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Subject: Political Signs
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LindaF7
(Florida)

Posts:2


03/10/2020 1:34 PM  
Our Declaration of Restrictions states signs are not allowed without permission and if t is granted must be a specific sign and placed non a window.
Now that we are approaching election season some of our board members feel the rules should be overlooked and signs should be permitted to be on front yards. We will have signs up for 6 months. Isn’t our Board required to follow our Declarations of Restrictions at all times?
GeorgeS21
(Florida)

Posts:2299


03/10/2020 1:35 PM  
Asked and answered! :-)
BarbaraT1
(Texas)

Posts:298


03/10/2020 1:39 PM  
Do you governing documents allow the board to grant a variance to any of the rules and regulations?
AugustinD


Posts:2906


03/10/2020 1:48 PM  
One ought to tread softly with this theme that HOA boards and HOA Architectural committees can grant a variance to anything they want. For the greater part, this is not the case. The covenants are a contract and capriciously changing the terms of a contract is not something a court is likely going to support. Even clauses in covenants that say, for example, that a Declarant can amend at any time can and have been viewed as unlawful by the courts.
AugustinD


Posts:2906


03/10/2020 2:05 PM  
Posted By LindaF7 on 03/10/2020 1:34 PM
Our Declaration of Restrictions states signs are not allowed without permission and if it is granted [the sign] must be a specific sign and placed non a window. Now that we are approaching election season some of our board members feel the rules should be overlooked and signs should be permitted to be on front yards. We will have signs up for 6 months. Isn’t our Board required to follow our Declarations of Restrictions at all times?
I guess you are perturbed that the Board is not granting permission for a "specific sign" but instead is considering blanket permission for any (political?) sign for any owner's lot for the next several months. I think "specific" could be legally argued a few ways, including to support the proposal the board is considering.
GeorgeS21
(Florida)

Posts:2299


03/10/2020 2:08 PM  
One does not "...overlook..." rules.

This sounds like children wanting to go back to high school so they can rush around practicing election sign fun.

Just insist they rules be followed - don't allow departures from the rules, unless the rules are changed via normal process.
BarbaraT1
(Texas)

Posts:298


03/10/2020 2:34 PM  
Posted By AugustinD on 03/10/2020 1:48 PM
One ought to tread softly with this theme that HOA boards and HOA Architectural committees can grant a variance to anything they want. For the greater part, this is not the case. The covenants are a contract and capriciously changing the terms of a contract is not something a court is likely going to support. Even clauses in covenants that say, for example, that a Declarant can amend at any time can and have been viewed as unlawful by the courts.






This board greatly overestimates the willingness of boards and homeowners to go to file lawsuits.



JohnC46
(South Carolina)

Posts:9299


03/10/2020 2:49 PM  
The question becomes how far a BOD will go when they feel someone has violated the Covenants/Bylaws. That said do not let one back you down with a legal threat. Upon receipt of a letter from their attorney, re-evaluate and in my advice, drop it. Look up benign neglect.
LindaF7
(Florida)

Posts:2


03/10/2020 2:51 PM  
There was a typo it is not a specific sign....should read it must be a specific size. There was no way to go back and edit
DeidreB
(Virginia)

Posts:76


03/10/2020 3:37 PM  
Allowing political speech as an exception to sign restrictions is not uncommon. There have been homeowners who have sued their HOA's over exercising what they see as their 1st Amendment right.

Since a board is paid to make decisions, some may see their greater fiduciary duty to avoid a lawsuit. Some By Laws and Declarations specify that if any covenant or restriction conflicts with a law that it is unenforceable. In this case you could argue the 1st amendment would take precedence over a sign restriction.

Some sates allow boards to adopt reasonable rules and regulations and so some Boards adopt rules that provide for exceptions for political signs during election and other periods that include number of signs, location, size and duration of display.

KerryL1
(California)

Posts:7037


03/10/2020 4:03 PM  
Linda says political speech IS allowed in windows and of a certain size.

Per CA civil code, we must allow non-commercial signs & banners but the state limits material, we can limit
size, duration and we only permit them in windows too. (we're a high rise)

Are you on the Board, Linda? Have they actually voted, or is it just noise?

