With the nation preparing for elections in November, community associations are finding themselves in the crosshairs of a debate over when and how free speech may be exercised by residents in their communities. Impassioned residents want to express their opinions through signs, flags, bumper stickers, t-shirts and even sidewalk chalk decorations, and they may run up against restrictions in their governing documents or local ordinances. After fielding countless questions about this, I put together this blog to provide some general guidance for residents, boards and their members on this issue with a focus on politically focused signs and flags.
Let’s make sure we are all on the same page about our terms. Most governing documents do not define “signs” and “flags,” and neither term by itself is specifically defined in the North Carolina statutes governing condominiums and planned communities. These terms can generally be given their plain meaning. A sign is an object which communicates a concept or event. For example, a “lane merging” sign indicates just that. A flag is a piece of cloth or other material that stands as an emblem of a country or institution. If a piece of cloth bears a candidate’s name, it can be a sign.
State legislatures across the country and the United States Congress have seen fit to protect the right to put up signs and flags in certain circumstances, even when a particular locale or neighborhood might seek to restrict these rights. In North Carolina, the right to fly a United States or State of North Carolina flag in a planned community or condominium is protected by statute unless the declaration of covenants contains certain key phrases. If the appropriate language appears in the declaration, all flags may be prohibited, even United States or State flags. If the exact necessary language is not present, however, then the Association must allow a US or State flag of up to four by six feet. The association’s ability to prohibit flags other than those of the United States or North Carolina is broader and will depend on specific language of each community’s governing documents.
North Carolina also provides some level of protection for political signs in planned communities and condominiums, but this protection is also subject to limitation, and if the declaration contains certain key phrases, political signs can be restricted or prohibited altogether. Exactly what a planned community needs to do to restrict political signs will depend on whether the community was created before or after October 1, 2005. But not every sign you might assume would be “political” meets the statutory definition. North Carolina statutes define “political signs” as those that attempt to influence the outcome of an election, including signs that support or oppose issues on an election ballot. An issue can be related to a hot-button topic, and one that is important to a candidate or election issue, but it may still fall outside this narrow definition.
Many communities will find, on close inspection, that their governing documents do not contain the required language to outright prohibit or allow restriction of political signs. Even then, they still retain some limited authority to regulate political signs by requiring that they be placed no earlier than 45 days before the day of election, requiring removal no later than seven days after the election day, and may regulate the size and number of political signs if the association’s regulation is no more restrictive than any local regulations. If the local government in which the property is located does not regulate the size and number of political signs on residential property, the association must permit at least one political sign with the maximum dimensions of 24 inches by 24 inches on a member’s property.
Exactly when and how a given community can regulate flags, signs and political signs will depend significantly on their particular governing documents, and questions will likely need to be addressed on a case by case basis. However, based on our conversations with clients across the State, we can offer the following general recommendations.
- Many boards, wishing to support free expression and speech, have expressed an interest in abstaining from enforcing sign or flag ordinances during the pandemic, or prior to this year’s election. Boards need to carefully examine their legal authority to do this before taking this action.
- The term “political sign” under the statute is fairly narrow. Sometimes matters can be very political but not promote an issue actually on the ballot. You may want to discuss specific questions with your attorney.
- Flag and sign rules should be clearly communicated to the membership and enforced fairly and consistently. Remind your communities now what the rules are, under both the governing document and any relevant local ordinance, and that the board has an obligation to enforce the rules as written, or work to change them if warranted. Establish a warning and violation policy and communicate and enforce it uniformly across the community.
- Keep calm and carry on.
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This advice is general in nature, and the specifics of your governing documents and community may call for a different analysis. If you have questions about flags or signs, or wish to discuss the gross failures of elective government across the nation, or our nation’s desperate need to elect competent adults to run the country, please reach out to any of our community association attorneys in our Charlotte, Greensboro, Triad or Wilmington office.
Author: Harmony Taylor
Articles have been Reprinted with permission from Black, Slaughter, Black.
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