In the midst of this electoral season, perhaps it is especially timely to discuss sign regulation in communities, particularly as it relates to political signs. You may be getting questions or comments about sign regulation in your communities, so we thought it would be a good idea to let you know what goes, and what does not, in community associations with regard to political signs. There are those that will assume that there is no way that community associations can regulate political signs because it violates their right of free speech under the First Amendment to the Constitution. For reasons we will explain, this is not entirely correct in the community association context.

Of course it is common to have sign regulation in community associations, particularly with respect to “For Sale” signs. Is there a distinction to be made between “For Sale” signs and political signs? Political signs seem to have more to do with free speech than for sale signs. In fact, when analyzing government regulation of speech, courts often distinguish between “commercial speech” and other types of speech, and find that commercial speech is not entitled to the same level of protection as other types of speech. But does that matter in a community association?

Basic Principles Apply

Although municipalities are constrained by the First Amendment in regulating political signs, there is really no restraint imposed on community associations which are created by the recordation of restrictive covenants. These covenants are in the nature of a contract between the owners of lots or units, and buyers in the association are deemed to have agreed to the contractual provisions upon their purchase.

Court decisions in other states

In Kansas the legislature passed a bill which makes it illegal for neighborhoods to adopt restrictive covenants prohibiting political yard signs. David Hudson, a First Amendment scholar at Vanderbilt University, has done research to cast doubt on the legitimacy of such laws. He states: “The First Amendment generally protects people only from government interference with speech.” Mr. Hudson cited a Pennsylvania court ruling which stated that an association did not violate the First Amendment by removing political signs in accordance with the association’s declaration prohibiting the posting of signs at the individual units. The judge included the following statement in the ruling:

“The courts of the Commonwealth have vigorously defended the rights which are guaranteed to our citizens by both the Federal and our Commonwealth’s constitutions. One of the fundamental precepts which we recognize, however, is the individual freedom to contractually restrict, or even give up those rights. The homeowners challenging the sign prohibition contractually agreed by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on their property.”

Another significant case was decided in New Jersey. In a ruling that could have implications beyond New Jersey, in 2007 the N.J. Supreme Court upheld the right of homeowners’ associations to restrict the posting of political signs and other forms of constitutionally protected speech, as long as the restrictions are not “unreasonable or oppressive.”

In a unanimous decision, the Court ruled:

“We conclude that in balancing plaintiffs’ expressional rights against the association’s private property rights, the association’s policies do not violate the free-speech and right-of-assembly clauses of the New Jersey Constitution.”

Virginia Code Section on political signs in municipalities not applicable

Thus, there is a critical distinction between state law or municipal ordinance and association covenants. The Virginia Attorney General has recognized this distinction in a 2004 Opinion interpreting Virginia Code § 15.2-109, which restricts the ability of a “locality” to prohibit the display of political campaign signs on private property. The Attorney General was asked whether the restriction of this statute also applied to private homeowners’ associations. The Attorney General stated that a locality meant “a county, city, or town as the context may require” and concluded:

 “Accordingly, it is my opinion that the restriction imposed by § 15.2-109 on a locality’s authority to regulate the display of political campaign signs on private property does not apply to private homeowners’ associations.”

 Virginia Bill Unsuccessful

In 2007, the Virginia General Assembly considered a bill which would have prevented community associations from regulating political signs. With opposition from CAI Virginia Legislative Action Committee, the bill was withdrawn by the sponsor.

So what’s the best way to deal with the issue?

It is clear then that under current law are not dealing with Constitutional issues in the association context, but we are dealing with covenants and rules. Under Virginia law, recorded covenants need not be reasonable. Because they are recorded in public land records, any person purchasing has constructive notice of their existence and is required to abide by those covenants. If the covenants prohibit political signs, then they are prohibited and the board has no power to permit them, although such prohibitions are rare.

On the other hand Rules promulgated by a board of directors must be reasonable. Consequently, if an association’s board is empowered to enact rules that govern the conduct of the homeowners on the common areas and their lots, those rules must be reasonable.

If there is no prohibition on signs in the covenants, the board is authorized to make rules, and if the board believes that rules on political signs are appropriate, then the rules should be ones of reasonable regulation, rather than prohibition. Consequently, we advise in such a case that association rules should allow for the posting of signs on a lot or unit of a reasonable size for a reasonable time before the vote is taken, expressing the views of the individual homeowner which are not unduly offensive. In other words, if it has authority to make rules, the board may regulate the time, place, and manner of the signage as long as it is reasonable. The judgment as to the parameters of this freedom of expression is left to the Board of Directors of each association.

In conclusion, recognition should be given to the First Amendment rights to freedom of expression where there is not a prohibition in any covenants. If you are in need of a rule in this regard or wish for us to review a proposed rule we are pleased to do so.

In the meantime, we urge you all to register to vote, exercise your vote and let your preferences be known in order to fully participate in the electoral process.