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Opinion Election advertising on rental properties can be a tricky situation

Who gets to decide if Kathleen Wynne’s or Doug Ford’s or Andrea Horwath’s face goes on the front lawn?

Lawn signs are an important form of political expression but they are also a source of conflict, pitting household occupants against each other in a battle for control of the front lawn. Single-family homes can usually sort out signage rights without too much friction, but things are trickier for landlords and tenants. Ontario tenants will be surprised to learn that the law protects their landlords’ anti-clutter aesthetic more than their right to political expression.

Landlords may not want their property to be used as a platform for political campaigning by tenants, particularly if their politics don’t match. The upstairs tenants may not be happy that the downstairs neighbours are advertising the house as supporting the wrong party. Some landlords try to plant their own signs on properties they have rented out.

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For federal elections, legislation specifically says landlords cannot prohibit tenants from displaying election signs. The law allows reasonable conditions on the size and type of sign and permits rules against displaying signs in common areas such as hallways or lawns. There is no equivalent provision in Ontario’s Election Act and so landlords have greater leeway to control tenant advertising.

A tenant’s rights will depend in part on where they live.

Renters in large buildings are in the worst position. These apartment and condo buildings usually have rules that prohibit the display of any kind of signage. Tenant rights over any green space outside such buildings is restricted. Tenants who are the sole occupants of a house are in a better position. They enjoy exclusive use of their property, including the front lawn, unless something in the lease clearly says otherwise.

In both cases, it is at least arguable that outright prohibitions on elections signs violate a tenant’s statutory right to quiet enjoyment of the leased premises for all lawful purposes. Court challenges in the United States have had mixed results and the legal framework is quite different. There are no reported cases in Ontario addressing the issue. Given the economic imbalance between landlords and tenants, legal uncertainty will likely favour the landlord.

The situation is even muddier for smaller rental buildings and multi-unit houses. If all tenants have a right to use of the front lawn, it is a common area and the landlord retains rights and responsibilities to maintain it. Leases will often specifically state what tenants can and cannot do in common areas. If the lease is silent on any restrictions, all tenants would have the right to display a sign during an election campaign. The landlord’s duty to maintain the common areas means they can impose reasonable limits, such as one sign per tenant. This avoids the lawn being flooded with competing signs and making it unusable for everyone.

Landlords need not fear greater protections for lawn signs. Municipalities already limit what signs can look like and where they can be placed for aesthetic and safety reasons. Tenants will not get away with neon LED banners. Landlords might also take comfort in shorter campaign periods: the electoral reforms introduced by the federal Liberals this week would limit federal campaigns to 50 days. The three-month sign spree before the 2015 general election should be a thing of the past.

Landlords and tenants should both be cautious about removing signs they don’t like. A person is free to remove a sign that was placed on their property illegally. But if the sign was put there lawfully, it may be an offence to damage or remove it. The safer option is to call the responsible campaign and ask them to take it down. This approach has the added benefit that the offending sign won’t simply be considered stolen and replaced.

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The U.S. Supreme Court has described political lawn signs as a venerable form of communication worthy of special protection. Displaying a lawn sign is a small but significant act of political participation. It is one of the few occasions on which Ontarians openly declare their political beliefs. Until Ontario adopts clear measures to protect their rights, tenants may find themselves excluded from an important part of the democratic process.

Stephen Aylward is a lawyer at Stockwoods LLP in Toronto whose practice includes elections law.

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