Ask a real estate pro: Can HOAs ban politicking?

Q: With the upcoming elections, our association is considering banning politicking in our community. They want to stop everything from door knocks to lawn signs, all in an effort to “keep the peace.” While I understand that community harmony is important and this will be another controversial election, I don’t think they are allowed to do this. Is this legit? —Catherine

A: Looking back over the three presidential elections I have been writing this column, this always seems to become an issue as the primaries are wrapping up.

Unfortunately, the issues surrounding political speech in community associations are more complex than they seem, and association leadership would be wise to tread cautiously.

While freedom of political speech is an important right, community associations, being non-governmental, have some authority in these matters under certain circumstances.

Communities have some flexibility regarding political signs and can restrict or prohibit all types of signs if the community’s documents explicitly permit them.

However, if your association’s rules allow for signs to be displayed, then all signs, whether political or not (like a “Florida Panthers” lawn sign), should be equally permitted. Of course, this does not necessarily apply to vulgar or abusive signs.

It is important to remember that political campaigning is not the same as commercial solicitation. If your community is not gated, it should not restrict door-to-door campaigning that is otherwise legal in your area. However, visitors should request permission to enter if the community is gated.

While lawyers practicing this type of law may disagree on this topic, the reality is that denying this permission could lead to an expensive lawsuit, which should be avoided whenever possible. Considering the relatively short political season, it’s simply not worth the risk.

The best practice for community associations is always to remain neutral when creating rules or restrictions. Regardless of their personal beliefs, however strong, board members should only be on the side of their community and its residents and never choose sides in a political debate.

If one campaign or viewpoint is allowed, all parties and perspectives must be treated equally.

This is an area where the association leadership should consult with their legal team before taking action.

Board-certified real estate lawyer Gary Singer writes about industry legal matters and the housing market. To ask him a question, email him at gary@garysingerlaw.com, or go to SunSentinel.com/askpro.