{"id":1948,"date":"2022-01-07T10:00:00","date_gmt":"2022-01-07T15:00:00","guid":{"rendered":"https:\/\/www.deeds.com\/articles\/?p=1948"},"modified":"2024-04-25T23:19:22","modified_gmt":"2024-04-26T03:19:22","slug":"when-condo-associations-and-free-speech-rights-collide","status":"publish","type":"post","link":"https:\/\/www.deeds.com\/articles\/when-condo-associations-and-free-speech-rights-collide\/","title":{"rendered":"When Condo Associations and Free Speech Rights Collide"},"content":{"rendered":"\n
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Do Condo Owners Give Up Freedom of Expression?<\/em><\/strong><\/p>\n\n\n\n

Covenants and restrictions<\/a> keep condominium properties safe, neat and tidy. But sometimes they irritate HOA members or potential buyers. Sometimes they even chill freedom of expression.<\/p>\n\n\n\n

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<\/a>.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n\n\n\n\n

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<\/em><\/a> headline put it, \u201cAmherst\u00a0Condo Association Bans\u00a0Banning Signs.\u201d<\/p>\n\n\n\n

Hampshire Village\u2019s new covenant<\/a> declares:<\/p>\n\n\n\n

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.<\/em><\/p>\n\n\n\n

These may decorate units\u2019 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\u2019 associations (HOAs) may publish reasonable guidance about the size and placing of political, cultural, and patriotic items \u2014 but they need to allow residents to display them.<\/p>\n\n\n\n

Condo Ownership: Essentially a Contract<\/h2>\n\n\n\n

What about the U.S. Constitution? Does the First Amendment have any bearing on how condo associations make their rules?<\/p>\n\n\n\n

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\u2019 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.<\/p>\n\n\n\n

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\u2019s deed states that title is transferred subject to all covenants. Thus, by the buyer\u2019s implicit agreement, associations can set certain limits on expression that the government can\u2019t.<\/p>\n\n\n\n

There are exceptions to this general rule, though. Massachusetts and New Jersey consider homeowners\u2019 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. <\/p>\n\n\n\n

As you can see, it\u2019s important to look to the property\u2019s state law to know what protected rights homeowners enjoy, and in what ways associations can or cannot limit free expression.<\/p>\n\n\n\n

Procedure and Substance: Boards Must Be Attentive to Both<\/h2>\n\n\n\n

An unreasonable restriction could be unenforceable if it wasn\u2019t properly passed or enforced. In other words, the board has a proper procedure to follow.<\/p>\n\n\n\n

What the rule actually says people can and can\u2019t do can also be problematic. That is, a restriction or covenant could be unenforceable because of its substance.<\/p>\n\n\n\n

Look to the HOA\u2019s 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.<\/p>\n\n\n\n

Also, the board\u2019s 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\u2019s action.<\/p>\n\n\n\n

Sometimes, people who relied on the rules before they were changed may be exempted from the new expectations; this \u201cgrandfathering\u201d allowance is expressly addressed in some states\u2019 property codes.<\/p>\n\n\n\n

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\u2019 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.<\/p>\n\n\n\n

\u261b Didn\u2019t the Fair Housing ban discrimination, including for the \u201cfamilial status\u201d of having young children? Yes, but <\/em><\/strong>senior housing<\/em><\/a> is an exception.<\/em><\/strong><\/p>\n\n\n\n

Limits on Expression: They Must Be Fair and Reasonable<\/h2>\n\n\n\n

There are some substantive areas where boards should tread carefully \u2014 no matter how perfectly they follow their procedures. Those areas tend to concern freedom of expression:<\/p>\n\n\n\n