As we all know, 2013 is an election year in which voters in New Jersey will have the opportunity to elect a U.S. Senator, Governor, state legislators, county freeholders, and some members of municipal governing bodies. As we also know, elections bring electioneering, including the proliferation of political signs. So, this is a good time to review New Jersey law as it relates to condominium and community association restrictions on the posting of signs within their planned unit developments, particularly political signs.
In June of 2012 the New Jersey Supreme Court, in the case of Mazdabrook Commons Homeowners Association v. Khan, addressed the question of whether a homeowners association can prohibit its residents from posting political signs in the windows of their own homes. In that case, Mr. Kahn, a resident of the HOA, posted two signs in support of his candidacy for Parsippany Town Council, one inside his window and one inside his glass door. He was promptly ordered by his HOA to remove the signs as the HOA’s rules banned all signs except one “For Sale” sign. Mr. Kahn complied, but later sued the Association for violating his state constitutional right of free speech.
The Court noted that it had previously (in 2007) examined whether a homeowners association can restrict the right of its members to post signs in a case commonly known as Twin Rivers. In that case, the Court ruled that such restrictions are constitutional and thus enforceable if they are “reasonable as to time, place and manner”. The Court found that the Twin Rivers restrictions, which permitted signs to be placed in the home’s windows and in flower beds adjacent to their home, were in fact reasonable and thus enforceable.
The Court in Mazdabrook, however, distinguished the sign restriction in that HOA (which banned all signs except one For Sale sign) with the sign restriction in Twin Rivers (which allowed two signs of any type). It found that “political speech in support of one’s candidacy [or any other person’s candidacy] for public office is fundamental to a democratic society. It is protected by the State Constitution, which affirmatively guarantees the right of free speech to all citizens…”, regardless of the HOA’s governing restrictions which each resident agreed to upon moving into the HOA. The Court found the Mazdabrook sign restrictions unconstitutional and unenforceable. Importantly, however, the Court went on to hold that HOA restrictions on signs, even political signs, may be upheld and enforceable, as long as they are reasonable as to time, place and manner, and as long as the HOA has adopted a written rule on the posting of signs.
So, an HOA rule banning all political signs is unconstitutional and unenforceable. But an HOA rule reasonably restricting the posting of political signs, such as allowing one or two standard size signs to be displayed in the window or door of a condo or townhome until the day after the election, would likely be found constitutional and thus enforceable.
If you have specific questions about this issue or other HOA-related issues, don’t hesitate to contact our office to speak to one of our attorneys.