Whose Yard is it Anyway?

Can associations restrict the free speech of owners in their own front yards?

By Sarah A. Kyriakedes, Esq. 

This article first appeared in the Fall 2021 Issue of The Communicator here.

For individuals residing in common interest developments, the constitutional right to free speech is not applicable. While many believe that they have a right to freely express themselves by posting signs, banners, flags, and religious symbols on their own properties, they may be surprised to learn that their homeowners and condominium associations are not bound by the free speech clauses contained within the federal and state constitutions. Though, in California, this does not mean that residents automatically lose their free speech rights when they move into their associations, because the Davis-Stirling Act safeguards many of the same rights that are enjoyed by citizens residing outside of common interest developments.

CONSTITUTIONAL RIGHTS TO FREE SPEECH

Both the state and federal constitutions prohibit state actors (i.e., the government) from restricting free speech, but these constitutional protections do not generally apply to purely private actors, like homeowners associations and condominium associations. Throughout the years, numerous exceptions to this general rule have been made. In Marsh v. Alabama (1946) 326 U.S. 501, the United States Supreme Court held that a "company town," even though privately organized, provided many services typically reserved to a city; therefore, the private town was bound to abide by the First Amendment. The California Supreme Court has gone even further to hold that the state constitution affords broader protections than the U.S. Constitution by protecting free speech rights on privately owned property when such property is freely and openly accessible to the public. (Golden Gateway Center v. Golden Gateway Tenants Association [2001] 26 Cal.4th 1013.) Despite these rulings, most common interest developments will continue to be viewed private actors that are not subject to the same constitutional restraints as the government, because they are private organizations that are not freely and openly accessible to the public.

STATUTORY FREE SPEECH SAFEGUARDS

Regardless of whether the federal and state constitutional protections apply, the California legislature has enacted various statutes that prevent common interest developments from infringing on the free speech rights of their members. These state protections are consistent with our country’s "special respect for individual liberty in the home [which] has long been a part of this Nation’s culture and law…" (City of Ladue v. Gilleo [1994] 512 U.S. 43, 44.). These statutes vary depending on the type of speech at-issue: (i) noncommercial speech; (ii) commercial speech; (iii) religious symbols; and (iv) the display of U.S. flags.

NON-COMMERCIAL SIGNS

California Civil Code, section 4710 states that associations may not prohibit residents from posting or displaying noncommercial signs, posters, flags, or banners (collectively referred to as "signs") on their separate interest properties. However, the statute provides that signs may be banned if posting or displaying the same would violate any local, state, or federal law or jeopardize the public health or safety. These exceptions would most likely allow associations to prohibit residents from posting signs with obscenity or with language that is likely to incite violence.

The statute goes on to list acceptable signage materials (i.e., paper, cardboard, cloth, plastic, and fabric are acceptable, but not lights, roofing, siding, paving materials, flora, balloons, or any other similar building, landscaping, or decorative component or include the painting of architectural surfaces), and it also sets forth acceptable locations for posting (i.e., yard, window, door, balcony, or outside wall of the separate interest). The statute only permits the posting of signs on members’ separate interest properties; therefore, residents of condominium units are not likely permitted to post on their balconies, doors, yards, or walls as those areas may be considered a part of the common area or exclusive use common area, depending on the association’s unique condominium plan. In some cases, condominium residents may only be able to post noncommercial signs on their windows.

Finally, the statute permits associations to impose size restrictions: associations may ban noncommercial signs and posters that are more than nine square feet and noncommercial flags or banners that are more than 15 feet. The statute does not contain any language regarding the number of signs, but associations may always impose "reasonable restrictions" on the same. Restricting the number of signs would likely be viewed as reasonable, as such a restriction is consistent with the statute’s other regulations on size and location.

COMMERCIAL SIGNS

The Davis-Stirling Act makes a clear distinction between commercial and noncommercial signs. Commercial signs are typically defined as those displaying messages for the purpose of making profits; this type of speech is historically entitled to less protection under the law.

The Davis-Stirling Act still limits the authority of associations to ban commercial signs, specifically those advertising property for sale or rent due to the restrictions against alienability. Pursuant to the Civil Code, sections 712 and 713, associations may impose reasonable restrictions on the display of real estate signs for aesthetic purposes. These restrictions can relate to the dimensions, design, location, duration, quantity, and content of such signs. Like the statute pertaining to noncommercial signs, residents are only permitted to post commercial signs on their separate interest properties, so residents within condominium developments may be limited to posting such signs on their windows.

RELIGIOUS SYMBOLS

Since January 1, 2020, associations have not been permitted to ban the display of certain religious items on entry doors. Civil Code, section 4706 prohibits associations from limiting or prohibiting the display of one or more religious items on the entry door or entry door frame of a member’s separate interest. The California legislature passed this statute in response to housing providers across the nation demanding that residents remove Jewish mezuzahs from the doorpost of their homes. The Civil Code broadly defines religious items to include any item that is displayed because of a sincerely held religious belief. As such, this statute protects a resident’s right to display other religious items, like Christian crosses and potentially Christmas wreaths, but limits such displays to entry doors or door frames.

The statute also permits associations to regulate the size of the religious items on display (i.e., the total size may not be greater than 36 by 12 square inches, provided that it does not exceed the size of the door), and it allows associations to require that residents remove the items if necessary for association maintenance, repair, or replacement of the entry door or door frame. Finally, the statute permits associations to impose restrictions against the display of such religious items if the display threatens the public health or safety; prevents the residents from opening or closing the entry door; violates any federal, state or local law; or contains graphics, language, or any display that is obscene or otherwise illegal.

U.S. FLAGS

Both state and federal statutes protect citizens’ rights to display the American flag on their properties. Civil Code, Section 4705 and the Freedom to Display the American Flag Act permits homeowners to display American flags on their separate interests and the exclusive use common areas (i.e., balconies, patios, etc.). The state law clarifies that the U.S. flag must be made of fabric, cloth or paper and must be displayed from a staff or pole or in a window. This statute does not apply to depictions or emblems of American flags made from lights, paint, roofing, siding, paving materials, flora, balloons, or other similar materials. Like other statutes dealing with a homeowner’s right to display signs on separate interest property, associations may ban the display of American flags if necessary to protect the public health or safety. While both aforementioned statutes are specific to American flags, the display of foreign flags would be protected as noncommercial signs, as discussed earlier.

Although homeowners may give up some of their rights when moving into common interest developments, the California Legislature has ensured that they do not lose their historically protected freedom of speech. The Davis-Stirling Act contains various statutes that safeguard some of the same free speech rights protected by the state and federal constitutions. Therefore, California citizens residing in common interest developments can rest assured that their associations may not abridge their right to freely express themselves on their own properties.

Sarah A. Kyriakedes, Esq. is dually licensed as a member of the California State Bar and North Carolina State Bar. She is an attorney at the Tinnelly Law Group, where she provides general legal counsel, dispute resolution and litigation services to common interest developments in California. Kyriakedes’ practice focuses on resolving disputes between associations and their members and, when necessary, litigating cases to enforce members’ obligations to abide by the association’s governing documents. Prior to joining the Tinnelly Law Group, she gained extensive trial experience as an assistant district attorney in North Carolina.