Chapter 10 - § 10.10 • SIGNS

• Jurisdiction: Colorado

§ 10.10 • SIGNS

Common interest communities often regulate signs. These restrictions may only limit size or location or they may explicitly ban signs and banners on structures, in windows, and in yards. Sign restrictions may also be implicit in a "uniform appearance" restriction that allows only certain items — unit numbers and name plates, for example — to be visible from the exterior of a unit and prohibits all other items not on the list. Clearly, an association may prohibit a unit owner from displaying a sign or banner on common areas or association property because the unit owner does not own that property and can no more post a sign or hang a banner there than he or she can fence off the property.⁴¹⁷ Restrictions on individually owned units are another matter. There are a number of limitations on the ability of associations to limit those signs.

Associations often forbid or restrict posting advertising signs on units or common property. When control of a common interest community is transferred from the declarant to unit purchasers, associations may adopt sign restrictions that can curb the declarant's marketing efforts. In Crest Builders, Inc. v. Willow Falls Improvement Ass'n,⁴¹⁸ for instance, the association amended its declaration and effectively terminated the developer's right to maintain advertising signs on the property. The original declaration stated:

No signs, posters, or advertisements of any kind or description shall be erected, maintained or displayed on any of the Existing Property or any part thereof, visible to public view. The provisions hereof shall not apply to the Developer.

The final sentence was eliminated. The developer sought injunctive relief. The issue before the court was not the reasonableness of the restriction, but whether the developer had either a protected interest or "vested" right in its sales program. The court held that the declaration had been validly amended and that the developer had no vested interest in the original declaration that protected the sales program. The court did not address the reasonableness or constitutionality of the sign restriction.

Under the CCIOA, a declarant can protect itself from restrictions that impeded its ability to advertise the development. The declaration may include a description of what are called "special declarant rights" reserved by the declarant,⁴¹⁹ and, in fact, if the declaration fails to properly reserve special declarant rights, they are lost.⁴²⁰ The CCIOA definition of "special declarant rights" explicitly includes the right to maintain signs advertising the common interest community,⁴²¹ and the CCIOA grants the declarant an easement through the common elements as may be reasonably necessary for exercising special declarant rights.⁴²² The declaration must describe the time limit within which the right must be exercised,⁴²³ but the CCIOA does not appear to set explicitly an outer limit for that time period.⁴²⁴ The Act also grants a declarant the right to maintain signs on the common elements advertising the common interest community, subject to any limitations in the declaration.⁴²⁵ That would appear to be a right independent of any special declarant right described in the declaration and, therefore, even if the declarant fails to properly reserve special declarant rights in general, the right to maintain advertising signs appears to be protected.⁴²⁶

Association restrictions may also regulate for sale signs posted on units owned by individuals other than a declarant. While municipal sign ordinances are generally upheld,⁴²⁷ for sale signs restrictions have been struck down as violating the Free Speech Clause of the First Amendment.⁴²⁸ Moreover, a 2015 decision by the United States Supreme Court⁴²⁹ said that strict scrutiny should apply to a local sign ordinance that it viewed as regulating content. Commentators have speculated that the ruling may impinge on the ability to regulate signs.⁴³⁰

Usually, courts hold that sign restrictions in community associations do not impermissibly infringe on...