I agree, your Board cannot thumb its nose at your covenants, especially when political signs ARE allowed in your homes' windows.
AugustinD


Posts:2906


03/10/2020 6:07 PM  
Posted By BarbaraT1 on 03/10/2020 2:34 PM
Posted By AugustinD on 03/10/2020 1:48 PM
One ought to tread softly with this theme that HOA boards and HOA Architectural committees can grant a variance to anything they want. For the greater part, this is not the case. The covenants are a contract and capriciously changing the terms of a contract is not something a court is likely going to support. Even clauses in covenants that say, for example, that a Declarant can amend at any time can and have been viewed as unlawful by the courts.


This board greatly overestimates the willingness of boards and homeowners to go to file lawsuits.
Granting "variances" only invites discord.
AugustinD


Posts:2906


03/10/2020 6:11 PM  
Posted By LindaF7 on 03/10/2020 1:34 PM
non a window.
What does this mean?
GenoS
(Florida)

Posts:3664


03/10/2020 7:34 PM  
Posted By DeidreB on 03/10/2020 3:37 PM
Allowing political speech as an exception to sign restrictions is not uncommon. There have been homeowners who have sued their HOA's over exercising what they see as their 1st Amendment right.

Do you have any citations to back that up? In Florida political signs being allowed as an exception to sign restrictions would not be common at all. I've never seen such an exception. I think bans on signs, which are very common, were specifically designed to prevent political sign pollution from springing up in a neighborhood.

Here's an article written by a fairly well-known HOA attorney in Florida. In it he says,

"Across the vast majority of the United States, courts have held that community associations are not state actors, and they are therefore not subject to the Constitutional prohibition against restrictions on speech. In fact, such restrictions are fairly common. For example, many HOAs restrict residents’ ability to place signs on their homes or in their yards — that is an example of a restriction on free speech."

I think you're tilting at windmills.
DeidreB
(Virginia)

Posts:76


03/10/2020 8:07 PM  
I've never lived in Florida but have lived in Virginia, Maryland and the Midwest (as an HOA'er).

Here is one example of a lawsuit in the link below. I cannot paste the Washington Post article as I am not a subscriber. It is a better article if you can bring it up. The couple in the story planted a Presidential election sign in their front yard that was larger than what was allowed. They sued their HOA for strictly enforcing the covenant. You can read about it.

https://century21nachman.com/fairfax-hoa-bankrupted-by-lawsuit/


I have a long standing professional relationship with a large CAI affiliated HOA Law firm attorney. I have attended his firm's seminars and he has himself shared with me that boards that take up an inflexible stance on political signs are taking a chance on a legal challenge that he would not advise them to take on. Other have advised me of same.

As for it not being uncommon, I don't know how that would be documented, GenoS. I am speaking from my experience living in numerous HOAs and serving on multiple boards. We are now surrounded by multiple fairly large, well managed HOA's in my area that allow political signs but no commercial signs and that is a conscious decision by the boards to make an allowance for political speech at election time. HOA boards can choose to not enforce a CCR if they believe it is in the best interest of the community. That's what they are there for.

I once lived in a community that had a CCR that only allowed resale real estate signs and they had to be of a certain (small) size and displayed in the front first floor windows. That restriction was strictly enforced and never challenged. That worked well because that was a town home community with no front yards and bottom floor windows that were very high. I have seen several HOAs with single family homes that allow the political signs because they are viewed as political speech and because those homes "have front yards." Front yards, like the OP's community has, make it a physical possibility to put up such signs which are common.

It sounds like the OP's board is considering possibly making an allowance for political signs to be displayed in front yards as opposed to just windows. If they make a decision that enough do not support, I guess they can be replaced at next election.

Admittedly, I am conservative when it comes to HOA governance. I believe prudent discretion is necessary especially with the proliferation of community associations that limits home buyers options considerably.
JanetB2
(Colorado)

Posts:4211


03/10/2020 8:46 PM  
It is items like this is why we end up with more and more HOA State Laws regulating HOA’s. In the past it was American Flags as the issue and now is becoming Political signs. The HOA’s I have lived in generally regulate where each owner can only have one political sign which can be put up like 90 days before an election and must be taken down the day after election.

