Condominium and homeowner associations in Washington and Oregon often deal with free speech issues.  Political signs are perhaps the most common issue. It is commonly misunderstood that owners have a right to display political signs.  Generally, there are no free speech rights in community associations unless granted under the governing documents or state law.  There are a few exceptions, though.

Some states, such as Maryland, have enacted statutes authorizing owners in community associations to display “candidate” signs. (Maryland Code Annotated, Section 11-111.2(c)). The Maryland statute specifically states that community association CC&Rs and rules may not prohibit the display of signs advocating for political candidates.  Illinois has adopted a similar statute. (765 ILCS 605/18.4(h)).

Another exception is the Federal Flag Act. (18 USC 700, et. seq.). The Act prohibits community associations from barring the display of the American flag.  Thus, if the association’s governing documents prohibit flags, that provision in the governing documents is void.

Free speech rights in community associations were given articulate treatment in a New Jersey Supreme Court case. (Committee for a Better Twin Rivers vs. Twin Rivers Homeowners’ Association, 192 NJ 344 (2007)). While the case is not binding in other jurisdictions, the reasoning and basis for the Court’s decision would likely be followed by most state courts. I’m attaching a copy of the decision to this letter. 

I’ll explain the facts and discuss the outcome: 

Twin Rivers is a planned community consisting of condominiums, townhouses, single family homes and commercial buildings.  The community consists of nearly 10,000 residents. The Twin Rivers Homeowners’s Association is a nonprofit corporation created to oversee the affairs and operations of the community.  Each owner, upon purchasing property in the community, becomes a members of the Association. 

In early 2000, a group of owners formed the Committee for a Better Twin Rivers.  The committee repeatedly placed signs throughout the community, and the Association promptly removed the signs each time.   The Committee filed a lawsuit against the Association to invalidate its rules governing signs on the basis of free speech protection.  The Association’s sign rules prohibited political signs on individual owner’s property and in the common areas of the community. 

The case went through the trial court, the Court of Appeals, and ultimately to the New Jersey Supreme Court. In summary, the Court held that in order to enforce constitutional rights, there must be “state action”. This means that a governmental actor or entity must attempt to curtail an individuals free speech rights in order to trigger enforcement.  Here, the court held that the Association’s enforcement of its sign rules did not constitute “state action” and that the owners’ expressional activities were not unreasonably restricted. 

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