Preparing for Election Season – Pitfalls of Political Signs

By Alison M. Greiner, Esq.

These days, our culture and society are becoming increasingly polarized, especially when it comes to national and local elections. Each election brings a surge in activism and citizens strongly advocating on opposite sides. Additionally, these days, activism is not only linked to an election, but to world events that spark strong emotional reactions. Recent examples include the United States Supreme Court’s opinion to overturn Roe v. Wade, mass shootings in New York, Texas, and Illinois, and the events surrounding George Floyd’s death. These events all led to a sharp increase and significant amount of political demonstration and activism by people throughout the country. People show their support or contempt by holding rallies, demonstrations, parades, protests, bumper stickers, and of course, displaying signs, flags, and banners wherever possible, including at their home.

Homeowners association boards should understand their members' rights to display political signs, flags, and banners. Civil Code §4710(a) provides that the governing documents of an association may not prohibit posting or displaying of noncommercial signs, posters, flags or banners on or in a member’s separate interest, except as required for the protection of public health or safety or if the posting or display would violate a local, state, or federal law.

Commercial signage is one that displays a message on behalf of a company or individual with the intent of convincing the audience to purchase a specific product or utilize a particular service, generally to make a profit. Signs, flags, and banners that do not fall into this category are considered noncommercial, including displays of a political nature.

It is important for boards and community managers to be aware that political signs, flags and banners are considered “noncommercial” because this distinction has a direct impact on the association’s ability to regulate such displays. Furthermore, the increase in political activism within communities urges the question of whether a political sign, flag or banner is linked to an election or simply an expression of their political opinion. This distinction is important because it will affect the

type of limitations boards are permitted to impose on those displays.

Although §4710 does not explicitly state that associations may restrict the duration a political sign, flag or banner is posted, applying different methods of statutory interpretation all lead to the conclusion that reasonable limits on the number, location, and duration of such displays are enforceable. Civil Code §1940.4 allows landlords to establish a reasonable time period for tenants’ posting and removal of political signs (at least 90 days prior to the date of the election or vote and ending at least 15 days following the date of the election or vote) in the absence of a conflicting local ordinance. Similarly, Civil Code §799.10 has the same limitation on mobile home park residents. The absence of specific time periods in Civil Code §4710 suggests that homeowners associations can adopt rules addressing the duration that political signs can be displayed. What time period is going to be considered reasonable is up for interpretation, however, rules that are similar to the limitations contained in Civil Code §1940.4 and Civil Code §799.10 is a good starting point.

Since elections have a set date, it is reasonable for rules to set forth a period before and after the election to display signs, flags, and banners related to the election. When the election is over, there would normally be no reason for a sign, flag or banner to remain posted and it would be reasonable for the association to require such displays to be removed. The same analysis is not true for political signs, flags, and banners unrelated to a specific election, although such displays could be subject to other reasonable protection of public health, safety or to prevent violations of a local, state, or federal law are also permitted. Generally speaking, constitutional free speech protections do not apply to homeowners associations because they are private communities. However, since free speech is an integral and important right in our society, it should always be taken into consideration when evaluating whether a restriction on the display of signs, flags,

“While political displays linked and banners is reasonable. to an election would be subject Some political signs, flags, and banners are expressions to limitations on their duration, of political opinion and relevant throughout the political displays that are not entire year, not just during an election. Consequently, linked to an election and are while political displays linked to an election would expressions of opinion would be subject to limitations on their duration, political dislikely not be subject to limitations plays that are not linked to an election and are expreson their duration.” sions of opinion would likely not be subject to limitations restrictions. Civil Code §4710 allows on their duration. governing documents to restrict the size and materials for noncommercial Alison M. Greiner, Esq., signs, posters, flags, and banners. In Adams | Stirling, PLC. Adams addition, although not explicitly stated Stirling is California’s premier in the statute, reasonable restrictions law firm dedicated to on the number of signs, flags, and residential and commercial banners and how they are displayed or posted would also likely be enforceable. associations. Alison can be reached at (800) 464-2817 and/or agreiner@adamsstirling.com. Finally, prohibitions necessary for the