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Election season is around the corner and you want to show support to the political party that most closely falls in line with your way of life. Can the HOA stop you from posting political signs on your property?
If your first instinct as an educated citizen is “they can’t do that, I have rights under the First Amendment!” then you are half correct. The First Amendment protects private citizens where the government restricts speech without a compelling reason to do so.
Your HOA, however, is not the government, so unless you find yourself in the rare circumstance where your HOA has assumed a “traditional government function,” the First Amendment isn’t relevant in a dispute with your HOA.
Even though the First Amendment doesn’t give you any rights against your HOA, the Davis-Stirling Act does.
The Davis-Stirling Act provides that an HOA’s governing documents (for example, the CC&Rs, Bylaws, Rules and Regulations) can’t prohibit you from posting or displaying noncommercial signs, posters, flags, or banners on or inside your separate interest. (Civ. Code, § 4710(a).) What this means is that the HOA can’t stop you from posting signs, posters, flags, or banners, as long as your sign or banner doesn’t express a message that’s designed to advance a commercial interest, such as an ad for a business AND the sign is located on your separate portion of the property. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 1271-72.) Which part of the property is your separate interest and which part is common area depends on the type of development you live in and your CC&Rs.
The provision does come with a few caveats.
The statute comes with a public health or safety provision which states that your sign cannot convey a message which threatens public health or safety, or violates a local, state, or federal law. (Civ. Code, § 4710(a).)
And although you’re free to display your sign, poster, flag, or banner on your yard, window, door, balcony or the property’s outside wall, you need to limit your political expression to the following mediums: paper, cardboard, cloth, plastic, or fabric. (Civ. Code, § 4710(b).)
So, if your HOA tells you that you can’t post your political sign on your lawn this election season, here’s a checklist:
If your political sign complies with the HOA’s governing documents and meets all these conditions, yet the HOA still insists that you take your sign down, you should call us. We’ll help develop an appropriate strategy to deal with your HOA, and help your rights as a homeowner.
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