By Eric Weld, MassLandlords, Inc.
The freedom to publicly express opinions, support causes and convey dissent is a valued and fundamental right in America, staunchly protected by the First Amendment of the U.S. Constitution. The display of political signs on rental property, while sometimes controversial, is an important component of that right.
Many renters, just like homeowners and condominium occupants, want to support their causes and candidates via displays like yard signs, political signs in windows, and perhaps flags and banners draped from poles by the doorway.
As we enter another presidential election year — with opinions possibly more polarized than in past elections — yard, window and door signs and other manner of political support will be on full display.
But this issue can become a point of contention when renters’ publicly displayed opinions and supported candidates do not align with their landlords’ interests. In such cases, who has the right to determine what can be posted within public view on the rented property, the landlord (property owner) or the tenant (property renter)?
Put it in the Lease
The simplest way to avoid complication is to add specific language to rental agreements stipulating public sign display restrictions. Landlords are granted the right to prohibit the public display on or from their property of opinions with which they disagree, whether the property is rented or not. Property owners, according to protections in the First Amendment, cannot be compelled to publicly utter any language that they do not want to utter.
Without language in the lease, however, disagreements become more complicated to adjudicate, and may be left to state, municipal and housing courts to decide.
The First Amendment was written to protect individuals’ rights to speak freely in public, but also to prohibit citizens from being compelled to say something in public. But in many instances when free speech cases come before state and municipal courts, First Amendment rights are interpreted in various ways — sometimes errantly — and may shift depending on which state or community they are argued in.
In Massachusetts, the right of tenants to display signs — of political nature or other content — outside their rental units is not defined specifically by state law. Therefore, when legal disagreements arise, the issue is often addressed either through rental agreements or, in the case of litigation devoid of rental stipulations, through citation of precedent cases tried in state courts.
Rental stipulations may be subordinate to local bylaws regarding signs’ size, number and location, established for the sake of safety and traffic visibility, for example. Many municipalities also have ordinances limiting how long political campaign signs may remain on display, but such ordinances might be in violation of First Amendment protections and are legally challengeable. And of course, signs that contain profanity are prohibited by law.
Also, displaying signs from the yard or common areas of multi-unit buildings can be legally problematic because it may lead to tenant conflict. Multi-unit landlords may be within their rights to restrict such signs whether or not it’s written into the lease.
Whether a rental agreement holds up in court may depend on several factors including state law and the exact language of the stipulation.
Sign Displays on Rental Property—Cases
Several cases in Massachusetts establish legal precedent regarding renters’ rights to publicly display signs.
The 1982 case Nyer v. Munoz-Mendoza, 385 Mass. 184, in Suffolk County, at first prohibited Viviana Munoz-Mendoza’s right to post signs on the exterior door of her rental unit protesting new owner Leonard B. Nyer’s plan to subdivide and sell the property as condominiums. The Supreme Judicial Court reversed an injunction upon appeal, and Munoz-Mendoza’s right to post signs protesting her landlord’s intentions was upheld. In other words, the court affirmed the renter’s right to post an anti-landlord sign on her door.
Though yard and lawn signs are not specified, language in this case establishes a tenant’s rights to display signs publicly on the exterior of rental property regardless of whether sign contents agree with landlords’ interests.
In Nyer v. Munoz-Mendoza, language did not exist in the lease regarding the prohibition of exterior sign displays. However, the court cited two Massachusetts cases—Lowell v. Strahan, 145 Mass. 1, 8-11, (1887) and Leominster Fuel Co. v. Scanlon, 243 Mass. 126 (1922)—that both granted tenants rights to control the exterior walls and interior and exterior windows of their apartment units.
Importantly, the decisions in these cases were determined “absent special provisions in a lease or in the terms of the tenancy” (Lowell v. Strahan), and “in the absence of an agreement” (Leominster Fuel Co. v. Scanlon). These clauses imply that lease provisions—such as agreements not to display signs on rental property—are determinants in court officials’ adjudications.
Should Landlords Consider Politics? Beware of Invoking Discrimination Protections
MassLandlords wrote about a 2016 instance in which a landlord refused to rent to any
Donald Trump supporter. The matter was not brought before any court, but a United
States Department of Housing and Urban Development spokesperson told CBS4 in Denver that the landlord’s policy was not a violation of the Fair Housing Act.
While this case, like the prohibition of political campaign signs on rental property, is not unlawfully discriminatory, such tactics may needlessly reduce your rental applicant pool and cost you money. Also, you potentially open yourself to claims of disparate impact. For instance, if party affiliation in your area is sufficient to identify an applicant as belonging to a protected class, like one particular race or religion, your statement against the party might be essentially equal to a prohibited statement against that race or religion.
When in doubt, remember that you are running a business and your goal is not to
have headaches. You may find it advisable to restrict all partisan displays and leave
it at that.
A Question of Balance
Massachusetts, like other states, aims to protect the First Amendment rights of property owners and renters alike.
But landlords who want to restrict the display of political signs, cause signs and other expressions from the exteriors of their rentals should be as specific as possible regarding placement, duration and size of signs when writing restrictions into the rental agreement. And importantly, discuss these stipulations with tenants during screening.
An agreement up front is more likely to avoid disagreements, potential legal action and court interpretations down the road.