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.