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BEFORE PUTTING UP THAT ELECTION SIGN………..
By
Eric Glazer, Esq.
Published August 10, 2020
No matter who you’re voting for in November, there is no doubt
that the eyes of the nation are on Florida. Some of you might
be eager put up your lawn signs or even signs in your window.
But before you do………. by choosing to move into a condo or an HOA,
know that you do so at your own risk.
There’s no doubt that the First and 14th Amendments
protect your freedom of speech, meaning that the federal and
state government cannot prevent your freedom to endorse the
candidate of your choice by having a sign. The problem is, your
condominium association and HOA are not considered “the state”
or “the federal government.” On the contrary, they are private
actors that you voluntarily entered into a contract with when
you bought your home. If that contract, meaning your
declaration, contains clauses that prevent signs, those
restrictions are enforceable under a contract law theory. This
is simply what you agreed to.
I have not seen a case in Florida that is on point. However,
courts in Kansas and Pennsylvania have ruled that community
associations may restrict the placement of political signs in
private communities.
However, the problem that an association may have is if the
governing documents prevent any signage, yet the association
turns a blind eye toward owners putting up signs indicating they
have installed a security system, or the name of the contractor
working on their home, or even “For Sale” signs or signs that
say “Merry Christmas.” These are signs too, and if the
association is going to allow these type of signs despite a “No
Signs” provision in the governing documents, the association
would be hard pressed to prevent political signs.
For example, in Prisco v. Forest Villas Condominium 847
So.2d 1012 (4th DCA, 2003) the association documents
indicated that pets are not allowed except for fish or birds.
Prisco was sued for having a dog. Her defense was that the
association was selectively enforcing the documents against her,
because they were allowing other owners to have cats. The trial
court said cats and dogs are different and thus entered judgment
against Prisco. On appeal, the appeals court said the fact that
cats are different from dogs makes no difference. What does
matter is that neither a cat nor a dog is a fish or a bird, so
both should be prohibited. Restrictive covenants should be
narrowly construed, but should not be construed in a manner that
would defeat the plain and obvious purpose and intent of the
restriction. See generally Brower v. Hubbard, 643 So.2d 28, 29
(Fla. 4th DCA 1994). In this case, the clear purpose of the
restriction is to prohibit all types of pets except fish and
birds. The trial court's interpretation defeats that plain and
obvious purpose. Thus, with regard to this issue, Prisco has
shown that the Board is selectively enforcing the restriction
and the summary judgment in favor of Forest Villas must be
reversed.
So, as long as a political sign is a “sign” a unit owner will be
allowed to say the association is selectively enforcing the
documents against me if they attempt to force me to remove my
political sign, if the association is simultaneously allowing
any other type of signs including the ones we mentioned. Either
way, GET OUT AND VOTE!
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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