Battles against homeowners' groups complex
Oct. 25, 2001

Like many Houstonians, I have a love/hate relationship with my homeowners' association. On one hand, because Houston is the largest U.S. city without comprehensive zoning, we rely on homeowners' associations to enforce deed restrictions that keep our property values high and our neighborhoods aesthetically pleasing. On the other hand, every so often I wonder if the association doesn't go too far in regulating my private life. For example, I sometimes yearn to get rid of accumulated household junk by hosting a garage sale -- only to realize that my homeowners' association forbids it. 
Obviously, I agreed to abide by the homeowners' association rules when I purchased property in the neighborhood, and nothing in the Constitution guarantees me a right to have a garage sale. However, the ability of homeowners to post signs on their property in violation of homeowners' association rules can present several more complicated questions, as demonstrated by a local case that made headlines last week. 
In that case, three Houston family members were sued by the Oak Forest Homeowners Association for placing signs on their homes promoting prayer. According to Ivy Raschke, she erected a sign in 1999 that read "This is a house of prayer: need a prayer?" It included the name and phone number of a Christian group that provides prayers upon request. 
The Oak Forest Homeowners Association sued the three residents for violating the association's rules against advertising. As reported in the Chronicle on Oct. 17, The association's attorney said he fears that local businesses may start hanging commercial banners from houses if the association allows what it views as advertisements for a particular prayer group. 
The case is one of a growing number of lawsuits filed both by and against homeowners' associations for imposing what some members believe are overly restrictive covenants. For example, a Florida court recently ruled in favor of a homeowners' association that fined a resident for flying the American flag on a flag pole in front of his home, rather than on a bracket attached to the side of the house as required by the association's bylaws. What makes these cases particularly complex is that they involve questions of both property and constitutional law. Homeowners who purchase a house subject to deed restrictions have entered into private contracts and must understand that they have relinquished some of their property rights. 
However, the U.S. Supreme Court has held that even private deed restrictions are subject to some degree of constitutional scrutiny. The Supreme Court has also been very protective of homeowners' First Amendment rights to display political signs. In City of Ladue vs. Gilleo, the court upheld a homeowner's right to place a sign protesting the Persian Gulf War in her window despite a city ordinance prohibiting residential signage. 
While Gilleo involved a city sign ordinance, here in Houston a Harris County district judge ruled in 1994 that deed restrictions are also subject to the First Amendment. In Dubose vs. Meyerland, the district court held that a deed restriction forbidding residents from posting political signs was an unconstitutional violation of free speech. According to the judge, "[t]he U.S. Constitution does not end where deed restrictions begin." 
Accordingly, had Raschke erected a political sign on her yard, she would have been well within her First Amendment rights. By analogy, a pure statement of religious belief, such as displaying a creche during the Christmas season, would be protected by the First Amendment's free exercise clause. Advertising, however, is subject to a lower level of First Amendment protection and is therefore more amenable to regulation than political or religious speech. The salient issue, then, becomes whether Raschke's sign in effect provided advertising for the named prayer group. The sign clearly did not propose any type of commercial transaction, but distinguishing between commercial and noncommercial speech is not always so easy. It could be argued that the sign as originally displayed -- listing the name and phone number of the prayer group -- was akin to advertising in that it promoted a specific organization. 
As in many disputes between neighbors, compromise rather than litigation would be the best way to resolve the issue. If Raschke and her children would agree to keep organization names and phone numbers off any future signs expressing their religious beliefs, the homeowners' association would likely drop its suit. Going to court is a hard way to learn that being a good neighbor means trying to get along. 

Cásarez is associate professor in the Communication Department at the University of St. Thomas.