Real estate signs are an integral component of the REALTORS®’ business arsenal. They allow the agent to effectively market a property, and they serve as an important directional aide when conducting an open house. With the advent of technology, real estate signs now function in conjunction with many other marketing tools available to the REALTOR®. However, they retain their status as one of the most important methods of marketing a home. Unfortunately, real estate signs can become the source of controversy in a community. If residents perceive a preponderance of real estate signs, they will put pressure on local government officials to restrict the display of the signs. Fortunately, state laws exist to protect the rights of real estate practitioners and home owners to market properties via real estate signs. The laws balance these rights with the community’s need to control visual clutter and safety. This paper provides a synopsis of the issues surrounding real estate signs, the laws that govern them, and the various ways in which REALTORS® in California have respondedto this issue.
II. LEGAL AND LEGISLATIVE HISTORY
A. Significant Court Rulings.The courts have ruled that the First Amendment of the U.S. Constitution guarantees the right to free speech through sign usage. On the other hand, the courts also have ruled that local governments possess the authority to regulate the placement of signs. These rulings declared that aesthetics is embodied in the concept of public welfare, and therefore, the use of signs may be regulated for aesthetic purposes. Furthermore, the courts have ruled that local governments may regulate sign placementin order to protect the public from bodily injury due to ill-placed signs. For example, many sign ordinances prohibit the posting of signs in street medians. REALTORS® who willfully ignore such a prohibition may be liable for any injuries that result from obstructed views of passing motorists caused by their signs.
The first significant development to occur in the legal arena pertaining to the display of real estate signs took place in 1976 when the U.S. Supreme Court ruled in the case of Virginia Pharmacy Board v. Virginia Consumer Council. In its ruling, the court declared that local government sign regulation must be content-neutral. In other words, local governments may place regulations on the time, place and manner in which signs are displayed but not on what they say.
In 1977, the U.S. Supreme Court extended this opinion specifically to real estate signs. In the case of Linmark Associates, Inc. v. Township of Willingboro, the court struck down an ordinance adopted by the New Jersey township of Willingboro, which banned all "FOR SALE" signs from residential property. The court ruled that regardless of the town’s good intentions, it had no authority to single out and prohibit one type of lawn sign. Once again, the court declared that sign restrictions must be content neutral.
B. Legislative Protections. Concurrently with these legal developments, C.A.R. has worked diligently in the legislative arena in the last 25 years to ensure that REALTORS® and property owners retain the right to display real estate signs in California. In 1974, C.A.R. sponsored legislation that was designed to overturn an earlier California Appellate Court ruling which had upheld the validity of a city ordinance that prohibited all "FOR SALE" signs containing real estate agents’names and addresses in residential zones.
The legislation, AB 604 (Bannai), implemented California Civil Code Section 713, which states that a property owner has the right to display a sign on his or her property indicating that the property is "FOR SALE", lease, or exchange, and including the real estate agent’s name, address and telephone number. After this legislation passed, property owners and REALTORS® had protection in California statutes to display real estate signs on the premises of a property.
However, the question of displaying open house directional signs off of the premises of the property remained a source of controversy. Many localities of the opinion that such signs create a visual nuisance had adopted ordinances forbidding their placement.
Once again, C.A.R. sponsored legislation to address the controversy. In 1990, AB 2949 (Harris) was passed, amending Civil Code 713 to give property owners the right to place real estate signs on the premises of another property with the owner’s consent. However, localities retain the right to regulate the manner in which such signs are displayed or to prohibit their placement on public property.
C. Homeowners’ Associations. The preceding legal and legislative developments reconciled the controversies that had developed between property owners and their agents’ rights to display real estate signs, on the one hand, and the rights of localities to control for visual aesthetics and public safety, on the other hand. However, they did not speak to the authority of homeowners’ associations to impose sign regulations. Some homeowners’ associations had adopted rules governing the design of signs that proved particularly onerous to REALTORS®. For example, an association in Orange County required REALTORS® to usespecial sand blown signs which cost $300 each.
In response, the California Civil Code Section 712 was amended in 1983 by AB 464 (Chacon) to address the authority of homeowners’ associations to regulate the placement of real estate signs. Specifically, the legislation precludes homeowners’ associations from adopting sign ordinances more stringent than those of their respective cities. However, if a city or county’s ordinance is silent on a particular issue of sign placement, a homeowners’ association mayenact its own regulations on the issue.
