What Type of Signage Can a Condo Association Restrict?January 8, 2019 | Category: Community Association Law | Author: | Share
In the New Jersey private property context, the right to put up signage on one’s own property is directly tied to free speech rights. Restrictions imposed on signage are -- in essence -- a curtailment of free speech rights, and as such, unit owners in a condominium complex may have a legitimate action against the condominium association when a restriction goes above-and-beyond the bounds of reason.
Let’s take a peek at how it works.
Reasonable Signage Restrictions May Be Allowed
In Committee for Better Twin Rivers v. Twin Rivers Homeowners'ass'n, 929 A.2d 1060 (N.J. 2007), the New Jersey Supreme Court addressed whether the rules and regulations enacted by a homeowner’s association governing the posting of signs violated the state’s constitutional guarantees of free speech. In that case, the restrictions imposed by the Association, allowed residents to post signs in their windows and outside their homes and in their flowerbeds. The rules also prohibited signs in any other areas of the association’s property. The stated purpose for the policy was to preserve the aesthetic value of the common areas, as well as to allow for lawn maintenance and leaf collection. The plaintiffs subsequently sought injunctive relief to permit the posting of political signs on the property of community residents "and on common elements under reasonable regulation," on the basis that the current policy was unconstitutional.
The Court found that the plaintiff’s expressional activities were not unreasonably restricted. In addition, the Court found that the Association was a private community in which residents contractually agreed to abide by the rules and regulations. As such, this factor weighed against a finding that the rules and regulations violated the plaintiff’s constitutional rights. In upholding the restrictions put in place by the Association, the Court concluded that in balancing the plaintiffs' expressional rights against the Association's private property interest, the Association's policies did not violate the free speech and right of assembly clauses of the New Jersey Constitution.
Blanket Restrictions on Residential Signs are Not Allowed
General restrictions on signage are prohibited especially if those restriction implicate constitutional rights. In 2012, the New Jersey Supreme Court addressed whether a homeowners' association can prohibit residents from posting political signs in their windows or outside the doors of their own homes. In Mazdabrook Commons Homeowner’s Association, Inc. v. Khan, 210 N.J 482, 46 A.3d 507 (2012), the defendant homeowner, Wasim Khan, sued the homeowners association that had ordered him to remove signs announcing his candidacy for town council. The Association determined that the signs violated association’s rules, which banned all signs, except for “For Sale” signs.
The Court, in deciding, noted that the New Jersey Constitution guarantees individuals a broad, affirmative right to free speech. Under the Constitution, “[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.” N.J. Const. art. I, ¶ 6.
The Court further concluded that the constitutional right to free speech, in the form of property signage, may be curtailed so long as the restriction adopted by the association is reasonable (in time, place, and manner) and an adequate alternative means of communication is provided. Mazadbrook, at 506. Further, the Court also concluded that an Association may place reasonable restrictions on the size of signs. Id, at 501.
Therefore, whether a restriction is unreasonable is a determination that requires a balancing of various factors borne of the circumstances. The right to political speech, for example, will likely outweigh the need of an association to prevent such speech for aesthetic reasons. The restriction may be made reasonable if the free speech right violated is less “fundamental.” A unit owner’s right to express their hatred of automobiles may not necessarily outweigh the condominium association’s interest in curtailing such speech for the good of the community. Further, it is not merely the fact that certain speech is curtailed that may make the restriction unreasonable. A number of factors may contribute to the “unreasonable” nature of the restriction, including:
- The restriction was adopted unilaterally
- Too much speech was restricted
- No alternative, convenient, feasible means of speech was available
- The speech was limited in scope and affected only the private property at-issue
How may an Association Address Signage?
It is important to note that while the Mazdabrook and the Twin Rivers Courts addressed the constitutional issue of free speech, they both provided guidance on what an Association may do in terms of regulating signage. First, while the Mazdabrook Court found in favor of the defendant, the ruling was not a blanket prohibition on the right of an association to restrict signage within a community. As in Twin Rivers Homeowners'ass'n, the Court concluded that an Association may put in place restrictions that limit the ability of homeowners to display signage. Those restrictions however may not infringe on a resident’s constitutional right to free speech, but may be reasonable as to time, place and manner. As such, an Association may pass rules and regulations governing signage, however those rules should not unreasonably infringed on a homeowner’s constitutional rights.
Speak to an Attorney Experienced in NJ Condo Association Law for Assistance
If you belong to a New Jersey condominium association board and your organization finds itself at the center of a dispute relating to a restriction on signage, or if you are contemplating drafting rules and regulations to address signage, then we encourage you to get in touch with an attorney experienced in New Jersey condominium association law.
Here at Griffin Alexander, P.C., our team has extensive experience representing New Jersey condominium associations, individual board members, and others in complex disputes with unit owners. We understand the difficulties typical of such disputes, and how condominium associations are, often unfairly, painted as the aggressors in scenarios where they are simply enforcing the rules encoded in the bylaws. Further, we are experienced in drafting rules and regulations that will stand up to the most strenuous scrutiny.