Homeowner free speech battle heads to court
Courtesy The Times
December 25, 2006

The New Jersey Supreme Court will hear arguments in January over whether homeowners surrender some of their rights when they move into developments governed by homeowners associations.

Dissident residents of Twin Rivers, a 10,000-resident strong complex in East Windsor, claim they have the right to put up political signs and hold political rallies in the development's common room or print whatever they please in the association's newsletter.

The homeowners association disagrees, saying the residents must abide by the rules that they agreed to when they moved into the development.

Plaintiff Haim Bar-Akiva is pleased the case, filed in 2000, will be heard by the Supreme Court, adding, "Especially, if there will be a decision in our favor but we cannot read the judges' minds."

Recently, New Jersey Public Advocate Ronald K. Chen filed a friend of the court brief, noting that 1 million New Jerseyans -- or 40 percent of residents -- live in property governed by homeowner associations and the number of residents moving into those communities is growing.

In the brief, the public advocate sided with the dissident homeowners, asking the court to rule that the homeowners do have a constitutional right to free speech that supersedes rules imposed by the homeowners association which should be treated as a "private government."

"As more people come under the regulatory authority of homeowners' associations, and as those associations assert increasing control over the basic expressive and associational rights of their residents, the imperative to extend constitutional protections to these communities grows as well," the advocate's brief stated.

"When homeowners' associations function as private municipal governments, and seek to restrict their residents' fundamental rights to free expression and association, they should be subject to the constraints of the state Constitution," it also noted.

The AARP filed a similar friend of the court brief taking up the cudgel in defense of residents' free speech rights.

Susan Silverman, an AARP lawyer, said her group is concerned because more and more people 50 years and older are living in community association-governed housing.

Meanwhile, The Community Associations Institute, a trade group, has also weighed in with a brief in favor of the defendants, calling the Appellate Division ruling "startling and unprecedented."

"Never before have our courts held that the state Constitution limits private communities with respect to voluntary agreements among their members," it said.

Previously, Superior Court Judge Neil H. Shuster ruled that the Twin Rivers Homeowners Association was not governed by the state Constitution regarding residents' free speech because it is a private business entity, not a government like a township or borough.

The appeals court disagreed and found that the right to free speech takes precedence over the private property interests of the homeowners association. The homeowners association then appealed to the state Supreme Court.

Barry Goodman, a lawyer for the association, said, "I certainly believe there is no need to apply the constitution to private voluntary homeowners association. The constitution historically has been applied to public not private entities." He noted that 26 states and the U.S. Supreme Court agree.

However, Frank Askin, a Rutgers Law School professor and lawyer for the plaintiffs, said the case "involves fundamental freedom of speech and communication and also the right to due process and a hearing." Property rights do not trump individual rights under the law, he said.

The case is scheduled for Jan. 4.


Dissident homeowners get a voice

"On The Commons" with Professor Frank Askin


Amicus Curiae Brief of the Community Associations Institute 

Response to the amicus curiae brief of the CAI

Lawsuit Tests Power of Homeowner Associations

Homeowners test the power of their own association