1. Signs and Flags. Homeowners have the right to display noncommercial signs, flags, and “for sale” signs on their property, provided the declaration may set reasonable limits so long as, for three months before any election or other vote held by an association, government, or other entity with geographic territory overlapping any part of a commoninterest community, the association shall not forbid display of reasonable-size signs relating to the election or vote.

2. Neighbor Contacts. Homeowners have the right peacefully to visit, telephone, petition, or otherwise contact their neighbors; provided the declaration may set reasonable restrictions if it permits some weekday afternoon and some weekend hours for such neighbor contacts.

3. Peaceful Assembly. Homeowners have the right to invite guests to assemble peacefully on their property, provided the declaration may set reasonable limits to protect nearby homes.

4. Common Property. Where an association makes any part of common property available for use by homeowners:

a. the governing documents shall state any charge for homeowners’ use, which shall not exceed the association’s marginal cost for use, as well as any other restrictions on such use, which shall be content-neutral and otherwise reasonable; and

b. the governing documents shall not unreasonably restrict homeowners’ rights to invite public officers or candidates for public office to appear or speak in common areas, or unreasonably restrict lawful uses relating to an election or other vote held by the association or any government or quasi-governmental entity with geographic territory overlapping any part of the common-interest community.

5. Discrimination Prohibited. Restrictions on signs and flags, neighbor contacts, peaceful assembly, common property, or other self-expression shall not differ based on the content of a view sought to be expressed by a homeowner. If an association allows homeowners to express views on a topic, in a newsletter or other forum, other homeowners equally shall be allowed to respond with differing views.

6. No Forced Membership in Another Organization. No association may force a homeowner to join a separate organization unless (a) expressly authorized by the declaration before the homeowner’s purchase or (b) associations merge in compliance with state law.

7. No Mandatory Charitable or Political Funding. Assessments or other mandatory dues

from association members may not be used by the association for charitable or political

purposes. Any solicitations for charitable or political purposes by an association will be

conducted separately from the billing for customary assessments of fees, and clearly be

designated as voluntary.

8. Ultimate Limit on Governing Documents. Governing documents must be created in

compliance with law, and not include terms that are illegal or unconstitutional, or that

violate public policy. Terms that are invalid because they violate public policy include,

but are not limited to, terms

a. that are arbitrary, spiteful, or capricious;

b. that unreasonably burden a fundamental constitutional right;

c. that impose an unreasonable restraint on alienation; [109]

d. that impose an unreasonable restraint on trade or competition; or

e. that are unconscionable.

Discussion

The United States has a long tradition of protecting, indeed encouraging, rights to free speech, petition, assembly, and access to public property. Both to enable self-expression and to promote democracy itself, the federal Constitution secures these rights against government restrictions and discrimination. The Constitution maximizes protection for people’s use of their own home, reflecting widely accepted values of privacy and independence. [110] Similar protections exist in state constitutions.

By extending such protection for important rights, the model statute recognizes similarities of associations and traditional governments. Like traditional governments, associations start from the central mandate that, by virtue of residence, homeowners pay mandatory assessments akin to taxes, in return for which they receive services. Indeed, many associations have replaced-- sometimes have statutory mandates to replace--traditional governments in providing core services such as police protection, garbage collection, road repair, and recreation. In addition, associations typically regulate both structure and use of property in a manner akin to zoning, impose rules for use of common property, and elect the persons who serve as directors.

Over the past decade, legislative studies increasingly recognize the governmental nature of associations. [111] Thus, many reasons to secure individual rights against governments also apply to associations.

[109] Alienation is a legal term, referring to the right to sell property. Restraints on alienation limit the ability to sell.

[110] City of Ladue v. Gilleo, supra n.3 & infra n.116; Carey v. Brown, supra n. 99.

