Political polarization in 2020 has reached a COVID-fevered pitch, ignited by shadowy entities of all kinds fueling a whole lot of anger. As if things weren’t volatile enough, it’s now election season in Florida, which boasts more community associations than any other state in America.
When we really believe in something, many of us feel a gut-level need to make a difference. Make a statement. Contribute. So, sinking that yard sign stake into the pliant ground of our own property on behalf of a candidate or a cause feels like a gauntlet we’ve thrown down to the world. With that one action, we become invested and committed, bolstered by the force of our own hands under the mantle of property ownership. It’s a simple, yet powerful and exhilarating cocktail of purposefulness.
It’s no surprise, then, that tempers flare even under normal circumstances when Florida community associations remind their homeowners to refrain from planting signs of any kind, or worse, remove the signs they’ve already posted. Not unexpectedly, this season may be especially volatile in terms of the perennial homeowners’ association (HOA) sign complaints, notwithstanding a year in which neighbors’ inflammatory politics may be brazenly displayed through symbols or pictures having no overt campaign message whatsoever.
While the First Amendment protects free speech, sometimes it does not apply. If displaying signs on your property is something important to you, it might be a good idea to check those HOA covenant documents before you purchase your home. Community associations are regulated on a state-by-state basis, so they differ significantly in what they allow—signs or otherwise–as does case law in their respective jurisdictions. On the day-to-day level, types of restrictions can change as rapidly as association boards do.
The underlying principle that associations are private and not actually a “government entity” (although they can sometimes feel like one) means federal protections pertaining to free speech may not necessarily apply within the boundaries of an HOA. When you purchase a home inside of an HOA, you are agreeing to the association’s governing documents in the same manner as when you execute a contract. Accordingly, the purchase of home is subject to recorded restrictions, which may limit your First Amendment rights. Courts generally uphold the association’s authority to restrict or ban free speech, including signs, placed within a particular community if the association has the authority in the recorded documents to do so and there are no statutory restrictions to the contrary.
Further, community associations are not deemed to be a “state actor” by most states (meaning they are not considered to be legally acting on behalf of their state), so legislatures have been traditionally unwilling to enact laws governing their ability to restrict free speech.
Many associations either do not allow signs or place significant restrictions on them, usually to avoid creating controversy amongst neighbors, but mostly for the humdrum reason that regulating signage takes time, manpower and money to pay an attorney for his or her opinion on how whether a sign may be placed in a particular area, for what duration, their size, allowable content, etc. Even if signs are permitted under heavy restriction, someone must be assigned to monitor the signs, assess them and determine whether same comply with the restrictions. Given all that and the likelihood of differing opinions and exceptions prompting litigation, it’s often easier just to ban all types of signs for everyone altogether.
Notwithstanding restrictions in recorded documents, Florida law does provide for community association residents’ display of official American flags, the official flags of the United States’ armed forces, and/or an official POW-MIA flag. Condo dwellers are also statutorily allowed to display a mezuzah in their doorway. The right to display same cannot be taken away by virtue of a restriction in the governing documents or by a rule enacted by the Board of Directors.
Beyond that, be mindful that any signage, including political signage, may be subject to any restrictions in your community association or condo’s governing documents.
With so much current turmoil, hoping for tolerance may be laudable, but your self-quarantined neighbor who hasn’t left the house in five months may see your sign, statue or yard decoration as just the right opportunity to let off some steam. So, if your community has no stated restrictions (unlikely), checking with your association manager remains the best policy before you decide to display anything at all.
By Alessandra Stivelman, Esq. and Carolina Sznajderman Sheir, Esq.
Alessandra Stivelman, partner at Eisinger Law is a Board Certified Specialist in Condominium and Planned Development Law and AV Preeminent® rated. She focuses her practice on community association and real estate law and can be reached at (954) 894-8000 x 304 or firstname.lastname@example.org.
Carolina Sznajderman Sheir, partner at Eisinger Law, is AV Preeminent® rated and focuses her practice on real estate law, community association law, commercial litigation and developer representation. She can be reached at email@example.com or 954-894-8000 ext. 238.
Eisinger Law is a multi-practice Florida law firm focused on community association law, real estate law, developer representation, civil/commercial litigation, insurance law, estate planning and probate. For more information, visit eisingerlaw.com or call 954-894-8000.