D. Mobilehome Parks. California Civil Code §798.70 grants the right to the owner of a mobilehome in a mobilehome park to display a sign advertising the sale or exchange of the mobilehome. It states also that a sign advertising the mobilehome for rent is permitted, if the mobilehome park management permits renting in the park. Furthermore, the mobilehome owner may display an open house sign, unless the mobilehome park management prohibits open houses. Any of these signs may be displayed in the window of the mobilehome, on the side of the mobilehome facing the street or in front of the mobilehome facing the street. They may be at least 24" wide and 36" high and may state the name, address and telephone number of the mobilehome owner or his/her agent. The placement of a brochure folder also is permitted.
E. Local Association and MLS Jurisdiction. The National Association of REALTORS® covers sign ordinances in the Fourteen Points of the Multiple Listing Policy. Specifically, points five and twelve prohibit any local association or MLS from making any rule relating to the posting or use of signs, including "SOLD" signs. These points were adopted to stress the proper role of Associations with regard to sign ordinances. They prohibit Associations from attempting to enforce local signs ordinances. The N.A.R. Handbook on Multiple Listing Policy states that a regulation of signs "is a matter for the owner of the property, his authorized agent, and the public authority." Instead, the points direct Associations to educate their members about the necessity of compliance with local ordinances. In an effort to do this, many Associations maintain a database of all the local sign ordinances for the municipalities in their jurisdictionand communicate ths information to their members. For example, the Southern Alameda County and Marin County Associations maintain such data bases. They make this information available to their members, inform members of important changes, and publishingthe information periodically in their monthly newsletter.
III. COMPONENTS OF REAL ESTATE SIGN ORDINANCES
Most localities in California have a sign ordinance or sign code. The ordinance, which also regulates real estate signs, is usually found as part of the zoning code or municipal code. Most of the ordinances provide specific regulations on the allowable number and size of real estate signs, as well as various other restrictions.
A. Number of Real Estate Signs Permitted. Usually, a city allows one "FOR SALE" or for lease sign per property. However, this is not alwaysthe case. Frequently, sign ordinances allow one sign per street frontage, which effectively allows the placement of two signs on corner lots. Additionally, large residential parcels may be permitted to use either a larger sign or to post additional signs. Lastly, so-called hidden units may be permitted to use more than one sign. These are typically condominiums or townhouses that are nestled in the middle of a development which need more than one sign to be seen from a main road. This is also the case insome communities, like Carmel, where homes are tucked away behind trees, bushes and hills off of the main road. Usually, the number of allowable "SOLD" signs is the same as the allowable number of "FOR SALE" signs.
B. Size Restrictions. Virtually all localities restrict the size of signs. From the ordinances included in the appendix, the sizes range from a low of 24 inches by 18 inches per sign to a high of six square feet per sign. Some ordinances allow for a maximum of square footage of signage per property (12 square feet in Los Angeles). Additionally, some ordinances place restrictions on the size of lettering in the sign (three inches in Carmel).
C. Open House Signs. Sign ordinance provisions for open house signs--i.e., offsite directional signs-- vary widely from community to community. Generally, these restrictions prohibit the placement of offsite signs in the public right-of-way (i.e., median strips) and can only be posted on weekends between certain hours. However, some cities do permit the placement of these signs in the public right-of-way, with certain restrictions to avoid visual obstructions for motorists and pedestrians. For example, the cities of Bakersfield and Carmel allow open-house signs to be displayed on public right-of-ways with city approval. The cities of Fremont, Los Angeles and San Jose allow signs to be posted in the planter or parkway strips with the permission of the adjacent property owner.
lV. EVENTS AT THE LOCAL LEVEL
Controversies surrounding local sign ordinances will come and go depending on various local circumstances. Pressure from residents on government officials to adopt a more restrictive sign ordinance, or more aggressively enforce an existing one, may arise in areas where residents see an increase in real estate signs due to an active real estate market. On the other hand, if the market is quiet in the community, residents won’t see as many signs and probably won’t feel as compelled to pressure for restrictions on their display. In some localities facing revenue shortfalls, government officials may instigate the enforcement of an existing sign ordinance, including the collection of a signage fee and the aggressive confiscation of illegally placed signs along with the collection of a fine. In these instances, government officials are using their powers to regulate the display of signs as a means to increase the visibility and usefulness of a particular municipal department that may feel threatened by budget cuts and/or as a means to increase revenue for the city.
