Unless you share similar political views, your neighbor’s front yard sign supporting their favorite political candidate may be upsetting, but, that alone is not a reason for the board to demand the sign’s removal. However, a well-crafted and properly adopted rule prohibiting all signs is likely lawful and enforceable. Today’s issue de jure is, “Can a homeowner or condominium association prohibit the display of political yard signs?” In short, “yes, it likely can.” The reason the word “likely” is used is due to the fact that, as yet, there is no Florida case law which directly answers this inquiry. But, given other existing cases, such a rule is more likely than not, enforceable.
In examining an association’s “no sign” rule, let us first address the argument heard every four years, “This is America! The First Amendment protects the right of all homeowners to display political signs.” Wishing this to be true will not help. In fact, the First Amendment concepts of freedom of speech and freedom of expression apply to governmental settings. As such, they act as both a shield and a sword to prevent the government from stifling your free speech rights.
In contrast, homeowner or condominium associations are not governmental entities (though admittedly they govern, they have no nexus to local or federal government). In 1987, the Florida Supreme Court held, in Quail Creek POA v. Hunter, that neither a homeowners’ association’s recordation of its covenants in the public records, nor the enforcement of its covenants in state court, created a sufficient nexus to evidence “state action” such that the First and Fourteenth Amendment would apply. With that in mind, any homeowner would be hard pressed to argue otherwise. Admittedly, there are occasions when the Florida Supreme Court applies other rights set out in our Federal Constitution, but not in this instance. (Then again, at times, the courts are not as predictable as we might otherwise like to think.)
Courts have long since held that owners give up certain liberties when living in an association. In 2002, the Florida Supreme Court held, in Woodside Village v. Jahren, that certain individual rights must be compromised when one chooses to live in a condominium association.
With that as our backdrop, any “no-sign” rule should be artfully drafted to help ensure enforceability. There is no margin for error. The dispositive court cases regarding rule enforceability make clear that a sign restriction must be “clear and unambiguous” to be enforceable against an owner. Remember, a basic principal of contract interpretation is that ambiguous terms are held against the drafting party. As a practical matter, in plain English, this means that in the event the rule is even slightly confusing, then the homeowner will receive the benefit of the doubt. Also, any covenant or rule must be applied fairly to avoid selective enforcement rebuttals; so, if Dorothy the Democrat is told to remove her lawn sign, so too must Roger the Republican be similarly told.
Thus, a homeowners’ association could, more likely than not, enforce its no-sign policy which includes prohibiting political signs. Also, as a general rule, courts favor covenants adopted by the membership over rules adopted by the board; meaning, the former serves to increase the association’s chances of prevailing.
Upon legal challenge, a court might be more inclined to uphold a no-sign rule that does not include an absolute prohibition, but rather, that regulates the length of time the sign can be displayed, its size, where it can displayed, and by when it must be removed, too. Before demanding that an owner remove their political sign, the board should review its homeowners’ association’s “signage” rules. If the rule at issue is not patently clear, then it is likely time to consider amendment before enforcement. Consider, too, election season is short. By the time a lawsuit for an injunction to enforce the “no-sign” covenant is fully resolved, it might be time to consider the next presidential candidate!