Q: We live in a HOA development in Naples, and we want to sell our house. We hear that the association president who just came into town (snowbird!), won’t allow “open house” signs because the covenants say “no signs of any kind.”
Our lot is far in the rear and the numbering system is very bad. The bottom line is that our property will never be found by prospective buyers, and we need at least one open house sign to be placed on the common area property.
I feel our First Amendment rights of free speech are being violated. What can we do?
– T.B., Naples
A: The issues you raise are good ones.
The first is whether a president or other officer has the right to take official association action. A director or officer only has the authority granted by the governing documents, or by virtue of an official board resolution. In the absence of such authority, the association president does not have any more say than another board representative. So, review the recorded documents, as well as the association rules and regulations, to determine if authority exists for a total ban on “open house” signs.
Associations do have a legitimate interest in preventing a plethora of signs in their communities. Such signs create visual clutter, and I swear that if I see one more Realtor sign with a deflated balloon attached to it, I am going to scream. That said, I do understand that sellers want and need to be able to direct “foot traffic” to properties they are trying to unload.
What I think you are asking is whether you have a constitutional right to post an “open house” sign advertising your property for sale, despite any covenants to the contrary that govern your property.
Unfortunately, the answer is probably “no.”
When I first started practicing law, I had the opportunity to work on an appellate brief in a case involving a Naples homeowners’ association. The issue involved whether protective covenants, which prohibited the display of all signs by owners on their lots (except for signs identifying the owner’s name and address), were enforceable.
The case is Quail Creek Property Owners Association v. Hunter. In it, the trial court found that any attempt to prevent an owner from displaying a “For Sale” sign impaired the flow of truthful and legitimate commercial information and thereby violated the owner’s rights to free speech.
The appellate court reversed, and although the ruling is fairly narrow, it has come to stand for the proposition that when you purchase in a deed-restricted community, “restrict” can be the operative word.
The court found that a restriction on signs designed to advertise property for sale was not “state action” and that any enforcement of the restriction, on its face, did not violate the First or Fourteenth Amendments to the U.S. Constitution, or any provision of Florida’s Constitution.
So, rather than trying to stand on constitutional ground, ask for written confirmation of your association’s policy with regard to signage. Even stodgy associations usually allow at least one “open house” sign on weekends.
LAWYERS AND JOB SECURITY
Do lawyers ensure job security for themselves? A recent editorial out of St. Augustine makes that assertion.
At issue is a matter before the Florida Supreme Court involving community association managers (CAMs) and if certain activities performed by CAMs constitute the unlicensed practice of law.
The Supreme Court first tackled this matter back in 1996, and, from what I have reviewed so far, nothing substantive is about to change.
The editorial’s author, admittedly a licensed CAM, played upon just about every negative stereotype he could about lawyers. Some of his better digs: “It’s the same old horse that lawyers drag out and beat whenever they figure there is a buck to be made,” and that the pending case is just one of “lawyers taking care of lawyers.”
Really? As a lawyer who has spent many years in the trenches, I can state with some certainty that the last thing most association legal practitioners want to do is wrangle with CAMs. One reason why so few binding decisions exist on the divide between management services and the practice of law is probably that lawyers like me have stayed above the fray, not wanting to appear that we were just protecting our turf.
And, at the same time, I want to make sure that my clients receive competent advice. Condoning the unlicensed practice of law is just as bad as actually doing it.
Associations often engage several different professions in conducting their duties. The regulation of CAMs has been a good thing for Florida, and I, for one, don’t resent them for what they do, even if I acknowledge that some of the services they often provide, I used to do.
Can’t we all just get along?
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. She is an attorney with the the Law Offices of Kevin T. Wells PA in Sarasota, concentrating her practice on community association and real estate. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to teady@kevinwellspa.com.
