It’s summertime and it’s not only the temperature that is heating up. Although the November election is months away, judging by the campaign signs blossoming on front yards throughout the Atlanta metropolitan area, political campaigns are already in full swing. Given the number of signs already out there, your community association may justifiably be wondering if it has any control over campaign signs in the community. For those community associations with Declarations of Covenants containing restrictions regulating signs, the answer is likely yes.
It is a common misconception that the First Amendment right to free speech prevents a community association from prohibiting political signs within the community. In fact, Georgia courts, as well as other courts throughout the country, have consistently upheld a community association’s right to prohibit signs, including political signs.
For example, in the primary Georgia case on this issue, Bryan v. MBC Partners, L.P., an owner of a Lot in a community association argued that the association’s restrictive covenant that prohibited all signs except for “For Sale” signs and signs approved by the association was unconstitutional because it violated his freedom of speech. In response to this challenge, the Georgia Court of Appeals upheld the validity of the association’s restrictive covenant regulating signs.
Specifically, the Court found that while the sign was an expression of free speech that was protected by both the U.S. Constitution and the Georgia Constitution, a person could agree to waive or renounce constitutionally protected rights as long as the action did not affect the public interest. The Court reasoned that a restrictive covenant, such as the one regulating signs, constitutes an agreement that is accepted by a homeowner when he or she purchases a lot subject to the restrictive covenant. Further, such a covenant does not affect public interest because it only applied to those people who agree to be bound by its terms – people who bought in that subdivision. Thus, the Court held that when a homeowner buys a property subject to a restrictive covenant regulating or prohibiting signs, the homeowner agrees to be bound by that restrictive covenant and waives his or her constitutional right of free speech with regard to the display of signs.
Importantly, a community association can only regulate signs to the extent that its recorded Declaration of Covenant contains a provision giving it the right to do so. Most community association Declarations of Covenants do contain provisions prohibiting or limiting owners from erecting or placing signs in the community without Board or architectural control committee approval. In light of the MBC Partners case, these provisions should be enforceable in the courts to prevent owners from erecting even political signs.
That said, many community association Boards of Directors want to permit their members to display some political signs. If your Board would like to allow political signs, it can work with its community association attorney to establish a neutral political sign policy/regulation that: limits the size, number and locations of signs; requires professionally lettered signs; and limits the length of time that signs can be displayed. Such a policy can protect the appearance of the community from excessive campaign sign displays, while permitting homeowners to respectfully show their support of a candidate.