Report Title:

Political Speech, Landlord-Tenant Code, Sign Posting

Description:

Provides that a landlord shall not prohibit a tenant of a single family residence from erecting, maintaining, or displaying an otherwise legal sign or outdoor advertising device that urges voters to vote for or against any person or issue; allows reasonable restrictions to comply with applicable building and housing laws affecting health and safety. (HB373 HD2)

HOUSE OF REPRESENTATIVES

H.B. NO.

373

TWENTY-SECOND LEGISLATURE, 2003

H.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to political speech.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that during the 2002 primary and general elections, candidates learned that persons wanting to support a political candidate who leased or rented property were prohibited by their landlords or land owners from placing campaign signs at their residence.

These situations bring to light a conflict between two separate, yet equally important rights--the citizen's need to reasonably exercise political speech, and the ability of land owners to use their property without unreasonable government intrusion.

The common law has long held that every owner of real property has the right to restrain the use of land by grantees within limits "to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land" that is retained. Browder, Cunningham, and Smith, Basic Property Law, at 662, citing 11 Gray 359, 11 Mass. 359, 71 Am.Dec. 716-17. As such, the courts have held that a personal covenant or agreement restricting the use of land is valid and binding in equity on a purchaser taking an estate with notice.

However, there are limitations on this common law right. Covenants or agreements that restrict the use of land must be "exercised reasonably, with a due regard to public policy, and without creating any unlawful restraint of trade." Browder, Cunningham, and Smith, supra, at 662 (emphasis added).

The legislature further finds that the foundation of democracy rests on the ability of citizens to participate in and express political speech. In Palko v. Connecticut, 302 U.S. 319, Justice Cardozo characterized protection of speech as a "fundamental" liberty in part because "our history, political and legal," recognized "freedom of thought and speech" as "the indispensable condition of nearly every other form of freedom."

Accordingly, the legislature believes that a citizen's need to reasonably exercise political speech must be protected as long as it does not unreasonably interfere with the landowner's ability to use their property.

The purpose of this Act is to regulate the use of personal covenants and agreements under chapter 521, Hawaii Revised Statutes, so that a tenant may exercise political speech in a reasonable manner. Specifically, this Act provides that in a rental agreement for a single family residence, a landlord shall not prohibit a tenant from erecting, maintaining, or displaying an otherwise legal sign or outdoor advertising device that urges voters to vote for or against any person or issue; provided that reasonable restrictions are permissible to comply with applicable building and housing laws affecting health and public safety.

SECTION 2. Section 521-52, Hawaii Revised Statutes, is amended to read as follows:

"§521-52 Tenant to use properly. (a) The tenant shall comply with all obligations or restrictions, whether denominated by the landlord as rules, or otherwise, concerning the tenant's use, occupancy, and maintenance of the tenant's dwelling unit, appurtenances thereto, and the premises of which the dwelling unit is a part, if:

(1) Such obligations or restrictions are brought to the attention of the tenant at the time of the tenant's entry into the rental agreement; or

(2) Such obligations or restrictions, if not so known by the tenant at the time of the tenant's entry into the rental agreement, are brought to the attention of the tenant and, if they work a substantial modification of the tenant's bargain under the rental agreement, are consented to in writing by the tenant.

(b) No such obligation or restriction shall be enforceable against the tenant unless:

(1) It is for the purpose of promoting the convenience, safety, or welfare of the tenants of the property, or for the preservation of the landlord's property from abusive use, or for the fair distribution of services and facilities held out for the tenants generally;

(2) It is reasonably related to the purpose for which it is established;

(3) It applies to all tenants of the property in a fair manner; and

(4) It is sufficiently explicit in its prohibition, direction, or limitation of the tenant's conduct to fairly inform the tenant of what the tenant must or must not do to comply.

(c) In a rental agreement for a single family residence, a landlord shall not prohibit a tenant from erecting, maintaining, or displaying an otherwise legal sign or outdoor advertising device that urges voters to vote for or against any person or issue; provided that reasonable restrictions are permissible for purposes of complying with applicable building and housing laws affecting health and safety.

[(c)] (d) If the dwelling unit is an apartment in a condominium property regime the tenant shall comply with the bylaws of the association of apartment owners and if the dwelling unit is an apartment in a cooperative housing corporation the tenant shall comply with the bylaws of the corporation."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.