Can They Have a Rule on THAT?

By Kelly G. Richardson, Esq., CCAL, HOA Homefront Column

Dear Mr. Richardson: I asked our HOA management company about owners displaying flags inside windows, on individual unit patios or their front doorways. The only rule I see is for the American Flag. Can you tell me if residents can put up political message flags? D.J., San Diego

Hi Kelly: We just received a notice that we had to remove a flag related to the presidential election. It is hanging from underside the roof eaves outside our back door. This follows another notice we received about a week ago with another “order” from our HOA - and I’d be very shocked if the other homes flying political flags, received the same notice. If you allow flags to fly in general, in the same location, wouldn’t this run into a first amendment issue? Why is it constitutionally valid to restrict a flag showing support for a president (whether it be for the incoming or outgoing president) while allowing any other form of flag/signage? T.D., Oceanside

Dear D.J. and T.D.: Civil Code Section 4710 protects the rights of residents in common interest developments (HOAs) to display non-commercial signs or banners. Such signs are protected if displayed in the “separate interest” of the property (the lot in planned developments and the unit in condominiums) or the “yard, window, door, balcony, or outside wall of the separate interest;” and are not painted on the building or made of balloons, plant material, lights or other building materials; and don’t exceed 9 square feet for signs and 15 square feet for banners. Even if it advocates an election long ago completed (Dewey and Truman!), it’s protected. The content of the sign, so long as it is not advertising for commercial gain, is not subject to limitation by the HOA. However, if a sign contains harassing content directed at one of California’s many protected classes of persons, even if the HOA can’t act, the California Civil Rights Department (formerly the Department of Fair Housing and Employment) can take action.

Even though neighbors can display all sorts of non-commercial messages, I would hope neighbors would also be considerate – even though you may have been terribly passionate about your support of a past political issue or candidate, at some point such signs can become a detraction to the look of the property. Sincerely, Kelly

Mr. Richardson, my HOA recently adopted a rule that board candidates cannot campaign door-to-door. Can my HOA legally prohibit this? Does this not violate the first amendment of Free Speech? R.Z., Oceanside

Dear R.Z.: Although the First Amendment normally doesn’t apply to neighborhood private communities, powerful laws in the Civil Code protect residents’ right to share their views. Civil Code Section 4515 protects the rights of HOA residents and owners to use common area space to peacefully assemble and discuss HOA living issues, public elections, or to invite outside speakers to address matters of public interest. The statute also protects residents’ rights to canvass and petition residents or members in a reasonable manner. The statute contains other provisions and protections worth reviewing, but as with most aspects of HOA living, it’s important to be reasonable in one’s activities. If neighbors express irritation with your actions, you may have gone too far and become unreasonable. Best regards, Kelly