Some states are now adding HOA’s laws stating similar to what I noted above. If your CCR’s allow signs with permission then potentially the BOD can send a letter to all homeowners letting them know can only have ONE sign for maximum of 90 days prior to election and avoid any homeowner battles. Since allowed it seriously is not worth the headache and fights,
AugustinD


Posts:2906


03/11/2020 7:52 AM  
Posted By DeidreB on 03/10/2020 8:07 PM
The [Virginia] couple in the story planted a Presidential election sign in their front yard that was larger than what was allowed. They sued their [Virginia] HOA for strictly enforcing the covenant.
No they did not. The couple sued because the Virginia HOA imposed fines when the covenants did not authorize fines. The couple also challenged the HOA for capriciously rejected architectural improvements (having nothing to do with signs) for which the couple had applied. Here is the Washington Post article: https://www.washingtonpost.com/local/2013/02/09/d46f9bec-6652-11e2-93e1-475791032daf_story.html. Here is the decision in of the two lawsuits: https://www.casemine.com/judgement/us/5c22f257342cca657a0dafe8 . (Attorney's fees for some or all of the dispute were awarded to the HOA owners pursuant to a specific Virginia statute.)
Posted By DeidreB on 03/10/2020 8:07 PM
I have a long standing professional relationship with a large CAI affiliated HOA Law firm attorney. I have attended his firm's seminars and he has himself shared with me that boards that take up an inflexible stance on political signs are taking a chance on a legal challenge that he would not advise them to take on. Other have advised me of same.
I think you are misinformed. A host of other law firms and some case law on the internet say the issue of political signs depends on each HOA's covenants. There is no blanket "free speech right" when it comes to HOAs. Why? Because on this issue, HOAs are private corporations (not government per se) with covenants that trump free speech rights in the view of many states' courts.
Posted By DeidreB on 03/10/2020 8:07 PM
As for it not being uncommon, I don't know how that would be documented, GenoS.
GenoS is one of roughly three, veteran posters here to whom I pay attention when he talks about the law. I too checked where the courts are on this HOA issue. I agree with GenoS's conclusion on this issue.
Posted By DeidreB on 03/10/2020 8:07 PM
HOA boards can choose to not enforce a CCR if they believe it is in the best interest of the community.
If a HOA Board chooses not to enforce a CCR, it had best be because the CC&R is unreasonable by judicial standards. Rarely does a court find a CC&R unreasonable.

Amateurs serve on HOA boards. They often make ill-informed decisions that invite lawsuits and/or sow discord and confusion.
Posted By DeidreB on 03/10/2020 8:07 PM
That's what they are there for.
No. Boards exist for the greater part to enforce the covenants. It is extremely rare for a covenant to be unreasonable and potentially subject to a court challenge. More usual is for a board to make a decision inconsistent with the covenants (like the Olde Belhaven board in the lawsuit above) and get hammered for it.

Covenants denote contractual terms between the corporation and owners. To change one of those contractual terms is a variation on 'breach of contract.' Though I can appreciate that DeidreB thinks Boards exist to (pretend to be) arbiters of when a covenant should and should not apply, based on their (woefully legally inexperienced) amateurs' view of the law and their duties. If a HOA Board wants to stop enforcing a covenant, it should consult an attorney.
AugustinD


Posts:2906


03/11/2020 7:56 AM  
Posted By AugustinD on 03/11/2020 7:52 AM
A host of other law firms and some case law on the internet say the issue of political signs depends on each HOA's covenants.
Correction: Depending on case law and statute, in some states prohibiting political signs in HOAs may be unlawful. This is not a blanket rule applying to all states. In states where case law and statutes are silent, what I am seeing is that a HOA with covenants prohibiting signs can -- wait for it -- prohibit signs (be they political or not).
DeidreB
(Virginia)

Posts:76


03/11/2020 8:42 AM  
Auggie, What I said was correct. The couple sued over strict enforcement of the covenant when they were fined for a political sign. I did not elaborate on the details of the case. I referred Geno to read the articles so he could read them. Obviously if the HOA was not strict in their enforcement of this particular sign restriction there would have been no lawsuit. It's obvious what I said is correct. The underlying issue was First Amendment speech. The basis for the legal outcome is often not the same as the trigger for bringing a case to court. This case was a specific scenario that was presented at an HOA legal seminar I attended. Had their sign been a roofing company ad, instead of a Presidential candidate sign, I doubt seriously they would have gone to the lengths they did.

