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Political Signs and Community Associations

 

By Mindy C. Waitsman, Attorney at Law
Moore & Reese, LLC

This time of year, community associations are often confronted with individuals who wish to place political signs in their yards or in common areas of the community. Some homeowners are shocked and surprised to learn that they must remove the signs from the community or, at a minimum, they must request permission from the Board of Directors or the Architectural Control Committee (hereafter “Board”) before they can place a sign on their own lot, in a window, on a balcony or the common areas. Some owners believe that their First Amendment right of free speech prevents the association from prohibiting them from placing the signs in the community. This is an incorrect assumption.

Constitutional rights, including the right of free speech, are rights guaranteed to citizens by the government. In Georgia, a community association is not considered a government entity and as such does not have to comply with the same constitutional requirements as a government entity. In fact, in 2001 the Georgia Court of Appeals ruled on this very issue by holding that a community had the right to enforce a restrictive covenant that was recorded in the land records that prohibited all signs from the community. See Bryan v. MBC Partners, L.P. (2001). As of today, no court in Georgia has decided in favor of an owner with respect to this issue.

Please note, however, that other states have reviewed facts very similar to the facts in the Bryan case and have decided that owners do have certain First Amendment rights to free speech. See Mazdabrook Commons Homeowners Association v. Wasim Khan, NJ Supreme Court, June 2012. In this case, the New Jersey Supreme Court was asked to decide whether a homeowners association, Mazdabrook, could prohibit residents from posting political signs in the windows of their home. In an earlier New Jersey case, the court held that a community association could place some minor restrictions on the placement of political signs (i.e. only in windows and flower beds adjacent to the home). In the Mazdabrook case, the homeowners association completely prohibited all signs other than “For Sale” signs. The court held that “Political speech in support of one’s candidacy for public office is fundamental to a democratic society. It is protected by the State’s Constitution, which affirmatively guarantees the right of free speech to all citizens. Balancing the minimal interference with Mazdabrook’s private property interest against Khan’s free speech right to post political signs on his own property, we conclude that the sign policy in question violates the free speech clause of the State Constitution.”

Several community association blogs have picked up on this topic and many leaders in the community association industry believe that this decision will be followed by other states. In Georgia, most communities that are subject to a recorded Declaration of Covenants, Conditions,

Restrictions and Easements or a Declaration of Condominium have a provision in their declaration expressly prohibiting the placement of anything in the common areas and requiring that an owner seek permission from the Board to place anything on their lot or unit, specifically including political signs (see some examples of provisions in the samples attached). This means that the Board can, by resolution, choose to ban all signs or establish certain restrictions governing the placement of signs. In light of the recent New Jersey case and public sentiment, my recommendation for this upcoming political season is not to have a complete ban on political signs. Instead, check your governing documents and, if the Board has the authority, create rules that permit some political signs but which place limitations on the display of such signs. Several examples of common restrictions that the Board can impose include limitations on the size of the sign, the number of signs per lot, and restricting the length of time that the sign can be placed on the lot. Also, the Board could provide that no more than two professionally created signs can be placed on a lot no more than three weeks prior to an election and must be removed within one week after the election.

If you have any questions, you should seek the advice of the association’s attorney.

Examples of Governing Document Provisions Restricting Political Signs

Single Family Home

Signs. Except as may be provided for herein or as may be required by legal proceedings or any governmental construction permitting process, no signs, advertising posters, political placards or billboards of any kind shall be erected, placed, or permitted to remain in the Community without the prior written consent of the Board of Directors or ARB, other than: (1) one professional security sign not to exceed six inches by six inches each in size displayed on a Lot; and (2) one professionally lettered “For Sale” sign not to exceed 24″ by 30″ in size displayed on a Lot being offered for sale. The Board may establish rules permitting temporary signs on Lots announcing open houses, births, birthdays, political candidates or other events for limited periods of time. The Board shall have the right to erect signs on the Common Property.

Condominium

Signs. Except as may be provided for herein or as may be required by legal proceedings, and except for signs which may be erected by Declarant related to the development and sale of Units, no signs, advertising posters, flyers, political placards or billboards of any kind shall be erected, placed, or permitted to remain on the Condominium without the prior written consent of the Board or its designee. The Board shall have the right to erect reasonable and appropriate signs on behalf of the Association.

Condominium

Signs. Except in connection with the sales activities of the Declarant, no sign of any kind or character shall be mounted, erected or displayed upon any portion of the Property without the express written permission of the Board of Directors. The restriction herein stated shall include the prohibition of the placement of any sign on any limited common element or common element, the placement of any sign within a unit in a location from which the same shall be visible from the outside, and the placement of any sign in or upon any motor vehicle while the same is upon the Property.

 

 

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