I recently attended s “Meet and Greet” for a school committee candidate in my town. During the “Q&A” I was surprised to hear one person say that her homeowners association does not allow any signs. Another person commented that the town could not prohibit signs on private property. While as an association attorney I should never miss an opportunity to educate the public this was not the setting to be giving what could be viewed as legal advice.
However, it did serve to remind me that there is a misunderstanding as to whether unit occupants are allowed in community association. This is only heightened by the current state of protest sweeping our country but again, much as that Meet and Greet, this is not the appropriate forum to discuss the political aspect of these protests. Rather, I would like to simply answer any questions about the permissible forms of governance of one particular type of protest…signage within community associations. Given that the political season is underway; even though it is not June signs are “popping up all over.”
As we all know, community association homes, whether a townhouse, single family home, multi-unit building or any other form of congregate living, are on private property. As private communities, they are governed by documents which contain various restrictions on permissible activities such as maintaining dogs. Most community associations have some type of restrictions governing the placement of signs, flags, and banners from being placed on common areas, even if exclusive use, and in windows where they can be seen from outside.
This type of provision in the governing documents bumps up against the First Amendment of United States constitution which states “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” While constitutional rights exist in community associations the exercise of free speech, particularly in the political arena, is one that is particularly cherished.
Community Associations, while analogized to municipalities, are generally not considered a “state actors” for purposes of the application of constitutional rights, including the First Amendment. Arguably, they can restrict speech that the government cannot suppress, and enforcement of association covenants does not involve action by the state. This is because “the fundamental nature of the constitution is to govern the relationship between the people and their government, not to control the rights of the people in connection with each other. It is beyond the scope of this article to start listing the historical legal background for the recognition of free speech rights within community associations which simultaneously restricted property rights of owners; suffice it to say that this began in 1940.
Fast forward to the 2021 case of Jess v. Summer Hill Estates Condominium Trust. Ms. Jess was ordered to remove her sign or have substantial penalties assessed to her unit. Summer Hill Estates Condominium rules stated that signs or decorations expressing “patriotic, civic, moral, political or other views could not be placed in the common area including the exterior doors and walls of their units as well as the garden beds and grassy areas outside their units without the prior written permission of the Trustees.” However, the rules did not provide any standard to govern the Trustees’ exercise of their discretion as to what kinds of expression would be permitted or denied. There were already unit owner signs expressing support for graduating high school seniors, frontline medical workers and military service members. However, when Ms. Jess placed a “Black Lives Matter” sign in the common area garden in front of her unit she was ordered to remove the sign or face severe daily fines. The ACLU, on behalf of Ms. Jess, filed a complaint, seeking to hold the condominium rules unlawful as violating the Massachusetts Declaration of Rights which provides that “the right of free speech shall not be abridged” and prevents restrictions on free speech by private actors (i.e. community associations.). The ACLU noted in the complaint that there was precedent in Massachusetts for providing protection for free speech under the Massachusetts constitution as much as under the First Amendment including protecting the expression of one’s political views at one’s home. However, it was also noted that if there is any effort to restrict the exercise of this right the restriction or regulation will be subject to a “strict scrutiny” test as to whether the restriction is justified by a compelling interest and narrowly tailored to serve that interest. Without such standards, it was argued, restrictions on speech that do not contain concrete standards to guide the discretion of the decision makers violate the First Amendment and the Massachusetts Constitution as there are no guard rails to prevent arbitrary and content-based restrictions on free speech. Ultimately both sides entered a final judgment stating that the association would allow unit owners to post non-commercial, constitutionally protected signs at or near their respective units without prior permission of the Board but could be subject to reasonable written standards as to size and location.
While the Jess decision is not a decision of the Supreme Judicial or Appeals Court, I suggest that its holding is a lesson that all associations should heed. Of course, there is always room for differences of opinion as to reasonable standards … What size is appropriate? What location? Can signs be illuminated? How long can they remain?
As always, if you have any questions, before risking a mistake that could result in litigation, it is important to consult with an attorney who can provide guidance in this area.
Cpy of the Decision Jess v. Summer Hill Estates Condominium Trust
Written by
Ellen Shapiro
Up Next...