I am not misinformed. My interactions with HOA attorneys urge caution when it comes to being inflexible on any covenant especially those that raise emotions, political signs being one of the more sensitive matters. I never said there was "a blanket free speech right." Those are your words Auggie. I choose my words more carefully and they properly represent the good advice I have received from HOA law firms in the past 10 years or so.

Our HOA Board has not enforced a covenant that front porch lights be left on nightly. Yet the Declaration includes this covenant. Are we wrong? I think we would be laughing stocks if we fined several homeowners who elect not to leave their porch lights on. My point is that in a day and age when HOAs are widespread in so many parts of the country, and many of the Declarations are fairly boiler plate (meaning they are not carefully tailored to the specific community), that board judgment is a premium.

I am well aware of the distinction between government and corporate entities. Again, I never made an absolute statement that HOA's cannot enforce their CC&R's with respect to political signs. Many boards are using judgment and First Amendment political speech is the underlying issue that makes this an evolving issue. For example, there are states that are passing legislation that specifically limits CCR enforcement on various matters from American flags, political signs, to home businesses. Then there is case law. I have read case law as well. My observation has been that HOA's tend to win more cases in lower courts but that home owners tend to win more often on appeal. Why? I don't know. That is my anecdotal lesson learned from ongoing study of this and I do not have data.

Nothing in my comments were absolute or incorrect. I stand by them.

AugustinD


Posts:2906


03/11/2020 8:51 AM  
Posted By DeidreB on 03/11/2020 8:42 AM
Auggie, What I said was correct. The couple sued over strict enforcement of the covenant when they were fined for a political sign.
Nope. Folks can read about the case and come to their own conclusion about whether the ruling concerned political signs or fines. You and I will have to agree to disagree on this and all else you posted here.
AugustinD


Posts:2906


03/11/2020 9:02 AM  
To be clear about Virginia law on political signs and what the Virginia 2010-ish Farran case said: By my reading, Virginia is one of the states where covenants prohibiting political signs are lawful. HOA Board-enacted rules (in Virginia) prohibiting political signs, with said rules following from other covenants, may also be lawful.
DeidreB
(Virginia)

Posts:76


03/11/2020 9:09 AM  
Yes we agree to disagree.... but sincerely thanks for the discourse. I'm sure our civil difference of opinion will be helpful to others. I've shared one last article for additional insight below. Admittedly it contains some opinionated material.

Article from The Atlantic

"How One Obama Lawn Sign Tore This Community Apart"

'.......The association board believed they were operating within Virgina law, but the Farrans saw this as a violation of their free speech by a group of proto-communists trying to run their neighborhood like 1940s Russia. After the board rejected the couples' proposal for roof and deck renovations under less than legitimate seeming circumstances, the Farrans filed a lawsuit against the association. The battle lines in the neighborhood were drawn. And these people take their legal battles very seriously......'

https://www.theatlantic.com/national/archive/2013/02/how-one-obama-lawn-sign-tore-community-apart/318513/
AugustinD


Posts:2906


03/11/2020 9:21 AM  
The Atlantic article sends people to the Washington Post article. From the Washington Post article:
The Olde Belhaven Board "passed a resolution allowing the board to fine residents up to $900 per infraction for violating HOA guidelines. Across the country, fining authority has been controversial, with HOAs hitting residents with levies for such transgressions as displays of colored Christmas lights and patches of dead grass.

