A homeowner with numerous flags and signs in his yard is told by his Association that the flags and signs are a violation of the C,C&Rs. The homeowner refuses to remove them citing his First Amendment right to free speech. What Happens Now?

The First Amendment to the United States Constitution and Article I, Section 19 of the Tennessee Constitution, restrict the government from impeding upon one’s ability to freely express himself. While neither the Federal Government, nor state, county or local municipalities may restrict speech, homeowner and condominium associations are based upon contractual agreements (aka the Declaration, Master Deed and By-Laws) requiring owners to abide by the covenants, conditions and restrictions (and amendments thereto) of the association. Therefore, associations are not bound by the First Amendment or the Tennessee Constitution with regard to free speech.

The most effective way to control signs, flags, banners and other exterior decorations (especially in single family homeowner associations) is for the attorney to draft an amendment to the governing documents, and the requisite number of homeowners vote to pass the amendment. If the amendment approach has been tried and is either voted down or could not be voted upon due to a lack of quorum, rules and regulations might be the only other alternative. Most Association governing documents grant the power to the Board to adopt reasonable rules and regulations without a vote of the Association membership. Some governing documents restrict rules and regulations only to control behavior and actions on common areas. In addition to common areas, some association governing documents also allow board adopted rules and regulations to control what homeowners may do to the exterior of their property. If there is any question, the board should ask its attorney for a legal opinion interpreting the extent to which its rules and regulations may regulate behavior and actions.

In summary, when a homeowner purchases a unit or a house that is part of a community association, he/she agrees to abide by the governing documents. In essence, they are giving up their right to say “this is my house and I will do as I please” and instead are saying “this is my house and I will do as I please…provided that it is not in conflict with the governing documents.”