THE IMPORTANCE OF CAREFUL RULE DRAFTING: CONDOMINIUM TRUST REGULATION OF FREE SPEECH

Published on: February 12, 2021

One of the most difficult duties of serving as a condominium board member is making and enforcing rules affecting the condominium common areas. Add to that difficulty the complexity of regulating speech in the common areas and the difficulty can seem insurmountable.  A recent decision by the Superior Court for the County of Hampshire seemingly provides clarity on the analysis for condominium boards, but a closer reading of the facts of the case may make it somewhat distinguishable from other cases. The case is Margery Jess v. Summer Hill Estates Condominium Trust, et. al.

Regulating Free Speech in Condominium Common Areas

The law in Massachusetts regarding regulating free speech in condominiums up to and even including Jess v. Summer Hill Estates Condominium Trust remains unsettled and is susceptible to change. In general, a condominium may regulate signs posted by unit owners in the common areas. In certain circumstances, boards may even regulate signs within a unit window or door that is visible to the common areas, as long as the condominium Master Deed or By-Laws provide the board with the power to do so. But there are limits to that regulation. First, the regulation must be content neutral. In other words, you cannot regulate what the sign says, only where it is placed and its size, and in some cases, how long it is visible. In the end, the regulations must altogether be reasonable, and that’s what this most recent case affirms.

Margery Jess v. Summer Hill Estates Condominium Trust, et al – What were the Facts?

The Summer Hill Estates Condominium is located in Belchertown, Massachusetts. In this recent case, Ms. Jess, without permission from the Condominium Board, put a “Black Lives Matter” sign in a common area flowerbed right outside her unit. Summer Hill Estates Condominium Trustees contacted Ms. Jess and asked her to remove the sign, or seek permission from the Board. Ms. Jess decided to ask permission. When the Board denied her request, they again told her to remove the sign or face a fifty dollar ($50) per day fine. Ms. Jess refused to remove her sign, and the lawsuit commenced.

The applicable rules and regulations in the Summer Hill Estates Condominium by-laws did not specifically prohibit a unit owner from placing a sign in the common areas, nor did the rules provide any guidance to the Board in how to apply a rule prohibiting a unit owner from placing any “[decoration] or [furnishing]” in the common area. Another fact that seemed to cut against the Summer Hill Estates was that they had allowed other signs in the common area, ones with different messages, such as various other national flags, like the Irish Flag, and Hearts intended to show support for medical personnel during the COVID-19 pandemic.

How did the Court Rule in this Case?

The Court held that the rules and regulations applicable to posting signs in the common areas at the Summer Hill Estates Condominium had to be reasonable. The Court stated all unit owners at the Condominium were allowed to post non-commercial signs without the permission of the Condominium Board, but the sign’s size and location can still be regulated as long as the regulations are reasonable. In other words, unit owners may post any sign that is political without permission from the Board of Trustees, but those signs posted could still be regulated as to their size and location.

What is the Cautionary Tale for this Case?

The cautionary tale for this case is one of consistency and careful rule drafting. Condominium boards should take careful attention to what the Master Deed and By-Laws say with respect to posting signs in the common areas. Further, rules should provide guidance to boards on when to approve or deny permission for a unit owner to place a sign in the common area or that is placed in a window or door visible to the common areas and such permission should not be based on the content of the sign. For example, rules should not regulate the content of the sign, or what the sign says as that requires a subjective determination. The rule should only regulate the signs size, or location, and the duration the sign can be posted. Boards that engage in regulating content, and allow signs for “Black Lives Matter” or “Police Lives Matter” but not for “Hearts for Medical Personnel” or “Other Countries Flags” may be subject to Court scrutiny and be liable to an aggrieved unit owner. As always, contact MEEB if you want to review or amend your Condominium rules around regulating signs or displays of speech in the common areas.

So, How did the Law Change, Exactly?

As far as existing law goes, this case did not change much. Mostly because this law is not precedent because it is a Superior Court case. The Court’s Decision is only law for the Summer Hill Estates Condominium. What the case does, however, is perhaps show us a glimpse of how a higher court, like the Massachusetts Appeals Court or the Massachusetts Supreme Judicial Court, might rule on a case with a similar set of facts, or legal issues in the case. That glimpse indicates Condominiums should be careful in regulating displays of speech in the common areas, and to make sure that if the Condominium board allows unit owner to post signs, they only regulate a signs size and location, not the sign’s contents.

For a copy of the Decision [click here].

AS ALWAYS, PLEASE CONTACT MEEB IF YOUR CONDOMINIUM IS INTERESTED IN AMENDING YOUR RULES AROUND POSTING SIGNS/DISPLAYS OF SPEECH IN THE COMMON AREAS.

Written by Anthony Gallino

(agallino@meeb.com)