Last week, a Tempe landlord-tenant dispute over a rainbow LGBT flag made waves in the news when a landlord asked their tenant to remove the flag for fear of vandalism to the building.
Is that legal?
On one hand, Americans have the right to freedom of expression. On the other, landowners have rights over how their property is used. Some states have laws specifically outlining what landlords can and can’t restrict for flags and political signs. And then there are anti-discrimination laws that in some cases could be broadly interpreted to protect minorities expressing their minority status (e.g. the LGBT flag in Tempe).
The Prohibition Clause
In most states and municipalities, landlords can legally ban political signs, flags, and decorations if a prohibition clause is written into the lease agreement. If there’s no clause in the lease, most landlords’ legal arguments are dead on arrival.
Yet even in the Tempe case, where the lease agreement does (apparently) prohibit flags, the landlord would have to actually take the tenant to court to force them to take down the flag. Hardly a practical solution, between legal costs, lost time, and alienating the tenant.
If the landlord removed the flag herself, she would be vulnerable to the tenant taking her to court for charges ranging from “theft of personal property” to “discrimination” to First Amendment arguments. Whether the tenant would win in court is another question, but it would still cost time and money.
In other words, this landlord is unlikely to enforce her lease’s rules.
Laws Vary by State
Some states, such as California, specifically allow tenants to post political signs and statements. According to California Civil Code §1940.4, landlords may not prohibit tenants from posting signs relating to:
- An election or legislative vote, including an election of a candidate to public office
- The initiative, referendum, or recall process
- Issues that are before a public commission, public board, or elected local body for a vote
The California law would therefore not cover the LGBT rainbow flag. But that doesn’t mean the courts would side with a landlord who tried to force their tenant to remove a LGBT flag. Politics are simply unavoidable in these confrontations, and local leanings matter.
For that matter, what if the dispute were over a different flag, an unpopular flag? What if a tenant put up a Confederate flag, and the landlord asked them to remove it? How might courts treat the case differently?
In Tempe, a city councilman stated that he did not believe the city’s anti-discrimination laws would cover the dispute over the flag. But it begs the question of how anti-discrimination laws may be interpreted more broadly in cities with a strong history of LGBT activism, such as San Francisco.
Then there are states that specifically protect the American flag, but not other flags or signs. Nevada has a law specifically protecting the tenant’s right to display the “flag of the United States.” In New Jersey, a 2004 law limits how homeowners or condominium associations can restrict displaying the American Flag.
Which raises another wrinkle: What about the legal rights of homeowners associations and condominium associations? Some states prohibit these associations from imposing restrictions, but other states leave this between the association, owner, and renter. In some cases, the renter may put up a flag or sign, and the landlord may not initially object until the association starts threatening the landlord with fees and penalties.
So where does all of this leave landlords?
Where legal, landlords should include clauses in their lease agreements banning all political signs and flags (with the possible exception of the U.S. flag). These bans are difficult to enforce, but if landlords do try to enforce them, they should do so with all types of signs and flags to avoid charges of discrimination and selective enforcement.
Landlords with no policy may well end up with two hundred obnoxious political signs littering the grounds of their apartment building, wondering why no one is applying to live there.
Landlords: Weigh in! Do you think it should be legal for landlords to restrict flags and signs posted by their tenants? Why or why not?
Let me know your thoughts with a comment.