Background
Michael Wilber owns a lot within Locust Hill, a common-interest community in Jefferson County, West Virginia, governed by the West Virginia Uniform Common Interest Ownership Act. His property is subject to a recorded Declaration and Bylaws containing restrictive covenants, including Article 10, Section 10.2-1, which prohibits “political campaign signs” without Board approval. In 2021, Wilber flew flags from a flagpole on his property — first one bearing “Biden Sucks,” then one bearing “Let’s Go Brandon.” After Locust Hill’s repeated demands for removal went unheeded, the association filed suit in August 2022 seeking injunctive relief, arguing the flags constituted prohibited political campaign signs.
The circuit court denied Wilber’s motion to dismiss, conducted a trial using an advisory jury under Rule 39(c) of the West Virginia Rules of Civil Procedure, and adopted the jury’s findings that the “Let’s Go Brandon” flag was a prohibited political campaign sign. The court granted a permanent injunction ordering Wilber to remove the display. Wilber also asserted a counterclaim for breach of contract, alleging Locust Hill failed to hold a required Board hearing before filing suit; the circuit court dismissed that counterclaim after Locust Hill subsequently held the hearing. On a first appeal, the Intermediate Court of Appeals remanded for entry of findings of fact and conclusions of law under Rule 52(a). The circuit court complied and reaffirmed the injunction, prompting this second appeal.
On the second appeal, Wilber argued that the circuit court misinterpreted the covenant by treating political commentary as equivalent to a political campaign sign, that the advisory jury process was improper, and that his counterclaim was wrongly dismissed.
The Court’s Holding
The Intermediate Court of Appeals reversed the injunction, holding that the circuit court erred in concluding that Wilber’s “Let’s Go Brandon” flag constituted a prohibited “political campaign sign” under Section 10.2-1. Applying West Virginia’s settled rule that restrictive covenants cannot be enlarged by implication and must be construed according to the plain language chosen by the parties, the court held that a “political campaign sign” requires advocacy for or against a candidate, promotion of a campaign, a call to vote, or some other electoral action. The flag at issue expressed a political opinion but did not advocate the election or defeat of any candidate, reference any pending campaign or election, or urge any electoral action — and therefore fell outside the covenant’s prohibition.
The court emphasized that political commentary and campaign advocacy are not synonymous. The fact that the phrase “Let’s Go Brandon” was widely understood as criticism of President Biden was insufficient, because political significance alone does not transform an expression into a campaign sign. The court also rejected Locust Hill’s argument that the sign was a campaign sign because a prior candidate refused to concede, noting that the election had already concluded and no further votes could be cast. The drafters’ choice of the narrower phrase “political campaign signs” — rather than a broader prohibition on political displays generally — was determinative.
The court affirmed the dismissal of Wilber’s counterclaim, finding no reversible error because the alleged procedural deficiency (failure to hold a Board hearing before suit) was subsequently cured when the Board held a hearing and rendered a decision, rendering the counterclaim moot. The court also affirmed the circuit court’s use of an advisory jury, finding that Rule 39(c) expressly authorized the procedure and that the circuit court properly retained ultimate responsibility for findings of fact and conclusions of law.
Key Takeaways
- A restrictive covenant banning “political campaign signs” does not reach political opinion or commentary — to qualify as a prohibited campaign sign, a display must advocate for or against a candidate, urge a vote, promote a campaign, or otherwise seek electoral action.
- West Virginia courts will not enlarge restrictive covenants by implication; HOAs that want to prohibit political displays broadly must use language that clearly says so, and may pursue a Declaration amendment under the requisite supermajority vote.
- An HOA’s procedural failure to hold a required pre-litigation hearing may be rendered moot if the hearing is subsequently conducted and a decision rendered, defeating a homeowner’s counterclaim premised solely on the timing violation.
- A circuit court’s use of an advisory jury under Rule 39(c) is not reversible error where the court properly retained its role as ultimate factfinder and the record shows no abuse of discretion in the jury’s deployment.
Why It Matters
This decision draws a clear line — at least under West Virginia law — between political speech and campaign advocacy in the HOA context. As community associations increasingly seek to enforce sign restrictions against residents displaying politically charged flags and banners, this ruling signals that broadly worded enforcement efforts will fail unless the covenant’s language unambiguously covers the display at issue. Courts will not rewrite restrictive covenants to achieve objectives the drafters did not plainly express.
The decision also serves as a practical drafting lesson for HOA practitioners: associations that wish to prohibit political displays generally — not just electoral campaign signage — must adopt explicit language to that effect and secure the supermajority approval required to amend their governing documents. In the meantime, homeowners in similarly worded communities retain the right to fly flags expressing political viewpoints, so long as those displays stop short of active campaign advocacy.