Board members believed that they had the right under Virginia law, but the Farrans saw an illegal power grab that had no basis in the HOA’s covenants. When the board, acting at a meeting that was not publicly announced, rejected the Farrans’ roof and deck projects for aesthetic and architectural reasons, the Farrans said it was retribution.
...
The Farrans filed a lawsuit against the HOA saying it didn’t have the authority to impose fines and had vindictively rejected their home improvements."
DeidreB
(Virginia)

Posts:76


03/11/2020 9:49 AM  
The Atlantic article also recognizes an underlying motivation for the lawsuit..... that the Farrans saw the HOA's sign enforcement in this case as an infringement of their free speech. Again, the basis for the legal outcome does not always directly equate to the motivation for filing suit.

Here is another article that reinforces my comments about the nuanced, sensitive nature of political speech and HOA enforcement (flags and signs):

https://www.lerchearly.com/news/sign-of-the-times-can-hoas-prohibit-political-sign-displays
AugustinD


Posts:2906


03/11/2020 10:05 AM  
Posted By DeidreB on 03/11/2020 9:49 AM
The Atlantic article also recognizes an underlying motivation for the lawsuit..... that the Farrans saw the HOA's sign enforcement in this case as an infringement of their free speech. Again, the basis for the legal outcome does not always directly equate to the motivation for filing suit.
I think you are grossly twisting words in an attempt to make the lawsuit fit your contention that the lawsuit was about free speech and political signs. It wasn't. The motivation for the lawsuit was to contest the HOA's abusing its (non-)powers to fine.

If someone wants to say, "It all started with a sign supporting a presidential candidate... ," I will not object. But what set the Farrans off was the fine imposed on them for said sign.

Thanks to TimB4, attached is the 2010 circuit court's decision. Neither the word "sign" nor "political" are used even once in the decision. It is an interesting case where the court said the board was acting ultra vires (meaning outside of its authority) when the board invented a power to fine. This Board-invented power had no basis in the governing documents or statute.

The 2010 Virginia court never, not once, ruled on whether the Farrans' HOA's covenant concerning signs was unlawful. Why? Because the Farrans never raised this issue.

The lawsuit is a great lesson in boards abusing their powers with regard to fines and architectural approval. It set a well-known precedent in Virginia concerning HOA fines.

Attachment: 131155533871.pdf
Attachment: 131155536954.pdf

MarkW18
(Florida)

Posts:707


03/11/2020 10:20 AM  
It's called cause and effect. The sign was THE underlying factor in the case, even if it was never mentioned in the trial. The whole world understands exactly why the community suffered in the way it did. It was pure retaliation.
DeidreB
(Virginia)

Posts:76


03/11/2020 10:28 AM  
My original post (because I have never figured out how to quote on this board so excuse me for my ignorance):

"Allowing political speech as an exception to sign restrictions is not uncommon." TRUE. Happens more than you think. Many boards choose to not enforce some Declaration restrictions on political signs and US flags or adopt rues that make for exceptions. I am not saying Boards should or have to or that all boards do this. I am saying it is not uncommon.

"There have been homeowners who have sued their HOA's over exercising what they see as their 1st Amendment right." TRUE. As per the Atlantic Journal article, the Farrans had a free speech mindset that helped facilitate their willingness to pursue a lawsuit. That lawsuit ended up having a legal basis that was not related to free speech. However their original motivation was spurred on by those concerns (unless The Atlantic is "fake news"). There is also a case pending decision right now concerning a veteran who is fighting his HOA over a flag in a flower pot. His motivation was free speech. He may lose but my statement is true.

"Since a board is paid to make decisions, some may see their greater fiduciary duty to avoid a lawsuit." TRUE. Boards make these decisions all the time. Avoidance of harmful lawsuits is a judgement that many boards use. I have seen several posts on this board referring to that type of judgment that a board may want to use from time to time depending on the issue. Political signs included.

"Some By Laws and Declarations specify that if any covenant or restriction conflicts with a law that it is unenforceable." TRUE. All my Declarations have said same or very close to it.

"In this case you could argue the 1st Amendment would take precedence over a sign restriction." TRUE but opinion. It depends on the state and how you view it. It gets back to using judgment. We can agree to disagree on this one. If an HOA board wants to dig its heels in on a political sign issue they certainly can depending on the state law and their governing documents.

