Free Speech in an HOA

Recently, a retired police officer in Southport NC challenged a rule by his homeowner’s association prohibiting religious or political gatherings at the community’s amenities center. The homeowner felt that this was an infringement of his constitutional rights. After holding meetings and gathering petition signatures, the HOA board agreed to change the rule.

Some people may be surprised that when they purchase in a planned community with properly filed Declarations and By-laws, they are surrendering some of their constitutional rights. Even though HOAs appear to be small, quasi-governments, with the powers to assess residents, establish rules regarding the property and common areas and other powers that historically have been held by towns and counties, modern HOA laws have really grown out of private contracts and restrictions on the sale of land. With private agreements, you can contract away a good many of your rights. Therefore, the best way to prevail in this or in most HOA/homeowner clashes is community organization and mobilization, which apparently was what this homeowner in Southport did. With enough signatures on a petition, a meeting can be forced and rules, By-Laws or even Declarations amended, as long as the process is followed. Alternatively, get enough votes or enough signed proxies, and elect a board that will change the rule.

Assuming the community documents in this Southport association allow it, there is little in the law of North Carolina that would prevent an HOA regulation of this type. The Condominium Act and Planned Community Act only address free speech issues in two areas. Displays of political signs and US and North Carolina flags can still be prohibited, but only if they are specifically prohibited in the Declarations (“signs” or “flags” won’t do). In addition, for Declarations filed after October 1, 2005 the restriction has to be in boldface, allcaps, and no smaller than the largest print used elsewhere in the instrument. Those provisions also only apply to individual lots, not common areas, such as the clubhouse at this association in Southport.   

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Comments

[Sherwood]

My community has a message board for residents. It is an online vehicle to inform residents of items that are of interests to the community. I was told that any negative comments pertaining to community well being will not be permitted. Is this allowed under the First Amendment?

[Bradley Coxe]

The 1st Amendment only applies to the government. There is nothing prohibiting an HOA from moderating a message board.