Q: Our condominium association has a rule barring the display of signs in
common areas or in locations visible from common areas. Some board members say
we are required to make an exception for political signs. Is that true?
A: The key question is whether condominium boards have the authority to restrict the right to freedom of speech, guaranteed by the Constitution. A decade
That legal consensus has shifted over time, however,
and the courts have become more inclined to view condo associations as
quasi-governmental actors, required to recognize, at least to some degree, the
constitutional rights of their residents, particularly if the condominium
relies on state law to support its claims or a portion of them.
Also worth noting, a Massachusetts Superior Court has
held that residents of a condominium have free speech rights related to the
state’s constitution. In addition, the Massachusetts Appeals Court has found
that condominium associations may, in fact, be viewed as “government actors” in
some cases. Specifically, the Massachusetts Appeals Court held that where a
condominium seeks to use the state condominium statute to support its claim to
recover legal fees against an owner accused of violating a sign prohibition,
the condominium’s policy will be subjected to First Amendment scrutiny. And the
New Jersey Supreme Court has ruled significantly that a condo association’s ban
on all signs was unconstitutional because it prohibited the display of
political signs, impinging on political speech which, the court noted, “lies
at the core of our Constitutional speech protection…[which] is fundamental to
democratic society.”
In considering a policy governing
political signs, your board should consider these decisions, the judicial
reasoning behind them, and what appears to be clear trend toward curbing the
authority of condominium boards to govern their communities. The board should
also consider the reaction of owners, many of whom may want to express their
political views by displaying political signs. Some owners are likely to
challenge a policy banning signs and there is a better than even chance that
the courts will side with them.
But “reasonable” restrictions similar to those the
courts have accepted for the display of flags are likely to pass muster with
both owners and the courts. Following those guidelines, owners could display
political signs but the board could restrict the “time, place and manner” of
the displays.
That means you can dictate the size of the signs and
where owners place them – on their own property, for example, and not in common
areas, or, if in common areas, not on sidewalks or streets where they would
create a safety hazard. You can also specify a period before and after an
election when the signs can be posted. And you can restrict the “manner” of the
display, prohibiting signs with flashing neon lights or loud noises that would
constitute a nuisance to residents.
Any restrictions you impose must be
content neutral, however. That is, you can’t dictate what signs can and cannot
say, you can’t permit signs supporting one candidate or one position but not
others, and enforcement must be consistent and even-handed.
Some owners may challenge any
restrictions the board imposes, but reasonable restrictions on signs are less
likely to anger owners and more likely to survive a challenge than a policy
banning them entirely.
Gary Daddario is a partner in the
Braintree firm of Marcus Errico Emmer & Brooks. P.C. concentrating his practice in the field of
community association law since 2003. In
addition to assisting Massachusetts clients, Gary also assists New Hampshire
clients and manages the firm’s new location in Merrimack, New Hampshire. Gary’s email address is gdaddario@meeb.com.
