When Condo Associations and Free Speech Rights Collide

Image of the outside of a condo with an American Flag draping from the side

Do Condo Owners Give Up Freedom of Expression?

Covenants and restrictions keep condominium properties safe, neat and tidy. But sometimes they irritate HOA members or potential buyers. Sometimes they even chill freedom of expression.

The matter of chilling came up for an Amherst, Massachusetts condo property, after the board took note of a nearby case that drew in the American Civil Liberties Union. That previous case resulted in a policy allowing a resident of a condo property ten miles away to display a Black Lives Matter sign.

After receiving a legal analysis from the American Civil Liberties Union, the Hampshire Village Condominium Association voted to amend its own master deed to permit unit owners to post political signs, flags, religious banners and other decorations without prior board approval.

The deed amendment was recorded in December 2021 by the Hampshire County Registry of Deeds. Now, the residents may freely display these items. As the Amherst Bulletin headline put it, “Amherst Condo Association Bans Banning Signs.”

Hampshire Village’s new covenant declares:

All Unit Owners have a right to display a non-commercial posting (e.g., a sign, flag, banner, or other decoration), including a posting of a political, religious, moral, cultural, or scientific nature, or one that otherwise contributes to the free marketplace of ideas.

These may decorate units’ doors, windows, or garden beds, and can be sized up to 20 X 30 inches. The Amherst story tells a lot about how regulations of expression work at condo properties. Homeowners’ associations (HOAs) may publish reasonable guidance about the size and placing of political, cultural, and patriotic items — but they need to allow residents to display them.

Condo Ownership: Essentially a Contract

What about the U.S. Constitution? Does the First Amendment have any bearing on how condo associations make their rules?

The First Amendment keeps the government from forbidding free expression, but condos are not the government. Condo associations and condo buyers are deemed private individuals who have freedom to make agreements that could limit the expression of either or both sides. A homeowners’ association declares the duties and restrictions of itself, and the purchaser. The declaration is a public document, on file with the county recorder of deeds.

The buyer enters into a contract, and presumably agrees to any recorded rules and regulations, when accepting the deed to the unit. The individual condo unit’s deed states that title is transferred subject to all covenants. Thus, by the buyer’s implicit agreement, associations can set certain limits on expression that the government can’t.

There are exceptions to this general rule, though. Massachusetts and New Jersey consider homeowners’ associations quasi-governmental entities. In states that follow their approach, individual freedom of expression can have more breadth. And the free speech protections Californians enjoy under their state Constitution are also good against private properties that are accessible to the public. 

As you can see, it’s important to look to the property’s state law to know what protected rights homeowners enjoy, and in what ways associations can or cannot limit free expression.

Procedure and Substance: Boards Must Be Attentive to Both

An unreasonable restriction could be unenforceable if it wasn’t properly passed or enforced. In other words, the board has a proper procedure to follow.

What the rule actually says people can and can’t do can also be problematic. That is, a restriction or covenant could be unenforceable because of its substance.

Look to the HOA’s governing documents and state law for the way rules must be made and carried out. If a rule is changed or additions are made, these amendments are usually initiated by board members or a petition from a certain minimum number of homeowners. Then there are notice and meeting requirements, to allow owners time to weigh in. For a binding rule change, proper procedures must be followed.

Also, the board’s enforcement of a covenant or restriction must be carried out in a procedurally fair and reasonable way. Improper, inconsistent, or apparently random enforcement can invalidate a board’s action.

Sometimes, people who relied on the rules before they were changed may be exempted from the new expectations; this “grandfathering” allowance is expressly addressed in some states’ property codes.

The actual content of the covenant or restriction could be unenforceable if it contradicts public policy. State laws and constitutions, for example, might enshrine certain homeowners’ rights. The federal Fair Housing Act bans housing discrimination based on race, religion, age, and a host of other personal characteristics. That said, condo developments can create senior housing communities that do not allow children.

Didn’t the Fair Housing ban discrimination, including for the “familial status” of having young children? Yes, but senior housing is an exception.

Limits on Expression: They Must Be Fair and Reasonable

There are some substantive areas where boards should tread carefully — no matter how perfectly they follow their procedures. Those areas tend to concern freedom of expression:

  • There are protections for displays of the U.S. flag as defined by federal law and many states. Florida law protects HOA members’ respectful display of the state flag or military flags, as well as the Stars and Stripes.
  • Political signs can be limited to certain days around election time, limited in size and number, and restricted as to placement. Check state law for more information. It’s likely not OK to post a sign swearing at a politician, or to adorn signs with offensive text or pictures, or to violate the language of the state’s law.    
  • Peaceable assembly is an expressly shielded right in some states. California, for example, protects political presentations and gatherings, and visits to properties by candidates. Arizona and California laws support unit owners who circulate political literature on the association’s property. Campaign events, candidates’ presentations, canvassing and other political activities are considered political speech. Check state law for relevant limits (property residents only; daylight hours; name tags; transparency on candidate or issue being supported; etc.).   
  • Religious expression is protected under the Fair Housing Act, but an HOA can set some limits. The HOA may evenhandedly limit what goes on in common spaces, for a reasonable purpose. It may not discriminate against ownership based on religion.

Going Too Far? Opposing Covenants and Restrictions

A condo unit owner may oppose an improper covenant, or being singled out unfairly — particularly if the singling-out appears to be based on personal characteristics. The owner should approach the board with the objection.

If the disagreement persists, the unit owner has two choices: to live with the situation, or to speak to a local attorney who handles HOA matters. The next step could be initiating mediation, or filing a state action in the property’s county. If the HOA’s actions violate federal law, the homeowner can submit a complaint with the Office of Fair Housing and Equal Opportunity or file an action in federal district court.

Unit owners should take note of provisions in the homeowners’ association’s declarations and state law as to whether the party who didn’t prevail in court has to pay the other side’s attorney’s fees. 

In a Nutshell…

Condos are governed by state laws. States do tend to uphold reasonable HOA covenants that promote the safety, wellbeing, and quiet enjoyment of the property owners as a whole. So, usually, when the association enforces a rule, residents have to grin and bear it.

But not always.

Supporting References

The United States Department of Justice: Fair Housing Act.

California Civil Code, §4515. Common Interest Developments; Ownership and Transfer of Interests; Ownership Rights and Interests.

Florida Statutes, §720.304. Right of Owners to Peaceably Assemble; Display of Flag; SLAPP Suits Prohibited.

Jim Russell for The Republican via MassLive.com: Hampshire Village Condominium Association in Amherst Amends Rules Allowing Owners Right to Display Postings of Free Expression (updated Dec. 14, 2021). 

Atty. Christopher R. Moore for Homeowners Protection Bureau, LLC: Freedom In Associations: Exercising Free-Speech Rights In An HOA and Simply Unenforceable: HOA Covenants And How They Can Go Too Far.

Photo credits: Life-Of-Pix, via Pixabay