Homeowners’ Associations & Their Limitations on Free Speech

I. Introduction

Free speech is a right guaranteed by the First Amendment, but is it possible to give up this right if you move into a neighborhood governed by a homeowners’ association? The New Jersey Supreme Court had to decide this issue when a group of residents subject to the rules of their homeowners’ association were restricted from posting signs on their lawns or the common areas of the community. [1] Although the ruling is limited to application in New Jersey, homeowners’ associations everywhere were watching the case closely to see whether it would have an impact on how their state dealt with such constitutional challenges to their rules and regulations. [2] This article will explore the outcome of the New Jersey case as well as its implications on homeowners’ associations elsewhere.

II. The New Jersey Supreme Court Ruling

In New Jersey, the Twin Rivers Homeowners’ Association was sued over the rules it imposed on its residents restricting the posting of signs (including political signs) on residential property and the allegedly unequal access to voicing concerns via the Association’s monthly newspaper. [3] These rules were challenged as being unconstitutional restrictions on the residents’ rights to free speech. [4] The unhappy residents of the Twin Rivers Homeowners’ Association (named in the case as the Committee for a Better Twin Rivers) based their argument on the fact that the Association had "effectively replaced the role of the municipality in the lives of its residents," and as a result, the rules governing the Association should be subjected to the New Jersey Constitution’s free speech and free association clauses. [5] The New Jersey Supreme Court upheld the trial court’s finding that although the Twin Rivers Homeowners’ Association "asserted considerable influence on the lives of the [development] residents," much of the impact "was a function of the contractual relationship that the residents entered into when they elected to purchase property" in the Twin Rivers development. [6] The Court recognized that the guarantees of free speech could be waived, which was the case here when the residents signed the contract to abide by the Association’s regulations. [7]

Ronald L. Perl, president of Community Associations Institute, was pleased with the result and in a press release declared that the "decision clearly defines associations as businesses and respects the private, contractual agreements among homeowners who share the same expectations of home ownership." [8]

III. How Twin Rivers Will Affect Other States

It is important to note that the New Jersey Supreme Court acknowledged that the New Jersey Constitution’s "free speech provision is broader than practically all others in the nation." [9] The majority of jurisdictions require some state action "before the free speech and assembly clauses under [the] constitution may be invoked." [10] Thus, the implication here is that if New Jersey failed to acknowledge that homeowners’ associations act as a municipality when they enact rules to govern their communities, it is unlikely that a state with a higher bar for free speech violations will conclude that a homeowners’ association is acting as a municipality for the purpose of determining whether a state action has taken place. This seems to align with the opinions of real estate news commentators as well, unless a homeowners’ association takes on such a form where the services they provide are undeniably similar to that of a municipality. [11] However, as noted in the Twin Rivers case, the services provided for by a municipality like schools, courts, and police and fire departments, are unlikely to ever be provided by a homeowners’ association in such a way as to trigger the state action element. [12]

This case is also viewed as a demonstration that the courts "are not going to intervene and overturn reasonable rules that govern those who have contractually committed to follow them." [13] Despite free speech protections, courts are unlikely to find a basis to protect free speech when homeowners’ association rules are "clear and consistently applied." [14] Connecticut real estate attorney Gurdon Buck stated it plainly, "The rights of free speech can be limited by private contract." [15]

As noted in the Twin Rivers opinion, the residents had the option to purchase homes elsewhere, but chose to subject themselves to the regulations of the Twin Rivers Association in exchange for owning property in that development. With that kind of choice available, it is unlikely that courts will conclude differently than the New Jersey Supreme Court, because the homeowner effectively waives his rights when he signs that contract. There was nothing in the opinion to suggest that the residents were not aware of the rules prior to closing or that the Association was favoring certain parties with respect to its adoption or application of these rules, and because of this, the homeowners were out of luck when they attempted to challenge the rules that they voluntarily accepted when they purchased homes in Twin Rivers. Unless homeowners’ association members can make a showing that they did not get what they bargained for or that the association is unfairly imposing rules amongst its members, it is unlikely that they will prevail in free speech challenges to their association rules and regulations.

Sources

[1] Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, 192 N.J. 344, 349 (2007).

[2] Mark K. Payne, A Constitutional Right to Free Speech in Your Association? Not Yet, Colorado Homeowners Association Law Blog, Aug. 8, 2007, available at http://www.cohoalaw.com/what-the-courts-say-a-constitutional-right-to-free-speech-in-your-association-not-yet.html (last visited Nov. 26, 2007).

[3] Committee for a Better Twin Rivers, supra note 1, at 352-53.

[4] Id.

[5] Payne, supra, note 2.

[6] Committee for a Better Twin Rivers, supra note 1, at 366.

[7] Id.

[8] Frank Rathburn, New Jersey Supreme Court Sides with Associations, AHRC News Services, July 26, 2007, available at http://www.ahrc.com/new/index.php/src/news/sub/article/action/ShowMedia/id/3726 (last visited Nov. 26, 2007).

[9] Committee for a Better Twin Rivers, supra note 1, at 364-65.

[10] Id.

[11] Payne, supra, note 2.

[12] Committee for a Better Twin Rivers, supra note 1 at 365.

[13] Bob Hunt, HOA Rules May Restrict Free Speech Rights, realtytimes.com, Realty Times, Nov. 8, 2007, available at http://realtytimes.com/rtapages/20071108_hoaspeech.htm (last visited Nov. 26, 2007).

[14] Jay Romano, YOUR HOME; Your Board Can Ban Political Placards, New York Times Online, Sept. 5, 2004, available at http://query.nytimes.com/gst/fullpage.html?res=9805E7DF1331F936A3575AC0A9629C8B63 (last visited Nov. 26, 2007).

[15] Id.

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