Do your Association’s Use Restrictions Bar Political Yard Signs?

Like mushrooms after the rain, they appear out of nowhere. What? Advertising for candidates for political office, of course. While few people would want to thwart the democratic process, do we really have to look at yards with multiple yard signs for months at a time? Doesn’t the Declaration of Protective Covenants specifically say that no signs are permitted within the community? And if it does, does that mean the Association cannot let my neighbors know who my candidate of choice is? Doesn’t this restriction violate an owner’s right to free speech as guaranteed by the United States and the Georgia Constitutions?

In 1994 the United States Supreme Court issued a decision in a case from Missouri called the City of Ladue v. Gilleo. This case did not consider a restrictive covenant, but a city ordinance. A homeowner in Ladue had placed a 24 by 36 inch sign on her front lawn which said “Say No to War in the Persian Gulf, Call Congress Now.” The sign disappeared. She put up a second sign which was knocked over. When she reported these incidents to the police she was told that the signs violated a city ordinance which generally prohibited signs. She asked the city for a variance and was denied. She then filed an action against the city, the mayor and the members of the city council in Federal Court asserting that her civil rights had been violated. In response to the lawsuit, and perhaps recognizing that its ordinance was over-broad, the city enacted a new, more specific ordinance. The homeowner amended her lawsuit challenging the new ordinance as well. The trial court agreed with the homeowner and issued a ruling prohibiting the city from enforcing its ordinance. The city appealed to the court of appeals which balanced the city’s substantial interests in enacting the ordinance (interests such as obstructing views, distracting motorists, etc.) with the homeowner’s constitutional rights of free speech and concluded that the city’s interests were not sufficiently compelling to justify the abridgment of the homeowner’s rights. The U.S. Supreme Court agreed.

While the City of Ladue v. Gilleo case dealt with a city ordinance and not a restrictive covenant, it caused great concern in community association circles. See “Sign of the Times: Will a U.S. Supreme Court Decision on municipal sign restriction affect association CC & Rs?” Common Ground, September/October 1994. That article predicted that covenant restrictions of signs would be challenged in a court and warned “There is no telling how a court may rule, but one thing is certain: few associations will wish to cross that bridge. Associations should be cognizant of constitutional rights and make every possible effort to ensure that such rights are honored and protected.”

It did not take too long in Georgia for the case involving a sign restriction to be decided. (Bryan v. MBC Partners, L.P., 246 Ga. App. 549 [541 S.E.2d 124] [2000].) Skyler D. Bryan bought a home in a planned community established by MBC Partners, L.P. He hung a seven foot by three foot sign on the front of his house which stated “Before You Buy a Home In Here PLEASE See US.” MBC Partners petitioned the court for a temporary restraining order, which was granted. After an evidentiary hearing, the Superior Court enjoined the display of the sign and found that the presence of seasonal decorations and inherently temporary signs, such as a yard sale sign or a notice of a lost pet do not fall within the covenant restriction regarding signs. Interestingly, the Superior Court ruled that enforcement of the sign restriction did not violate Bryan’s free speech rights. Bryan appealed the case to the Supreme Court of Georgia, which curiously transferred it to the Court of Appeals. The Court of Appeals made short work of Bryan’s argument that the restrictive covenant violates public policy with respect to restraint of free speech. The Court wrote: “[A] person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest. This ancient rule applies to all the private relations in which persons may place themselves toward each other, and includes the waiver of constitutional rights.” In the Court’s view, Bryan contracted to abide by the restrictive covenants when he bought his property, and that in so doing, he had freely waived a constitutional right to express himself through the erection of signs on his property.

In it’s holding, the Court of Appeals in the Bryan case said that the trial court did not abuse its discretion in restraining Bryan’s violation of the restrictive covenants by hanging this unapproved non-commercial sign from his residence. This raises a question about whether other types of communications, such as political free speech would be viewed in the same way. Political speech, the City of Ladue case aside, has traditionally been treated with more scrutiny by the courts.

Because a yard sign promoting a particular political candidate is “inherently temporary” such as the yard sale or lost pet signs referred to in Bryan, and because it constitutes political speech, I believe it may well fall outside of a restrictive covenant which bans signs. Nonetheless, an Association, pursuant to its rule making authority, can certainly limit the size, number, placement of political yard signs as well as the length of time that such signs can be displayed.