Background
Michael Wilber owns a lot in the Locust Hill subdivision in Jefferson County, West Virginia, a common-interest community governed by a Declaration and Bylaws binding on all unit owners. Article 10, Section 10.2-1 of the Declaration prohibits, among other things, “political campaign signs” on the property. Beginning in 2021, Wilber displayed on a flagpole on his lot a flag bearing the phrase “Biden Sucks,” which he later replaced with a flag bearing the phrase “Let’s Go Brandon” — a phrase widely understood as coded criticism of then-President Joseph Biden.
Locust Hill’s Board issued notices of violation and demanded removal of the flag, but Wilber refused. The association filed suit in the Circuit Court of Jefferson County in August 2022, seeking an injunction on the ground that the flag constituted a prohibited political campaign sign. Wilber answered, denied the violation, and filed a counterclaim alleging that Locust Hill breached the Declaration by failing to hold a required Board hearing before commencing litigation. The circuit court directed the Board to conduct a hearing, which it did in November 2023; the Board unanimously found a violation. The circuit court then dismissed Wilber’s counterclaim as moot and, after a trial using an advisory jury, entered an injunction ordering Wilber to remove the flag.
The Intermediate Court of Appeals (ICA) previously remanded the case in April 2025 for detailed findings of fact and conclusions of law under Rule 52(a). On remand, the circuit court reaffirmed its injunction, concluding that Section 10.2-1 was unambiguous and that “Let’s Go Brandon” constituted a prohibited political campaign sign because it was widely understood as criticism of President Biden. Wilber again appealed.
The Court’s Holding
The ICA reversed the injunction. The court agreed with the circuit court that Section 10.2-1 is unambiguous, but disagreed sharply with how the lower court applied it. Construing the plain language of the covenant and applying West Virginia’s settled rule that restrictive covenants may not be enlarged by implication, the ICA held that a “political campaign sign” is one that advocates the election or defeat of a candidate, promotes a campaign, urges a vote, supports or opposes a ballot measure, or otherwise seeks electoral action. The “Let’s Go Brandon” flag did none of those things: it mentioned no candidate on the ballot, referenced no campaign or election, and solicited no vote. It expressed a political opinion — which the covenant does not prohibit.
The court rejected Locust Hill’s argument that the sign was a campaign sign because a candidate had refused to concede the prior election, noting that the election had concluded and no further votes could be cast. It also declined to rely on North Carolina statutory definitions the circuit court had cited, finding the matter fully resolved by West Virginia covenant-construction principles. The court emphasized that the circuit court’s interpretation effectively converted a prohibition on political campaign signs into a prohibition on political expression generally — an expansion the Declaration’s language does not support.
The ICA affirmed two other rulings. It found no reversible error in the circuit court’s use of an advisory jury under Rule 39(c) of the West Virginia Rules of Civil Procedure, which expressly permits advisory juries in non-jury actions, and it found that the court had retained ultimate decision-making responsibility rather than improperly delegating it. The court also affirmed dismissal of Wilber’s counterclaim, finding that the Board hearing ordered by the circuit court and held in November 2023 cured any procedural deficiency, rendering the counterclaim moot, and that neither West Virginia Code § 36B-3-116(f) nor § 36B-4-117 required an attorney fee award on these facts.
Key Takeaways
- A restrictive covenant prohibiting “political campaign signs” does not, by its plain language, reach displays that express political opinions or criticism of public officials unless the display advocates electoral action — such as urging a vote for or against a candidate or ballot measure.
- West Virginia courts will not enlarge restrictive covenants by implication; HOAs seeking broader restrictions on political displays must amend their governing documents through the procedures authorized by the Declaration and West Virginia Code § 36B-2-117(a).
- A circuit court’s use of an advisory jury under Rule 39(c) is within its discretion and is not reversible error where the court retains and exercises ultimate responsibility for findings of fact and conclusions of law.
- A procedural breach-of-Declaration counterclaim based on an HOA’s failure to hold a pre-litigation hearing can be rendered moot when the court orders, and the HOA conducts, the required hearing before final judgment.
Why It Matters
This decision draws a clear line — at least under West Virginia law — between political opinion and political campaign advocacy in the context of HOA sign restrictions. Homeowners associations that want to prohibit politically themed flags, banners, or displays must use language broad enough to cover political expression generally; a covenant limited to “political campaign signs” will not reach commentary that is provocative or partisan but untethered to a specific candidate, election, or ballot measure. The ruling gives property owners in common-interest communities meaningful notice that HOAs cannot stretch narrowly worded covenants to silence political viewpoints the Board finds objectionable.
The decision also reinforces the practical avenue available to HOAs that disagree with the outcome: amendment. The court noted that Locust Hill’s Declaration permits amendment by a 67% vote of unit owners, consistent with West Virginia Code § 36B-2-117(a), leaving the association free to pursue a broader restriction through proper democratic process rather than litigation-driven reinterpretation.