Political Signs and Community Associations

Election Day is November 5. Between now and then, many Condominium and Homeowners’ Association Boards will be challenged on the topic of political signs. Political signs in a community have the potential to be hugely confrontational and divisive. The good news is that Community Associations can usually restrict or prohibit political signs.
Generally, political signs are “political speech” that is protected by the First Amendment. That means that the government cannot restrict anyone’s right to display a political sign on their property. But in Pennsylvania, Condominium and Homeowners’ Associations are allowed to enforce their Governing Documents, even if that means political signs are prohibited.
In Midlake on Big Boulder Lake Condominium Association v. Cappuccio, the Pennsylvania Superior Court decided that a Condominium Association could enforce a restriction on signage. In this case, Unit Owners (the Cappuccios) placed a “For Sale” sign in their window. The Declaration of the Association prohibited all signs without Board approval. The Court said that if a municipality tried to prohibit any signs on the property, that restriction would be a violation of the First Amendment. But the Court said that an Association is not a governmental entity. Because of that, it cannot violate the First Amendment. The Court went on to explain that when someone buys into a Community, they agree to follow the rules of that Community. The Court wrote:
One of the fundamental precepts which we recognize, however, is he individual’s freedom to contractually restrict, or even give up, those rights. The Cappuccios contractually agreed to abide by the provisions in the Declaration at the time of purchase, thereby relinquishing their freedom of speech concerns regarding placing signs on this property.
There are two issues that a Board must address before it enforces any regulation or outright prohibition of political signs. They are (1) Does the Association have the authority to regulate signs on the property; and (2) If so, the regulations need to be enforced uniformly.
In order to regulate or prohibit political signs, the Association has to have some authority to make those regulations. Generally, a Board can do two things. They can regulate the Common Elements and they can enforce the Declaration. Regulations on signs have to come from one of those two sources of authority. The second one is relatively easy to determine. If the Declaration or recorded restrictions says, “No signs” or “signs are only permitted with Board approval,” then the Board’s ability to regulate all signs – including political signs – is clear.
The Board can also regulate Common Elements. This includes Limited Common Elements. Sometimes this is clear. It could be the lawns in an Association where the Unit boundaries are the exterior walls. This could be true in either a Condominium or a Planned Community – you need to check the definitions in the Declaration. Some items are Limited Common Elements defined in the Uniform Condominium or Planned Communities Acts. For example, sometimes windows and doors are Limited Common Elements. This could allow the Board to prohibit signs placed in windows or on the doors.
The second concern is to make sure that all regulations are enforced uniformly. I believe that the best way to do this is to have a Regulation or a policy ahead of time. This could be a prohibition on political signs. Or it could allow signs, but regulate the number, size, placement, removal, etc. If an Association has a political sign policy in place, then everyone knows what they can and cannot do. On the other hand, if the Board waits until a sign is in place and then tries to have it removed, the Unit Owner will often think the Board is reacting to their sign or political affiliation.
If the Association does not have a policy in place, it can still enforce its Declaration and Rules and Regulations. But I think it causes many fewer arguments if that policy is spelled out ahead of time. The Board could create a new Rule and Regulation and distribute it to the Community. Or if a Regulation already exists, it might help to remind everyone of that Regulation. Either way, this is the best time to think about this, before November comes.