Once again the election campaigns are gearing up for contentious elections. Increasingly, people feel strongly about their candidate, and possibly even more strongly about the people who support their candidate’s opponent. This can lead to animosity between neighbors and often leads to a political sign competition within a neighborhood. Contrary to the friendly competition of neighbors with holiday displays, a political sign war of neighbors does not serve the community. The voluminous signs for candidates and/or other political statements detract from the exterior aesthetic of a community and can lead to disputes, vandalism and detract from the more important matters that a community association should be focused on. From this tension comes two important questions for homeowner associations: (i) Can an association regulate political yard signs and (ii) Can an association regulate political canvassing by candidates and their staff?
Although this issue potentially could be disputed, as Minnesota courts have not directly ruled on this issue, Minnesota homeowners’ associations do have authority to ban political signs under the plain language of the Minnesota Common Interest Ownership Act, Chapter 515B, and most association declarations. The Minnesota Common Interest Ownership Act grants the associations the ability to regulate and control the exterior appearances of community associations. Specifically, §515B.1-102 states “the association shall have the power to: [regulate] the exterior appearance of the common interest community, including, for example, balconies and patios, window treatments, and signs and other displays, regardless of whether inside a unit.” This statute makes no exception for political signs or elections. Consequently, in my experience most associations and their counsel take the position that the association has the right to prohibit political signs, and any other types of signage.
However, as discussed below, other Minnesota statutes contain language that potentially could be interpreted to the contrary. Often, homeowners and board members point to as statute contained in the Minnesota Fair Campaign Practices Act and argue despite plain language in the Minnesota Common Interest Ownership Act, or the Association’s governing documents, political signs are required to be allowed. In support of this position, they cite to Minnesota Statutes §211B.045, which states:
All noncommercial signs of any size may be posted in any number beginning 46 days before the state primary in a state general election year until ten days following the state general election. Municipal ordinances may regulate the size and number of noncommercial signs at other times.
This statute does not directly apply to homeowner associations or specify applicability to supersede restrictive covenants; rather, on its face its specifies it applies to municipal regulation of signs. As homeowner associations are able to enact rules and regulations which are more restrictive than such a general statute and the statute does not specify it supersedes and private restrictive covenants to the contrary, the position that homeowner associations remain authorized to regulate political signs, and signs of all kinds, remains the stronger position. Further, if our legislature intended to require homeowner associations to permit political signs on their property, it would have simply said so in §515B.1-102. Due to the plain language of the Minnesota Common Interest Ownership Act, and the language contained in many association governing documents, a homeowner association that is subject to the Minnesota Common Interest Ownership or which has language in its governing documents granting the association authority to prohibit or regulate signs, there is authority to take such action.
Attorneys prefer when an issue is clear and has been affirmed in court. This provides precedence and guidance to provide clients with legal opinions and allows decisions to be made with confidence. With respect to an homeowner association’s authority to regulate political signs, Minnesota courts have not yet issued a decision based on a challenge to an association’s restrictions. While as discussed above, it does not seem on its face Section 211B.045 of the Minnesota Fair Campaign Practices Act would supersede the authority granted to a homeowner association to restrict and prohibit signs in furtherance of controlling the exterior aesthetic of a community, due to the potential for this authority to be challenged, a board of directors must use its best judgment to decide if acting upon the authority in the Minnesota Common Interest Ownership Act to prohibit political signs is in the best interest of its entire community.
There are also different options a homeowner association could consider if they wish to allow, but place some limitations, on the political signage allowed during campaign season. For starters, homeowners are not allowed to post signs on property they do not own. Therefore, associations can ban political signs from being placed by a homeowner in any common areas. Associations could also provide limitations when and where signs may be posted in a homeowner’s lot or windows, if visible from the exterior of the dwelling. For example, the association could protect its overall appearance by limiting the number and size of political signs. Remember that one of the duties of the board of directors in a residential community is to preserve and protect the market values and appearances of the property.
Contrary to intuitive thinking, homeowners’ associations may not ban legitimate political candidates from entering a building or common area where multiple residences are located. In other words, if a valid political candidate seeks entry into your condominium association’s building, the association cannot prevent such entry. However, it can institute policies that may minimize disruptions or nuisances caused by political canvassing.
Minnesota Statutes §211B.20 prohibits a person from denying a political candidate from access to residential facilities where more than one residence is located. A candidate must meet the following requirements to fall under the protection of this law:
- organized a campaign committee under applicable federal or state law;
- filed a financial report as required by Minn. Stat. §211A.02; or
- filed an affidavit of candidacy for elected office.
Additionally, access is only required if the residence is located within in the district that candidate will be representing, and the candidate must be seeking election in the next election to be held for that office. Associations must also allow candidates to leave campaign materials for residents at their doors, given that they are left in an orderly manner. Associations can set up certain parameters for candidate visits, including limiting access to one building at a time, limiting the number of visits, and limiting the hours in which canvassing activities may occur.
The following is a list of parameters Minn. Stat. §211B.20 Subd. 2 explicitly allows:
- denial of admittance into a particular apartment, room, manufactured home, or personal residential unit;
- requiring reasonable and proper identification as a necessary prerequisite to admission to a multiple unit dwelling;
- in the case of a nursing home or a registered housing with services establishment providing assisted living services meeting the requirements of section 144G.03, subdivision 2, denial of permission to visit certain persons for valid health reasons;
- limiting visits by candidates or volunteers accompanied by the candidate to a reasonable number of persons or reasonable hours;
- requiring a prior appointment to gain access to the facility; or
- denial of admittance to or expulsion from a multiple unit dwelling for good cause.
Notably, COVID-19 has given associations and residents a unique advantage to use Minn. Stat. §211B.20 Subd. 2(3) as COVID-19 is a global pandemic which arguably gives everyone a valid health reason to deny visits by political candidates.
Minnesota has had one of the highest voter turnouts in the country since 2016. It is likely you will have a few enthusiastic voters in your association. How you address these issues is up to each individual association. Just remember although political involvement is important to Minnesotans, you can implement regulations to maintain order and avoid nuisances. It is always best to consider these issues and discuss and make decisions prior to having to address any specific issue or take action to enforce any restrictions. Especially with respect to signs, a clear policy that has been approved ahead of time, is provided to homeowners prior to election season, and is enforced in an even-handed manner against all homeowners, ensures that the homeowner association has done its due diligence and will assist in enforcement measures. The last thing an association wants to address is claims of political bias in enforcement of its regulations; a blanket policy that is enforced even handedly prevents such accusations and will assist the association in implementation and enforcement.
Happy Election Season!
For any additional questions on this topic or for assistance in enforcement of your homeowner association’s right to regulate political signs, contact attorney Matt Greenstein.