The methods for REALTORS® to use in these circumstances are the same as for all other situations when a city pursues certain areas of its municipal regulatory authority (such as rental property inspections or point-of-sale requirements) to enhance the usefulness of a particular department or to increase revenue; that is, to separate the issues. In the case of real estate signs, it is encumbant upon REALTORS® to point out to local officials that the placement of real estate signs is really not an issue in the community (if that is indeed the case), or that the regulations are being enforced overzealously and unreasonably, in which case a more reasonable approach to enforcement should be devised.
REALTORS® should be prepared to offer their own suggestions and alternatives for an acceptable approach. If a sign ordinance is being used as an indirect means of collecting revenue for the city, REALTORS® should attempt to distinguish the city’srevenue issues from the issues pertaining to the placement of signs. There are many things REALTORS® can do to assist local government with budget problems. (See C.A.R.’s manual READING BETWEEN THE LINES; A REALTOR’S® Guide to Local Government Budgeting.)In circumstances where the controversy of sign display is a product of a bustling real estate market, the ultimate solution is the art of compromise. REALTORS® should work with city officials to craft a solution that is consistent with the spirit of the legal and legislative rulings outlined above--balancing the rights and needs of REALTORS® and property owners to display real estate signs with the rights and needs of the local community to control for visual clutter and public safety. In short, if a proposal allows REALTORS® a reasonable amount of sign display, they should support it. If a proposal denies them their rights (as outlined above) or places unreasonable restrictions and/or costs on REALTORS® and property owners, REALTORS® should express their displeasure with the provisions of the proposal and work to craft a more reasonable alternative.
Here are some exmaples: While revising the city’s sign ordinance, the Ventura City Council proposed to completely eliminate the provision in its ordinance allowing seven offsite open house signs. Instead, only onsite signs would be allowed. On the night the council was to vote on the proposal, over 150 REALTORS® packed the council chambers. Representatives from the local Board, as part of their testimony, used an overhead projection of the city’s street map and asked each council member to locate his/her home on the map.
The REALTORS® then showed the council members the minimum number of open house signs that would be needed if each council member decided to sell his/her house. When they demonstrated that the mayor’s house would require at least seven open house signs to be seen from a main road, the council withdrew its proposal. As a compromise, the revised ordinance permits a maximum of six offiste signs for each open house.
REALTORS® also are encouraged, whenever possible, to work with their local officials over the long term of the ordinance drafting process to ensure that their interests are incorporated in a reasonable fashion into the provisions of the ordinance.
In Bakersfield, for example, a REALTOR® was appointed to the city planning commission’s sign committee. The committee convenes whenever issues of sign regulation arise. This appointment assures that the local REALTOR® community willalways have a reliable means to monitor and comment on any sign issues that arise.
In San Jose, REALTORS® siezed the opportunity to address community concerns when the city chose to revise its existing sign ordinance (as it does every for or five years).Their involvement ensured the best possible outcome of these discussions and reassured local residents who had concerns about real estate signs that the local Association was willing to work with them on these issues. Their involvement paid off in the form of provisions which allow the display of signs in the park strip (the grass strip between the curb and sidewalk) and up to four signs at any four-corner intersection. The success of this ordinance also served as a model for similar ordinances that wereadopted in four other cities in the county and in the county itself.
When local homeowners’ associations in Santa Clarita faced with complaints about the placement of real estate signs began to adopt and enforce their own regulations, the local Association of REALTORS® immediately lobbied the city council to adopt a sign ordinance that was workable and acceptable to REALTORS®, and which, according to state law (see above), would preempt any regulations that the homeowners associations would attempt to enforce. After over a year of persistent lobbying and negotiating with city officials, the REALTORS® and the city signed a written agreement which governed the placement of signs and included such necessary provisions as the placement of signs in (specified) parkways and the display of banners where they are the only available means of sign display. This agreement remains in force today, after several years of successful implementation.
Protections exist in court precedent and California statutes that protect the rights of REALTORS® and propertyowners to market property through the display of signs on the property and off-site. On the other hand, local governments retain the right to regulate the time, place and manner in which such signs are displayed, and they may prohibit signs on public property. This is an equitable balance that preserves the property owner’s need to inform the community of the availability "FOR SALE" or lease of his/her property along with the community’s need to protect against eyesores and prevent safety hazards. REALTORS® have multiple opportunities to work with local officials on the provisions of a sign ordinance to ensure that the above concerns are indeed kept in balance. They can do this through advocacy methods and through negotiation and discussion with city officials. In any event, REALTORS® should take it upon themselves to be knowledgeable of local sign restrictions and to follow them closely, so as to avoid any controversy, which could hurt their credibility in future discussions of these issues.