BEFORE PUTTING UP THAT ELECTION SIGN………..

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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