"Some sates allow boards to adopt reasonable rules and regulations (TRUE) and so some Boards adopt rules that provide for exceptions for political signs during election and other periods that include number of signs, location, size and duration of display." TRUE. Some states do allow reasonable rules and regulations to be adopted by boards and some boards do just that. There are posts on this board alluding to that fact. From veteran posters.........



BarbaraT1
(Texas)

Posts:298


03/11/2020 10:57 AM  
Anyway, going back to the OP- she states that her a declaration DOES allow signs with permission. So why is it wrong for the board to give permission?
KerryL1
(California)

Posts:7037


03/11/2020 11:09 AM  
I think Barbara asks a go question: If Linda is still with us, maybe she can give us the exact wording of her declaration re: this topic.

I'm glad to now know what "ultra vires"
means. Keep planning to look it up. Thanks, Augie!
JohnC46
(South Carolina)

Posts:9299


03/11/2020 1:34 PM  
The Farran's are both US Gov Attorneys so they knew how to hurt the association and it was on the fining issue. As a result of what happened, the Farran's now say they are sorry they did it.
JohnC46
(South Carolina)

Posts:9299


03/11/2020 1:35 PM  
Posted By JohnC46 on 03/11/2020 1:34 PM
The Farran's are both US Gov Attorneys so they knew how to hurt the association and it was on the fining issue. As a result of what happened, the Farran's now say they are sorry they did it.




ADD ON BY THE OP

That BOD should have been horsewhipped for what it did.
AugustinD


Posts:2906


03/11/2020 5:23 PM  
Posted By LindaF7 on 03/10/2020 1:34 PM
Our Declaration of Restrictions states signs are not allowed without permission and if t is granted must be a specific sign and placed non a window. Now that we are approaching election season some of our board members feel the rules should be overlooked and signs should be permitted to be on front yards. We will have signs up for 6 months. Isn’t our Board required to follow our Declarations of Restrictions at all times.
If LindaF7 meant that the covenants allow signs only if both (a) the HOA grants permission and (b) the sign is placed in a window, then I guess her objection is that now the Board wants to disregard the requirement that the sign only be in a window.

John if you have a link to an article saying the Farrans regret their move, I would be interested in seeing it.

I found this interview of the Farrans and thought it a worthwhile read: http://www.homeinvasionnews.com/the-farrans-fought-city-hall-and-won/
BarbaraT1
(Texas)

Posts:298


03/11/2020 5:51 PM  
I read it as “placed non in a window” means NOT in a window - that “non” is a typo.

AugustinD


Posts:2906


03/11/2020 5:54 PM  
It's a mystery.

I was thinking of "no smoking signs" that folks on oxygen typically display. I have seen them in condo windows.
BenA2
(Texas)

Posts:613


03/11/2020 7:44 PM  
In most cases this is a matter of opinion. Some people think every restriction should be strictly enforced but our attorney advised us, and I agree, that the board is not required to enforce every little violation, although you should have an articulable reason for not doing so and do so fairly.

I think political signs are reasonable but if they make exceptions to the rule, they should make a resolution with restrictions on size and time limits.
BenA2
(Texas)

Posts:613


03/11/2020 7:50 PM  
Posted By DeidreB on 03/11/2020 10:28 AM

"Since a board is paid to make decisions, some may see their greater fiduciary duty to avoid a lawsuit." TRUE. Boards make these decisions all the time. Avoidance of harmful lawsuits is a judgement that many boards use. I have seen several posts on this board referring to that type of judgment that a board may want to use from time to time depending on the issue. Political signs included.



This is a very good point.
MarshallT
(New York)

Posts:28


03/17/2020 7:14 AM  
Of course the board shouldn't get in the habit of "overlooking" policies in the Declaration of Restrictions,but if it can figure out a way to regulate how big signs can be, then an exception could be made. The problem is enforcing an unwritten rule.
CathyA3
(Ohio)

Posts:827


03/17/2020 8:00 AM  
Our attorney also recommended not forbidding political signs. He did say that it's OK to make reasonable rules about size, placement and length of time they can be displayed. (We're a condo community, so any signs other than those in a window will be on common elements.)
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