "constitutional freedoms." The Court said that, although residents have a right to express themselves, an association has the contractual right to establish rules governing that expression.

The Association in this case already allowed signs to be posted - one yard sign and one sign in a window were allowed, although utility pole signs were prohibited.

The Court stated: "Our holding does not suggest, however, that residents of a HOA may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights."

As for the prohibition on all political yard signs by the Florida HOA, a contract's clause can be voided if it is against good public policy or is unconscionable. Unconscionability would be difficult to prove, but a waiver of constitutional rights, especially when it applies to free political speech (the most vigorously protected speech in our country), could be considered against good public policy.

Flags are covered by U.S. Code Title 4 Chapter 1, and The Freedom to Display the American Flag Act (July 24, 2006), as well as individual state laws.

Edit to add:
Six states (Washington, California, Arizona, Colorado, Texas, North Carolina) have passed legislation protecting homeowners from HOA regulations that completely prohibit the display of political yard and window signs, and other states have introduced similar legislation. Although the First Amendment generally protects people from only government interference with speech, and there is a distinction made between state law, municipal ordinances and association covenants, a Homeowners Association Board can only make rules that are reasonable as to time, place and manner, and cannot prohibit free expression entirely.

In Washington State, the conclusion was drawn that the state has a legitimate purpose in protecting the free speech rights of all of its citizens. A contract, the State Senate Bill report said, may not be unconstitutional if it is "reasonable and necessary to achieve a legitimate public purpose advanced by the law."

In 1943, Justice Robert Jackson wrote the opinion for the court in West Virginia Board of Education v Barnette, U.S. 624: "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote, they depend on the outcome of no elections."

Also, a correction to racer's comment that Florida law only addresses HOAs in 720.304. Florida's Title XL Chapter 720 on Homeowners' Associations discusses the limits placed on an HOA in enforcing violations of rules and regulations - including limiting the amount of fines to $100 per violation and/or $1000 total, and the fines cannot become a lien on the property. Especially pertinent, however, is 720.304 (4)(a)(b)(c).