Dissecting the sticky issue of flags, banners and signs in HOA communities
On June 14, 1777, the Marine Committee of the Second Continental Congress at Philadelphia adopted a resolution that “the flag of the United States be thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field representing a new constellation.” Though the American flag has changed a few times over the years, we’ve stuck to the Stars and Stripes format since. It’s why we celebrate Flag Day today.
The U.S. flag has profound meaning for many Americans, which is why Community Associations Institute (CAI) applauded the 2006 enactment of the Freedom to Display the American Flag Act, giving residents the right to fly an American flag despite any community association rules or restrictions that prevent doing such. However, as the international provider of education and resources to HOAs, the CAI believes that associations should be able to determine the appropriate size, placement, and installation of flags.
Every HOA has different rules for displaying flags, whether they be the American flag, a garden flag, or a flag with a resident’s favorite football team. These rules are conceived and enforced to promote uniformity within community associations and avoid the potential proliferation of all flags, banners and emblems.
Like flags, political signs are a particular pain point for homeowners associations, especially during election season. Without fail, some communities end up on the evening news or in the local newspaper for attempting to enforce their covenants on signs.
James A. Gustino, a community association attorney in Winter Garden, Fla., provided some guidance on the subject. We asked him: What should associations do about the signs? He responded:
- First off, note that strict enforcement of association sign prohibitions is almost always unwise, particularly as they relate to political signs on an owner’s property during the election season.
- Check your state’s highest court rulings and the specific “freedom of speech” verbiage in your state’s constitution. Most federal and state courts currently don’t protect political signs from association enforcement. However, the New Jersey Supreme Court issued a pair of decisions in 2012 and 2014 protecting political speech. These opinions could influence other state courts considering similar legal issues in the future.
- Be aware that covenants restricting signs often incorporate exceptions for security, developer, “for sale” and other board-approved signs. Under such circumstances, an association actively enforcing bans against political signs is unnecessarily exposing itself to charges of selective or arbitrary enforcement. When a ban on signs is universal but an association permits residents’ holiday decorations — another kind of speech — it also exposes itself to claims of selective or arbitrary enforcement. This nuance is often overlooked.
- Remember that, practically speaking, political signs usually are posted for just a few weeks. By the time the typical association cycles through its standard three noncompliance notifications, the signs will likely have been removed.
- Lastly, be sensitive that political beliefs and affiliations—like religious beliefs—tend to produce strong feelings that lead to costly and time-consuming litigation. Even if litigation isn’t the end result, is it sensible to pursue actions that invite unnecessary friction?
Gustino recommends that his clients permit political signs but enact reasonable time, place, and manner restrictions. For example:
- They can only be placed on the property for 45 days prior to an election
- They must be removed within three days after the election
- They cannot contain any profanity
- They must be limited in number
- They cannot create a sight obstruction or other safety concern.
Additionally, Gustino advocates involving community members to help craft the association’s specific restrictions and then prominently posting (via email blasts, special notices on your website and at entry signs) the rules to encourage compliance.
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Amy Repke, Vice President, Communications & Marketing. Amy brings more than 20 years of experience to CAI. Her communications career began in television news where she worked as a producer, writer, and assignment manager for local and network news channels. Amy has been nominated for four Washington Regional Emmy awards for writing and producing. Amy is a graduate of Old Dominion University and received a master's degree in Strategic Public Communications from American University.