It’s common for neighborhoods to have restrictive covenants that prohibit homeowners from placing any signs in their yard, except for signs advertising homes for sale. But a 2008 Kansas law overrides these restrictive covenants to allow for the placement of small political yard signs starting 45 days before an election.
According to the First Amendment Center, some 50 million people live in neighborhoods with homeowners associations. And laws like the 2008 Kansas law are not without controversy, despite the unanimous vote in the Kansas Legislature.
While the U.S. Supreme Court has ruled that governmental entities like cities can’t stop homeowners from displaying political yard signs, a homeowners association is not government. Instead, it is a group that people voluntarily enter.
Generally, when prospective homeowners purchase a home in a neighborhood with restrictive covenants, they are asked to sign a document pledging to comply with the provisions in the covenants. If those covenants prohibit political yard signs, but a Kansas law says these covenants do not apply, what should a homeowner do?
In his monumental work For a New Liberty: The Libertarian Manifesto, Murray N. Rothbard argues that the right to free speech is not based on some “vague and wooly” concept that protects the “public interest,” such as prohibition of falsely crying “fire” in a theater. Instead, it should be based on property rights. (page 43)
In the case of falsely crying “fire” in the theater, Rothbard argues that this act violates the contract between the theater owner and patrons to enjoy the presentation without interruption. It violates their property rights.
While a homeowner certainly owns the yard in front of his house, he does so based on the voluntary agreements entered into, such as payment of an agreed-upon amount of money to the previous owner. Another agreement entered into is between the new homeowner and all the other homeowners in the neighborhood through the restrictive covenants.
So if those restrictive covenants prohibit political yard signs, that restriction is something that has been mutually agreed to. It is part of the property rights that homeowners in the neighborhood enjoy. It cannot be violated without violating the property rights of those who bought their homes with the understanding that the covenants are part of the property they purchased.
The Kansas statute
K.S.A. 58-3820. Restrictive covenants; political yard signs; limitations. (a) On and after the effective date of this act, any provision of a restrictive covenant which prohibits the display of political yard signs, which are less than six square feet, during a period commencing 45 days before an election and ending two days after the election is hereby declared to be against public policy and such provision shall be void and unenforceable.
(b) The provisions of this section shall apply to any restrictive covenant in existence on the effective date of this act.
Or, as described in the 2008 Summary of Legislation: “The bill invalidates any provision of a restrictive covenant prohibiting the display of political yard signs, which are less than six square feet, 45 days before an election or two days after the election.”
For the August 3rd primary election, the first day for signs in restricted neighborhoods is June 19th.
For the general election on November 2, the first day for signs is September 18th.