Deed Restrictions May Clash With Constitutional Rights

Article Courtesy of The Tampa Tribune

By Julie Pace

March 14, 2006

TAMPA - Moving into a deed-restricted community might prevent your neighbors from painting their house plaid or parking a car on the lawn.

But in Florida, and most other states, deed restrictions don't have to guarantee your constitutional rights.

Recent news reports about a "Support Our Troops" sign that an Army wife put in front of her house in Westchase have stirred debate about whether a homeowners association can keep residents from putting up such signs, a right guaranteed by the First Amendment and upheld by the U.S. Supreme Court.

Homeowners association attorneys say Westchase's board of directors was within its rights to tell Stacey Kelley to take down the 2-foot-tall sign she put up after her husband, an Army private, deployed to Iraq in November.

The association is a private entity, said Richard A. Harrison, a Tampa lawyer who specializes in local government law. The constitution only protects citizens from action taken by the government, he said.

"No government is telling [Kelley] she can't say what she wants to say," he said.

But Barry Silver, a South Florida lawyer who represents homeowners in property-rights cases, said the contracts that associations require their residents to sign don't give citizens enough information about the rights they're waiving.

Most people don't mind giving up the freedom to paint their house certain colors, Silver said, but fewer people would sign a document that explicitly stated residents were giving up constitutional rights.

That's an argument Silver has used in court to support residents' battles with associations, and he said it could apply to Kelley's situation.

"There's a compelling argument that in the United States, these rights are basic and fundamental," Silver said. "They're so basic, you can't give them up."

Silver represented a Jupiter man who won a legal battle to fly an American flag outside his home even though deed restrictions prohibited it. Silver said although Florida courts overwhelmingly side with associations, the flag case shows residents are gaining ground.

Kelley hasn't taken legal action against Westchase, a community of about 3,500 homes in northwest Hillsborough County. Her sign still is standing, even after the association demanded its removal last week and threatened a $100 daily fine.

Kelley met with association President Daryl Manning on Friday to try to work out an agreement, but no decision was reached.

Kelley said if there is no compromise, she will consider legal action.

A decision last month by a New Jersey appellate court could make it easier for Kelley to win a legal battle.

Residents of Twin Rivers, a subdivision similar in size to Westchase, sued their homeowners association after they were told they could not have political signs on their lawns.

After a lower court dismissed the case, the appellate court overturned the decision, calling homeowners associations "constitutional actors" because they often act like local governments.

Margaret Bar-Akiva, a former Twin Rivers homeowners association board member who was among the residents fined for having a sign on her lawn, said the neighborhood isn't opposed to rules.

Bar-Akiva, who is president of a homeowners advocacy group, said residents simply don't want a contract meant to maintain property values to trump constitutional rights.

"Irrespective of what deed restrictions say, people who move into communities don't want to give up their constitutional rights," she said.

The Twin Rivers homeowners association has appealed the latest decision to the New Jersey Supreme Court. The court has not said whether it will accept the case.

Frank Askin, a Rutgers University law professor who represented Twin Rivers residents, said he is confident the state's high court will uphold the decision if it hears the case. The New Jersey statute will send a powerful message to associations in other states, he said.

"Some of them become very tyrannical," he said. "Some are run fine, but sometimes power corrupts these people."