Q: Can you comment on our dilemma?
We are trying to sell our lot in Venice and have an issue with our HOA board. The governing documents state that all signs are prohibited except for "merchant builder" signs used for lot identification, information and sale purposes.
Other rules exist for temporary open house signs and for the availability of access through the entry gate for prospective purchasers.
Our community developer has a sign on the lot adjacent to ours identifying the site, and we petitioned the board to be allowed a similar sign on our lot. Our request was denied.
We disputed the board's decision and asked for mediation.
They agreed but expect their decision to remain the same.
We feel the board's actions are discriminatory and an unfair business practice. Maybe throw in a freedom of speech argument, too.
Are we tilting against a HOA board windmill?
– MG, Venice
A:Maybe.
As far as I know, Florida law does not protect your right to post a "for sale" sign any more than an owner has a right to have a yard full of plastic pink flamingos or gnomes, if the restrictions the buyer agreed to adhere to at purchase prohibit them or give the board the discretion to decide.
Are there defenses to the board's actions? Of course.
I will throw in some legal terms such as "equitable estoppel" and "laches," meaning that if the board is not uniformly enforcing the no "for sale" sign restriction, that restriction can be attacked.
A restriction also can be challenged if it was not properly adopted. But a First Amendment freedom of speech argument? No, not likely.
I can say that because I litigated one such case appealed to the Florida District Court of Appeal that governs Sarasota County. A "for sale" sign is commercial speech, so it is not protected under the First Amendment to the Constitution.
When you purchase in a deed-restricted community, always know the restrictions. Also know that those restrictions are subject to change.
A developer is in the business of making money. Having an edge against investor owners is a goal. Developers hire attorneys to protect their interests. Those attorneys draft community association documents that further that goal. Who wants to compete against themselves?
So how does that translate? I can have a sales center and I can post signs — you can't.
HOA reality can bite.
Arizona has a state law that allows homeowners to post "for sale" signs, regardless of deed restrictions against it. Florida will probably get there. Who knows? But it hasn't yet, as far as I know.
I hope the mediation works out. If not, you could throw some money at this fight.
Or consider that "for sale" signs don't do much for sales in a gated community anyway when the public does not have access by virtue of your entry gate, and that professionals and many media tools exist that can help you sell your property.
Finally, I would think about embracing the enemy, so to speak.
Have you tried to contact the developer? Not every developer is a soulless, empty entity, although some have been. It may even be that they would buy back your lot if it has appreciated in value. Keep your options open.
Although quixotic adventures can be fun, fighting an HOA is more like taking on a buzz saw than a windmill.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. Her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
