By David Swedelson, Esq. Senior Partner, SwedelsonGottlieb, Community Association Attorneys
Considering how contentious the campaigns for president have been for the election of our next president, it is amazing that we have not received more requests from our California community association/HOA clients for advice on how to deal with political signs. The fact is that we have generally seen less political signs posted on properties then I remember in past elections. With respect to the presidential election, that may have something to do with people not really wanting to out themselves as a supporter of one candidate versus another.
Don’t get me wrong as we have received a few requests for advice from some of our association clients, just not as many as I remember from past presidential elections. In all but one of the matters that we have been requested to consult on did we find that the homeowner did not have the right to post their sign. At one association, the board did not want the owner to have their sign posted prominently in the front window of the owner’s condominium. One of the board members forwarded to me the attached article that appeared in the New York Times indicating that in New York, homeowners do not have the right to place political signs in their windows or on their property unless permitted by their association. The article (follow this link) questioned whether a resident at a community association in New York has a constitutional right to post a political sign on their property. Apparently in New York, a community association can have rules prohibiting political signs or other types of signs placed in the windows or elsewhere, depending on the associations rules.
As stated in the article, “[t]he First Amendment, a cornerstone of the United States Constitution, does not necessarily protect a person on private property. In New York State, a homeowner can, theoretically, display signs of any political persuasion. But people living in condos, co-ops and privately owned rental buildings answer to a higher power: the owner of the building (or the board of the association and then the owner of the unit if it is rented to tenants as the owner is obligated to ensure that their tenants comply with the association’s governing documents).”
The article goes on to say that “[a] renter’s lease might restrict what objects can be placed in windows. Owners of condo and co-op apartments must follow the rules of the condo association or the co-op board. Like a landlord, a condo or co-op board can enforce building rules, including those that prohibit window displays like holiday lights or signs of any kind.”
“There would not be a constitutional right to post your sign if the landlord is saying no,” said Christopher Dunn, the associate legal director at the New York Civil Liberties Union.”
But as the article also points out, next-door neighbor New Jersey has a law that prohibits community associations from prohibiting political signs. And the same is true in California. Follow this link to a prior blog post that addressed this very issue.
That post dealt with prior Civil Code §1353.6 which is now Civil Code §4710.
Like New Jersey, in California an owner of a unit or their tenant does have the right to post or display of noncommercial signs, posters, flags, or banners (which would include political signs or posters) on or in an owner’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.
And as long as we are talking about the election and campaign signs, I thought I would share this story about an owner at an association in South Dakota that outsmarted his HOA. Apparently the owner wanted to fly the American flag and asked his association for permission. While the board did not say no, they told the owner to raise the issue at the annual meeting. The owner was shocked that the board would put up obstacles to his installing a flagpole and flying the American flag, so he contacted a friend who lived just outside the gates to his community. He put up his 20 foot flagpole and a 4 by 6 foot American flag (which in California he would have the absolute right to do, follow this link). But he did not stop there. He also added a 3-by-10 foot Trump campaign sign encouraging voters to “Make America Great Again!”.
The board at his association was shocked and were quoted as saying : “As a board, it is our responsibility to uphold the integrity and appearance of the development,” the letter stated. “We feel that the placement of the flagpole and campaign sign does not enhance the development and may be interpreted that these items have been agreed upon by the members of the Aspen Hills Homeowners’ Association. This is not the case.”
They asked the owner to take his flagpole and sign down, a request they could not enforce because the sign and flag were not within the boundaries of the association. The owner apparently was not impressed with the board’s letter and was unwilling to take down the flag or the sign. He definitely outsmarted the board. Maybe they should not have just allowed him to install his flagpole. Follow this link to read the article.
David Swedelson is a condo lawyer and HOA attorney, the head of SwedelsonGottlieb’s litigation team and the editor of HOALAWBLOG. He can be contacted via email: firstname.lastname@example.org