[111] See e.g., Texas Senate Committee on Intergovernmental Relations, Interim Report, at 38–39 (78th Legislature, October 2002) (“previous study was correct in stating that [associations] are ‘de facto political subdivisions,’ which is increasingly evident as developers are encouraged by cities and counties to provide services that were the responsibility of local governments in the past”), citing Texas Senate Interim Committee on State Affairs, Report, at 16 (11/2/1998); New Jersey Assembly Task Force to Study Homeowners Associations, Final Report at 2–3 (1/8/1998) (also recognizing “the increasingly governmental nature of the duties and powers ascribed to the homeowners’ association board,” calling them “quasi-governmental”); see also Committee for a Better Twin Rivers, supra n.7, 890 A.2d at 952-56 (finding associations “constitutional actors”, citing the Task Force); G. Staropoli, The Case Against State Protection of Homeowner Associations (Infinity Publishing.com, 2003) (arguing associations are state actors so federal constitutional protections apply).

The need for this protection also reflects the nongovernmental roots that associations have incontracts; that is, deriving their power only by consent of homeowners. As discussed in Section 104, The Right to Be Told of All Rules and Charges, the governing documents should be interpreted to give maximum liberty to homeowners.

To the extent that associations become “governments,” a broad range of federal constitutional requirements would apply by virtue of the Fourteenth Amendment. [112]  A few cases recognize the possibility to secure similar rights under state constitutions. [113]

Even if associations are not traditional governments, the model statute recognizes the need to

secure certain vital rights of individual autonomy. These include rights that promote discussion

of important issues that no association should compel homeowners to waive. [114]

The United States Supreme Court explains why the Constitution denies local governments the

authority to forbid homeowners’ use of noncommercial signs:

a venerable means of communication that is both unique and important … [for] political, religious, or personal messages. Signs that react to a local happening or express a view on a controversial issue both reflect and animate change in the life of a community. Often placed on lawns or in windows, residential signs play an important part in political campaigns…. Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location such signs provide information about the identity of the “speaker.” [115]

In common-interest communities, as in governments, any legitimate interest in restricting signs

can be fulfilled by reasonable time, place, and manner regulations.

[112]  Marsh v. Alabama, 326 U.S. 501 (1946); Hudgens v. NLRB, 424 U.S. 507 (1976).

[113]  E.g., Committee for a Better Twin Rivers, supra n.6, 890 A.2d at 954-64; Guttenberg Taxpayers and Rentpayers Ass’n v. The Galaxy Towers Condominimum Ass’n, 297 N.J.Super. 404, 409-11, 688 A.2d 156 (Ch. Div.) (association cannot be “political isolation booth”), aff’d o.b., 297 N.J.Super. 309, 688 A.2d 108 (App. Div. 1996), certif. den. 149 N.J. 141, 693 A.2d 110 (1997); Laguna Publishing Co. v. Golden Rain Foundation of Laguna Hills, 182 Cal. Rptr. 813, 828 (1982); Park Redlands Covenant Control Comm. v. Simon, 226 Cal. Rptr. 199 (1986); Jones v. Memorial Hosp., 746 S.W.2d 891, 893-94 (Tex. App.--Houston [lst Dist.] 1988, no writ) (“it appears that a private entity, even if not strictly engaged in ‘state action,’ may be subject to the enforcement of first amendment rights, if its functions are essentially public in nature”), citing RESTATEMENT (SECOND) OF TORTS § 874A (1979).

[114]  Committee for a Better Twin Rivers, supra n.6, 890 A.2d at 960-64. See also Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1415 (1989) (limits to requiring a property buyer to give up constitutional rights); 765 Ill. Comp. Stat. Ann. 605/18.4(h) (“no rule or regulation may impair any rights guaranteed by the First Amendment”); Restatement § 3.1 (constitutional principles inform limits on association authority).

[115]  City of Ladue v. Gilleo, 512 U.S. 43, 54-57 (1994).

The model statute’s protection for noncommercial signs and flags tracks California law, with signs and flags intended also to encompass posters and banners stated in that statute. [116] The California statute adds detail regarding reasonable time, place, and manner restrictions that may be helpful to minimize disputes, but the model statute takes no position on specifics used there.

The specific protection of elections and voting reflects our democratic values. For similar reasons, associations should not totally ban homeowners’ signs critical of their associations. The model statute also protects the right to “for sale” signs because of the economic need to get the best price for a home. As the Supreme Court has recognized, “for sale” signs provide a particularly important way for homeowners to advertise, and no sufficient reason supports total prohibition of such signs. [117]

In addition to signs, the model statute protects the right to petition, because homeowner rights can depend on their ability to obtain support from their neighbors. This applies to association business, such as operating rules (see Section 105, The Right to Stability in Rules and Charges) and recall of directors (see Section 107, The Right to Oversight of Associations and Directors), as well as to matters of governments and similar entities on which homeowners vote.

