Tempe LGBT Flag Dispute Raises Question: Can Landlords Ban Flags and Political Signs?

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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.

Related: How to Safely Navigate Landlord-Tenant Laws as a Real Estate Investor

In other words, this landlord is unlikely to enforce her lease’s rules.

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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:

  1. An election or legislative vote, including an election of a candidate to public office
  2. The initiative, referendum, or recall process
  3. 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.

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Related: 7 Tips to Keep Landlords Free From Costly Tenant Lawsuits

Homeowners Associations

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.

About Author

Brian Davis

Brian is a real estate investor and landlord with 15 rental properties, who writes fascinating articles for SparkRental.com. His rental management is almost completely automated by now, allowing him to travel the world frequently (if not always in style).

11 Comments

  1. Joe Splitrock

    Interesting topic and clearly there are freedom of speech implications. Freedom of speech is not absolute and courts have maintained when it affects the rights of others, freedom of speech can be limited.

    I personally don’t allow political signs on my properties for any candidate or cause. I just don’t believe taking sides in politics will help my business.

    I do not have any clause that covers flags, but arguably a confederate flag or worse a Nazi flag are symbols of racism and hate. I would ask any tenant to remove such propaganda.

    For me it is about looking out for my business more so than taking a moral stand.

    • Please clarify. How do you think candidate lawn signs impact your business? Anyway who see a sign on your tenant’s lawn will identify the position with the tenant not with you.

      • Joe Splitrock

        Unfortunately we do not live in a respectful world anymore. What I mean is people don’t always peacefully protest opposing views. I have seen property damaged by people who have opposing views. Neighbors call me when there is a problem at the property, so no they do not separate it in their minds. I don’t care what the view is, it is just not worth potential trouble.

        Ever heard the saying, never discuss religion or politics?

        • What kinds of problems do the neighbors call you about? In my experience, neighbors call about noise, but hardly anything else, and certainly not about candidate lawn signs. The most “damage” I have seen to property during an election is the middle-of-the-night removal of lawn signs. What kind of “political” damage during campaigns have you seen?

  2. Amy A.

    If a tenant put out a sign for a candidate whom I oppose, I would allow it to stay, but put up the other candidate’s sign right next to it! You do not lose your freedom of speech just because you rent. Of course, we have laws dictating how long before an election signs can go up and when they must come down, so I don’t think it would impact my business much.

    • Even though it is your own property, by collecting rent you are exchanging the use of your property for the rent. Therefore, you probably should not put out your own sign whether you support or oppose the candidate.

      • Joe Splitrock

        You are exchanging use of the property but you dictate the terms. Even in California where they require a landlord to allow signs, they have a maximum allowable size.
        The point is renting a property doesn’t give you rights to do anything you want anymore than owning a property does.

        Katie are you a landlord?

        • The point Amy brought up is that if the tenant puts out a sign for a candidate she oppose, she would put her sign right next to it. We are assuming the tenant’s sign falls within size or other guidelines. We are also not talking about doing “anything you want.” The tenant did not break any laws, and the tenant is paying for “quiet enjoyment” of the property. Opposing the tenant’s favored candidate (the ground for Amy’s action) is no ground at all for Amy’s action, and would likely create totally unnecessary tenant/landlord friction..

  3. Stephen Renehan

    This is an interesting question, but my feeling is that the tenant should be able to hang a flag in the area in which they rent (i.e. the interior). Hypothetically speaking, if the owner of the property was Jewish, the tenant of the 1st floor apartment should not be permitted to exercise their First Amendment rights and hang a swastika outside his 1st floor apartment. If they wish to display such a flag inside, I don’t see why they shouldn’t have that right. Those are just my thoughts.

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