Sign of the Times: Can HOAs Prohibit Political Sign Displays?
Are you a fan of candidate and election signs that have cropped up everywhere before the recent primaries and in anticipation of the upcoming general election?
Perhaps you see them as a proud hallmark of our democracy in action. Perhaps you yourself have staked a sign in your lawn advocating for a particular candidate or issue and view your ability to do so as a fundamental right. Or maybe you wish your neighbor would take down the signs in her lawn because they are polarizing in this sensitive political climate. Maybe, in your view, the signs littering the greenspace in the neighborhood serve only to detract from the property values in your community.
Because people have strong and differing views on the subject, many of our homeowner association (HOA) clients have been wrestling with whether to allow the display of political signs on the lots in their communities. Our clients are faced with this issue where the recorded HOA Declaration prohibits the display of such signs on the lots. Some Declarations, for example, prohibit all outdoor signs in the community. Others mandate that the only permissible signs on the lots are for-sale signs.
Recognizing that a prohibition on the display of political signs is controversial, our clients ask us whether they can and should enforce it. Contrary to popular belief, our answer is not the same across the country due to the First Amendment to the U.S. Constitution. As a general matter, the federal Constitution limits the powers of the government and not private entities, like HOAs. HOAs generally are not subject to the First Amendment guarantee of freedom of speech.
To the contrary, our answers largely depend on where the community at issue is located. While federal law does not govern the issue, state and local laws may protect the right of citizens to display political signs on their property even if they live in an HOA.
Under Maryland law, for example, an HOA’s Declaration may not prohibit homeowners from displaying political signs on their lots. It may only impose limits on when such signs may be dis- played. The time limits must correspond to those limits set forth in the law of the local jurisdiction to the extent that such a law exists. In Howard County, Maryland, for example, political signs may be displayed 60 days prior to and seven days after the election. If there is no local law on-point, then the state law provides that the Declaration may restrict political signs to a period not less than 30 days before and seven days after the election.
By contrast, Virginia and the District of Columbia have no laws on the books at this time granting homeowners in HOAs the right to display political signs on their property. Accordingly, in those jurisdictions, an HOA is free to enforce a provision in its Declaration that prohibits the display of political signs on the lots. A court will likely uphold the HOA’s enforcement action also because the HOA decisions in those jurisdictions are reviewed using the deferential “business judgment” standard.
But, as we all learned growing up, just because you can do something doesn’t mean that you should. HOAs may not want to enforce an outright prohibition on the display of political signs even if they may legally do so. There may be homeowners in the community who are passionate about political issues and their perceived legal rights. Those homeowners may be willing to wage a costly legal battle against the HOA even though they are likely to lose. The HOA may want to avoid spending limited community resources on the suit, especially if the community is divided on the issue.
In such instances, the HOA may want to regulate instead of prohibit political signs to appease those homeowners who want to display them while also addressing the concerns of those homeowners who consider political signs to be an eyesore. In such instances, the HOA may consider limiting the number and size of signs permitted on each lot, and prohibiting hand-written signs, in addition to limiting the time during which signs may be displayed.
A community association attorney can advise an HOA facing this issue with regard to the local law and any legal development on the subject. The attorney can also assist an HOA to amend its governing documents to specifically address or regulate the issue of political signs should the HOA decide to do so.
Shirley Steinbach is an attorney who counsels community associations in Maryland, DC, and Virginia. For more information about posting political signs in communities, contact her at 301-657-0172 or firstname.lastname@example.org.