AUSTIN (KXAN) — With election season underway, campaign ads and signs have become commonplace across Texas. But two places that might have restrictions or limitations on campaign signs? Homeowner association-run neighborhoods and apartment complexes.
Under Texas Election Code, the state outlines that property owners’ associations — i.e., HOAs — “may not enforce or adopt a restrictive covenant” that outright bans political signs within 90 days before Election Day or 10 days after the election. However, that doesn’t mean homeowners necessarily have free rein, said Chad Ruback, a Dallas appellate lawyer.
“The HOA can require that the sign be mounted in the ground on a stake, as opposed to in a window or out on a balcony,” Ruback said. “An HOA can prohibit a resident from displaying more than one sign for a candidate, or more than one sign for a ballot measure.”
What are the rules for political, social issue signs in HOAs?
While HOAs are required to allow political signs during the allotted timeframe, that doesn’t mean all signs yearround get a free pass. Ruback said under state law, HOAs can legally restrict signs to specific items on that election’s ballot, such as candidates or propositions up for a vote.
With us entering the 2022 midterm elections, a sign for a political candidate in the 2024 presidential election, for example, could legally be prohibited, if an HOA chose to ban them. Similarly, signs related to social issues — such as those displaying “Black Lives Matter” or “Back the Blue” — can be banned since those aren’t specific ballot items up for election.
“Those social justice themes, those social justice causes are not specifically on the ballot. While they might be generally perceived as aligning with one party or another or one candidate or another….those are not directly on the ballot anywhere,” he added.
That isn’t to say an HOA is required to ban political signs outside the Election Day window. It’s up to the discretion of an HOA board to opt whether or not to allow political or social issue signs beyond the 100-day grace period, as outlined in a deed or HOA community rules.
However, HOA boards are required to give equal treatment to their allowance or prohibition of a sign, regardless of the candidate or issue mentioned. If not, that could possibly open them up to legal action, Ruback said.
“If an HOA regime felt really strong pro-Trump, hypothetically, and they want to say ‘there’s no limit at all to pro-Trump signs, but if you want to put up a pro-Biden sign, it can’t be larger than that four foot by six foot that we have to let you put up,’ that likely would be a civil rights violation,” he said.
Can apartment complexes restrict political and social issue signs?
While there are many HOAs in Austin, the city also has a large renters community. So what does this mean for them?
“[Apartment complexes] can say whatever the heck they please when it comes to banning political signs,” Ruback said; the vast majority of complexes in Austin privately owned.
Some apartment complexes are government-run by agencies such as the United States Department of Housing and Urban Development. Because of that, those would operate under different rules, he added.
David Mintz, vice president of government affairs with the Texas Apartment Association, told KXAN rental properties can enforce “reasonable restrictions on political signs.” These limitations include:
- Signs may only be allowed on the property leased by the renter, such as in an apartment window,
- Signs may be displayed within a reasonable time frame either before or after the election,
- Signs that could damage the property can be restricted, and
- Signs that are offense in nature, located in common areas of a complex or threaten others’ health and safety can be prohibited.
Unlike HOAs, Texas Election Code doesn’t have any specific regulations on apartment complexes and political signs, leaving those decisions up to the discretion of apartment owners, Ruback said.
Both Ruback and Mintz said any possible restrictions on signs would be outlined in either a tenant’s leasing agreement, a notice left in a communal space, on a resident’s door or within the property’s community rules.
Similar to HOAs, apartment complex owners can’t give special treatment to specific candidates, parties, issues or ideologies at the expense of opposing candidates, parties or viewpoints. Any unequal treatment could be liable for a lawsuit, Ruback said.
“The apartment complex can’t say something along the lines of you’re welcome to put up Trump signs, but you’re not welcome to put up Biden signs,” Ruback said. “While there’s not a statute expressly stating that, arguing that would make a good civil rights lawsuit.”
What about free speech protections?
Since HOAs and the vast majority of apartment complexes aren’t run by government entities, the free speech protections offered under the U.S. Bill of Rights’ First Amendment don’t apply to political signs on private properties, Ruback said. The First Amendment only restricts governmental entities — like cities, counties, states or other municipalities — from prohibiting political signs.
“The First Amendment is not nearly as broad as people think it is,” he said. “To the extent that someone has a beef with what their apartment complex is prohibiting or what their HOA is prohibiting, that is simply not a First Amendment issue.”