Under long-standing constitutional law, homeowners are presumed to have these rights. [118] Legitimate interests of associations can be fulfilled by reasonable restrictions. The protection for peaceful assembly at home (in ¶ 3) reflects fundamental consideration for privacy, and supports many other basic rights.

The limit on charges (in ¶ 4a) both guards against arbitrary suppression of speech and reflects that homeowners (through their assessments) already have paid the fixed costs of common property. This is part of the more general rule of the Restatement § 6.5, that fees must be “reasonably related to the costs of [an association’s] providing the service, or providing and maintaining the common property, or the value of the use of the service.” [119]  This also reflects the status of associations as nonprofits. [120] The specific protection for political activities (in ¶ 4b) tracks Florida law, and encompasses both lobbying and petitions against incumbent directors or managers, as well as presentation of information or candidates reflecting views disfavored by directors or management. [121]

The prohibition against content-based discrimination (in ¶ 5) reflects long-standing principles also embodied in the First Amendment. The principle of equal access protects against use of community newsletters, as well as meeting halls, closed-circuit TV, web sites, bulletin boards and other common property solely or disproportionately to benefit incumbent directors or their favorites. [122] In addition to affirmative rights of self-expression, autonomy involves freedom not be forced to join organizations distinct from the association (see ¶6) and freedom to choose what charitable and political purposes to support (see ¶7).

Finally, the model statute (in ¶ 8) specifies overarching limits on terms of governing documents, following the Restatement § 3.1 that distills generations of court decisions and modern legislation. [123] Some statutes protect homeowners nationwide. [124]  Other statutes may have been adopted by only one or a few states. [125]  These limitations may evolve as society gains greater experience with common-interest community life.

[116] Cal. Civ. Code 1353.5 & 1353.6; see also, e.g., Fla. Stat. Ann. 720.304(2) (protecting the right to fly flags) & 720.3075 (3); Ky. Rev. Stat. Ann. 2.042 (same); Ariz. Rev. Stat. 33-1261 & 33-1808 (same, and protecting signs); Nev. Rev. Stat. 116.31067 (same) & Nev. SB 325 § 46 (2005) (political signs); Tex. Prop. Code 202.009 (same).

[117]  Linmark Assoc. v. Township of Willingboro, 431 U.S. 85 (1977).

[118]  E.g., Lovell v. Griffin, 303 U.S. 444, 451-52 (1938) (pamphlets); Jamison v. Texas, 318 U.S. 413, 416 (1943); Martin v. Struthers, 319 U.S. 141, 145-49 (1943) (door-to-door distribution of literature); Schneider v. State, 308 U.S. 147, 164-65 (1939) (same).

[119] See also Green Party of NJ v. Hartz Mountain Indus., 164 N.J. 127,157-58 (2000); Chin v. Coventry Sq. Condo Assoc.,270 N.J.Super. 323, 330 (App. Div. 1994) (costs to be related to services).

[120]  Thanasoulis v. Windsor Towers 200 Assoc., 110 N.J. 650, 660-61 (1998) (association not entitled to make profit on common area).

[121]  Fla. Stat. Ann. 720.304(1) & 718.123 (condos).

[122]  Guttenberg Taxpayers and Rentpayers Ass’n, 297 N.J.Super. at 411 (opposition voices have a right to be heard “in essentially the same manner” as association directors and management). Equal access requires clear published standards to set forth when access may be denied. Committee for a Better Twin Rivers, supra n.7, 890 A.2d at 951- 52 & 970. See also Section 108 (¶ 4), on specific protections for equal access during elections.

[123] Restatement at 347-410.

[124]  E.g., 42 U.S.C. 3601 et seq. (Fair Housing); 15 U.S.C. 802 et seq. (Fair Debt Collection Practices Act).

[125]  E.g., Restatement at 409-10 (multiple states invalidate covenants that impose restraints on solar energy); id. at 408-09 (a few states regulate roofing materials); Ariz. Rev. Stat. 33-1809 (protects right to park cars needed for work).