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QUESTION/ANSWER BY JOHN H. GETTINGER, ESQ.

Question:

Our HOA covenant is at least 25 years old and states no signs are allowed on any properties except contractors signs and realty signs. Are we able to restrict election candidate signs or is there a law that states we may not enforce that?

Answer:

In most states, your homeowners association can enforce its ban on the display of political signs based upon the covenant. Although cities and other governmental entities are constrained by the First Amendment in regulating political signs, there is no similar restraint imposed on private homeowners associations unless "state action" can be found. Homeowners associations are private entities seeking to enforce covenants against homeowners who are private persons.

These homeowners, when purchasing a home in a homeowners association, contractually agree to abide by various covenants, including the restriction against political signs, as a condition of their purchase, thereby relinquishing their freedom of speech concerns.

"State action" may be found, which could subject the homeowner's association to First Amendment rights, under circumstances where the homeowners association is a mixed use (residential and commercial) community which contains a "business block" which is open to the public. However, most private residential communities do not contain business blocks and are not open to the public.

Some states (such as Texas) have enacted statutes which provides that homeowners associations may not enforce or adopt restrictive covenants that prohibit property owners from displaying political signs on their property. As such, each state's statutes must be reviewed to determine if such state has adopted a similar statute.

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