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to Section One | to Arts & Entertainment
posted Friday, September 21, 2012 - Volume 40 Issue 38
Renters' rights and Referendum 74
Section One
ALL STORIES
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Renters' rights and Referendum 74

Hang that Approve R-74 sign in your window, no matter what your landlord says

by Mike Andrew - SGN Staff Writer

Campaign season always brings up the question of whether tenants can legally hang political signs in their windows, especially in neighborhoods like Capitol Hill where so many of the residents are renters.

This is not just an abstract issue, as the recent controversy over an Approve Referendum 74 fundraiser at the Grenada Apartments on Belmont Avenue shows. Landlord Breier-Scheetz Properties attempted to prevent a couple from holding a fundraising party in their apartment, and backed off only when threatened with a lawsuit.

Breier-Scheetz - which contributed $20,000 to defeat marriage equality - is now attempting to prevent its tenants from displaying Approve R-74 window signs.

In spite of what landlords might say, such a prohibition is illegal under both the state constitution and ordinary state property law.

There is, in fact, established case law on this very issue: Paulsen v. Seamark Properties, Inc. (1985). The law is explained in an enlightening 1986 article by attorneys James E. Lobsenz and Timothy M. Swanson, who represented the plaintiff, Virginia Paulsen, in the case. The article is available through Seattle University's online law library at digitalcommons.law.seattleu.edu.

In 1984, Virginia Paulsen was a tenant at the Westbridge Apartments in Bellevue, owned by Seamark. As a condition of moving in to the apartment complex, she signed a lease that stated, 'No signs or placards shall be posted in or about the apartment building without written permission of the Landlord.'

When Paulsen subsequently put up a political campaign sign in her window, the building manager told her to take it down. She then wrote to Seamark asking permission to display the sign. Seamark said no, writing back that 'if we allowed one person to post a sign, we would have to allow everyone to do the same&'

Paulsen filed suit against Seamark in King County Superior Court, saying the landlord had violated her free speech rights under Article I, Section 5, of the Washington Constitution.

The court found in Paulsen's favor, saying that the part of the lease forbidding signs was 'an unlawful prior restraint on tenant freedom of speech.' The decision barred Seamark from preventing tenants from displaying political signs on the doors or windows of their apartments.

1ST AMENDMENT NOT AT ISSUE
People might think they have a First Amendment right to hang a campaign poster in their window, but this is not the case. The First Amendment to the U.S. Constitution limits what government entities can do, but it does not limit what private parties such as landlords can do, so it does not create rights that an individual can enforce against their landlord.

The Washington Constitution, on the other hand, empowers individuals, rather than limiting government.

Where the First Amendment says, 'Congress shall make no law & ,' Article I, Section 5, of the state constitution says, 'Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.'

In other words, if 'every person' in the state 'may freely speak, write and publish,' then every person has rights that are enforceable against private parties like landlords if they attempt to abridge those rights.

This view of the state constitution was upheld by the Washington Supreme Court in Alderwood Associates v. Washington Environmental Council (1981), and State v. Coe (1984).

Article I, Section 19, of the state constitution says, 'All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.'

Lobsenz and Swanson argue that 'if courts uphold a landlord's right to censor or flatly prohibit the political expression of his tenants, then only the landlord would enjoy the freedom to publicly endorse the candidate of their choice in their own residential neighborhood,' and this would violate the state constitution because 'an election where one class of citizens is inhibited from participating fully in the election debate could hardly be deemed a 'free and equal' election.'

In Alderwood, the state Supreme Court also endorsed this view of free elections.

WHAT ABOUT LANDLORDS' RIGHTS?
But landlords might assert that they have rights as well - ones that conflict with their tenants' rights.

For example, landlords have property rights that might conflict with the free speech rights of their tenants, if they require tenants to sign leases that forbid signage in their windows.

Landlords also have free speech rights under the state constitution just like tenants do, and that includes a 'right to remain silent' about political issues. Landlords and employers might object to being forced to participate 'by implication' in speech they disagree with when, for example, a tenant posts a sign on their property or an employee wears a button to work.

However, Washington state courts have held for many, many years that tenants also have property rights over their homes, even when they rent them from a landlord.

In fact, the state Supreme Court found in Noon v. Mironski (1910) that 'during the existence of a lease a lessee is for all general purposes the owner of the demised premises.' In other words, tenants have the same property rights over their own units that their landlords have over the building in which the unit is leased.

In Aldrich v. Olson (1975), a Washington appellate court found that when a landlord restricts the tenant's free speech use of premises within the tenant's exclusive possession - including the walls, windows, and doors of the tenant's unit - the tenant may sue the landlord for 'breach of the covenant of quiet enjoyment, a covenant implicit within all residential lease agreements.'

Lobsenz and Swanson also argue that a tenant even has the right to post signs in the common areas of the apartment building. While the landlord may regulate the use of common areas, they say, the landlord may not completely deny the tenant the ability to put common areas of the building to 'lawful use,' which under Washington law would include political speech, writing, and publication.

THE BOTTOM LINE
Even when a tenant voluntarily and with full knowledge signs a lease that contains restrictions on signage, courts need not uphold those provisions if they contravene important public policies.

One of those policies is the unrestricted use of one's own property - in this case, the tenant's unrestricted use of his or her own unit, in which his or her property rights are superior to those of the landlord. Another policy that comes into play is the state's interest in free political expression and maximum public participation in political discourse.

The conclusion is clear: Go ahead and put up that Approve R-74 sign. It's your right.

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