Rembaum's Association Roundup
Your neighbor’s front yard sign supporting their favorite political candidate may be upsetting. But that alone is not a reason to spray paint over it, yell obscenities every time you see your neighbor leaving to go to work or for the association’s board or directors to demand the sign’s removal.
This begs the question, "Can a homeowners’ association 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 are no Florida cases that directly answer this inquiry. However, given other existing cases, a well-crafted and properly adopted rule prohibiting such signs is likely lawful and enforceable.
In examining an association’s "no sign" rule, let us first address the argument heard during every presidential, state and local election seasons, "This is America! The First Amendment protects the right of all homeowners to display political signs on their property." RIGHT? WRONG! The right to freedom of speech as provided by the First Amendment is not an absolute right and, moreover, the First Amendment concepts of freedom of speech and freedom of expression apply only to governmental settings. As such, the First Amendment acts as both a shield and a sword to prevent the government from stifling your free speech rights.
A community association is not an extension of our government. Though homeowners’ associations and condominium associations do provide a system of governance, they are not governmental entities and 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. Thus, 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.
Courts have long since held that owners give up certain liberties when living within a community association. In 2002, the Florida Supreme Court held, in Woodside Village v. Jahren, that certain individual rights must be compromised when you choose to live in a condominium. With this in mind, any sign prohibition should be artfully drafted to help ensure enforceability and must be equally enforced. 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 each owner. Remember, a declaration of covenants is a contract between an association and an owner. A basic principal of contract interpretation is that ambiguous terms are held against the drafting party. This means that in the event the rule is even slightly confusing, then the homeowner will likely receive the benefit of the doubt. Also, any covenant or rule must be applied fairly to avoid selective enforcement rebuttals.
That rules prohibiting signs must be artfully drafted was a point made very clear to the homeowners’ association in Shields v. Andros Isle Property Owners Association, Inc. in which the Fourth District Court of Appeal of Florida decided in favor of the homeowner who displayed a sign in her car window despite the association’s sign prohibition. The association’s rules prohibited the display of signs "on any lot", except a "for sale" sign of a certain size, and prohibited signs on a vehicle. The Court, using the definition of a "lot" in the association’s declaration, interpreted these rules to mean that no sign, except a "for sale" sign, may be on the land or on the exterior of a vehicle. However, there was no prohibition for signs displayed from within a vehicle.
In consideration of the above, 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 of directors; meaning, a "no sign" rule approved by the membership serves to increase the association’s chances of prevailing should the rule be challenged.
Upon legal challenge, a court might also 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 when it must be removed. Before demanding that an owner remove their political sign, the board should review its community association’s sign rules. If the rule at issue is not patently clear, then it is likely time to consider amendment before enforcement. Consider also, election season is short. By the time a lawsuit for an injunction to enforce the "no sign" rule is fully resolved, it might be time to consider the next electoral candidate!
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
