A seasonal question: Can an HOA ban political signage?
Q: Can you please address the issue of political signage posting in an HOA in Illinois. Can an HOA outright ban political signage during campaign season? Does Illinois have any laws governing the matter? Are there differences between condominium HOAs and community HOAs?
A: Political signage with community associations is particularly relevant with the upcoming election season. Illinois has not enacted a state statute specifically saying that every community association (condominium or townhouse/homeowner) must permit political signs during a specified period before an election. Although, many Illinois municipalities have ordinances regarding political signage during election season and community associations must be aware of those. There are other states that have very specific statutes saying that associations cannot prohibit political signs during a particular period before and after an election.
For Illinois community associations, the legal issues involved in restricting political signs are generally analyzed within the context of protected political speech under the First Amendment to U.S. Constitution. As a general rule, an outright ban of political signs by a community association is legally risky and may very well be unenforceable.
That said, before an association restricts political signs, it’s important for the board to work closely with the association’s attorney and management to develop reasonable rules and regulations that will comply with current legal guidelines.
For Illinois condominiums, the key statute is Section 18.4(h) of the Illinois Condominium Property Act. It provides that a condominium board cannot adopt a rule that “may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution.” Applying this statute, Illinois courts have recognized that political expression within a condominium association is protected under the First Amendment. Accordingly, a blanket prohibition on political expression (such as political signs) presents a substantially greater legal risk than adopting reasonable, content-neutral regulations for displaying signs.
Typical Illinois single-family HOAs or townhouse associations are governed by the Common Interest Community Association Act (CICAA). CICAA does not have a direct counterpart to Section 18.4(h) of the Condominium Act. Therefore, the specific provisions of the declaration and bylaws become more important in a single-family HOA or townhouse analysis. Importantly, the absence of any specific CICAA does not mean that a townhouse or homeowners association automatically has unlimited authority to prohibit political expression. There are still considerable legal pitfalls associated with townhouse or homeowners associations unreasonably restricting political signage.
Notwithstanding these legal and statutory differences between Illinois condominiums and townhouse or homeowner associations, we encourage boards for all types of community associations to focus on reasonable rules and regulations for political signs.
The best approach is content-neutral regulations — what lawyers often refer to as time, place and manner restrictions. For example, rules that reasonably limit the number of signs, size and dimension, location and length of time are the most common and acceptable restrictions.
One of the main considerations for both types of associations is the location of political signage and whether the area is owned by the association or an individual owner. It’s well established that political signs may not be placed in association-owned common areas. A condominium association’s ability to regulate a sign on a common-element lawn, common hallway, association-owned landscaping, common exterior wall, may be materially different from its ability to regulate a sign located inside the owner’s unit or in an area legally belonging to or exclusively serving the unit. As a result, condominiums often address reasonable restrictions concerning signs in windows, balconies, lawns, etc., all depending upon ownership/control of those areas.
Ultimately, when it comes to restricting political signs, the important distinction is that the association is regulating the manner of displaying the sign, rather than suppressing the political message itself.
• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at condotalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.