NJ Supreme Court: Upholds Free Speech in HOAs

guest blog by Deborah Goonan

In the recent landmark victory for HOA residents, Dublirer v. 2000 Linwood Avenue Owners Inc., Amicus Briefs were filed on behalf of both Plaintiff and Defendant. While CAI’s Amicus Brief filed on behalf of the defendant was not considered by the court, due to its late filing date, in this blog, for the sake of comparison, I will briefly summarize the opposing arguments, and offer my analysis.

Note to readers who may not be aware: In legalese, the term Common Interest Community (CIC) is used to encompass what we generically call HOAs: homeowners’ or condominium associations, cooperatives, master planned communities, and the like.

On behalf of Dublirer, Frank Askin, Esq., NJ American Civil Liberties Union (ACLU), argues the Court should uphold appellate court’s ruling in favor of Dublirer because:

· Property rights of a CIC are not absolute, and must yield to “fundamental individual rights.” The CIC is not entitled to dominion over its residents. Askin cites State v. Shack (1971), and this particular passage sums it up quite well:

“Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law.”

· Constitutional rights to free speech and expression outweigh private interests of the CIC, particularly with regard to political activity.

· Askin equates a campaign for the Board of a CIC with running for public office, therefore there must be a fair process.

o Each candidate is entitled to equal time and opportunity to campaign, using the same methods.

o Reasonable restrictions with regard time and place are permissible, but blanket prohibitions against a particular type of communication are not.

o Rules cannot restrict “too much speech,” by making it inconvenient, difficult, or unlikely that residents can exercise their rights without breaking a rule.

· Askin also references the Planned Real Estate Development Full Disclosure Act (PREDFDA), a NJ statute that states that CICs must protect the health, safety, and general welfare of its residents. Excessive restrictions to Constitutional rights to free speech and assembly can be legally challenged on the basis of failing to uphold the general welfare of those who dwell within the CIC.

On behalf of 2000 Linwood (Med-South) Owners Association, Michael S. Karpoff, CAI-NJ Chapter, counter-argues that the court should find in favor of the Defendant, because:

· Constitutional rights do not apply to a CIC, considered private property

· Constitutional rights are not necessary, because CIC residents can rely upon statutes, contractual rights (the governing documents), and other protections such as the fiduciary responsibilities of the Board.

· If the court allows dissemination of information and speech within or by way of common areas (such as elevators, meeting rooms, or hallways), CICs will then be forced to allow members of the general public to the same access. CAI fears “that will interfere with a primary purpose of the private community – to preserve the peace, tranquility, and aesthetics of the residences.” Karpoff does not explain how he draws such a conclusion.

The Supreme Court, in a unanimous decision, largely agreed with Askin’s arguments on behalf of Dublirer. The Court made an important distinction between people who reside on the premises of a CIC and third parties who visit, with regard to applicability of Constitutional protections for free speech and assembly. In essence, the Court has concluded that those who reside in the CIC constitute the CIC’s public, and therefore, political speech of its residents cannot be excessively restricted in the common areas. Each resident must have equal access to the political process, and the Board cannot use rules and restrictions to skew the process to its own advantage.

Finally, there is judicial recognition that statutes and governing documents do not necessarily offer adequate protection of fundamental rights, guaranteed by the Constitution, for CIC residents.

I wonder about the Court’s reference to those who “dwell” on CIC property, as that seems to exclude CIC Members that own units, but do not reside on the property. Some clarification may be needed on that point.

But, in general, I think the NJ decision opens the door for similar challenges in other states. The political process in general – not just political speech and free assembly – is often rife with unfair election processes, unequal access to voting rights (based upon share of property ownership), abridgement of voting rights for those who allegedly violate restrictions or fall delinquent on assessments.

And if the political campaign process is to allow free expression, then why not also allow free expression in any process to amend governing documents, which are akin to local Constitutions or Ordinances? CIC residents have complained about this vexing problem for decades – Boards commonly find ways to circumvent input from members.

What of other Constitutional rights to due process, with true division of powers – where hearings are conducted by neutral judicial process in lieu of a Board-appointed committee in what amounts to a Kangaroo Court?

CAI can no longer argue with confidence that the Constitution need not apply, or that contractual agreements trump the rights of residents in CICs.

References: (see also attached)




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Ward Lucas is a longtime investigative journalist and television news anchor. He has won more than 70 national and regional awards for Excellence in Journalism, Creative Writing and community involvement. His new book, "Neighbors At War: the Creepy Case Against Your Homeowners Association," is now available for purchase. In it, he discusses the American homeowners association movement, from its racist origins, to its transformation into a lucrative money machine for the nation's legal industry. From scams to outright violence to foreclosures and neighborhood collapses across the country, the reader will find this book enormously compelling and a necessary read for every homeowner. Knowledge is self-defense. No homeowner contemplating life in an HOA should neglect reading this book. No HOA board officer should overlook this examination of the pitfalls in HOA management. And no lawyer representing either side in an HOA dispute should gloss over what homeowners are saying or believing about the lawsuit industry.

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