What Can — and Should — Associations Do About Political Displays?
Another election season is upon us, and that means political signs and flags are starting to pop up. Such displays can lead to some thorny situations for community associations. Read on to learn some of the risks associated with rules regarding political signs and flags — and how your clients can help protect themselves from lawsuits and internal divisions.
Rules Raise Problems
An association in North Carolina provides a good example of one risk. Local news outlets recently reported than an owner was notified that his Black Lives Matters (BLM) flag must be removed because it violates a rule prohibiting political flags.
According to one report, the association rule generally bars “signs that represent, promote, oppose, or otherwise reference or relate to any political party, political cause, issue, or idea.”
The owner claims the association allows flags expressing other views, including “thin blue line” and Blue Lives Matter flags in support of police and Gadsden (“Don’t tread on me”) flags. He has filed a discrimination claim with HUD.
The association apparently considers flags a form of signage for purposes of its prohibition. Other associations don’t take this approach, and it can lead to trouble.
“I’ve seen associations have issues over what is a flag versus signage,” says Alessandra Stivelman, a partner/shareholder in Eisinger Law in Hollywood, Fla., who focuses on real estate and association law.
“One association has an owner who leaves his garage door open and has attached controversial flags to the wall of the garage so anyone can see them from the exterior. The association had a restriction on signage, and it became an issue because the flags were being used as signage for political issues.
“The association ended up passing some rules that you can’t keep the garage open unless there’s ingress, egress, or other reasons for it to be open.”
Thinking About Restrictions?
Associations should always check their local laws when considering regulations regarding political displays. Different states have different laws on whether associations can prohibit such displays and how.
“We have a state statute as to what types of flags are allowed, and associations can’t prohibit those,” Stivelman says.
The fact that an association can legally prohibit some flags or signs doesn’t mean it’s wise.
A rule prohibiting political displays puts the board in the dicey and legally vulnerable position of determining what qualifies as “political.” At St. James Plantation, for example, the board initially determined that BLM was a “social movement” but later concluded it had become a “political organization.” Now it’s facing a discrimination claim.
“Determining violations can become arbitrary because no one know how to define these terms anymore, and a lot of flags have double meanings,” Stivelman says.
“This is one of the issues I bring up with boards that want to do this. What if someone wants to put up a rainbow flag? Is that political?”
Selective enforcement is another potential pitfall. “You want to avoid a situation where one person gets to fly a flag on one side of an issue — because the board thinks that position is generally accepted — and someone on the other side doesn’t,” says Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with numerous community associations.
“You really need to be consistent across the board. The key is to try to bring it back to a rules issue as opposed to something personal.”
Even sticking strictly to permitting those displays protected by state law won’t necessarily preempt problems. For example, federal law requires associations to allow the display of the American flag.
“We had a case a few years ago where an owner put ‘TRUMP’ across an American flag,” Hirzel says. “They were trying to argue that it was still an American flag and it could not be banned, as opposed to a political sign, which was not allowed.
“We ended up getting an injunction against the owner.”
Some associations have approached the issue by imposing time, place, and manner restrictions, rather than outright prohibitions. “They say you can have campaign signs or flags in the lead-up to an election,” Stivelman says, “but they have to be removed within two weeks after the election or something like that.
“But then there’s the enforcement burden and risk of selective enforcement and waiver. If they pass something like this, they have to be ready to enforce it.”
Hirzel says it’s easier from an enforcement perspective not to allow political displays at all, beyond what’s legally required. “If you do allow them, you need to be specific as to what is allowed and when, as a matter of best practices,” he says.
Stivelman agrees: “Unless it’s clearly defined, it’s just asking for more trouble, with lay people on a board trying to define what is and isn’t political.”
If an association is intent on adopting and enforcing a prohibition on political displays, managers should advise them to protect themselves. “The best thing to do if they’re not sure what’s political is to get a legal opinion so they’re shielded by the business judgment rule,” Hirzel says.