On September 1, 2010, a three-judge panel of the New Jersey Appellate Division struck down, as an unconstitutional limitation on free speech, a condominium association’s governing documents’ prohibition on posting signs in unit windows, with the exception of a single “For Sale” sign. On October 24, 2011, the New Jersey Supreme Court heard argument on these issues, and is expected to issue an opinion either upholding the Appellate Division’s rejection of such restrictions or overturning the Appellate Division and finding that such signs may be banned. Because many Associations’ governing documents include bans like the one at issue in Mazdabrook, the New Jersey Supreme Court’s opinion could have a wide-ranging impact, and should likely inspire condo associations to review their by-laws so as not to run afoul of its holding.
The case arises out of an association’s suit against a unit owner for failure to pay maintenance fees and other assessments, including fines levied by the condo association for his posting of a sign in the window of his unit promoting his candidacy for a township office. The condo association argued that posting this sign violated its prohibition on placing any signs “on the exterior or interior of any Unit, except for one ‘For Sale’ sign on the interior of a Unit.” The unit owner challenged this prohibition, and the accompanying fines, as a violation of his free speech rights. The trial court agreed with the association, but the Appellate Division overturned this decision and ruled that the prohibition was viewpoint neutral, but not content neutral, and thus improperly infringed on the unit owner’s free speech rights.
In arriving at its decision, the Appellate Division applied the three-part test articulated by the New Jersey Supreme Court in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, 192 N.J. 344 (2007), for cases involving alleged violations of free speech rights on private property, which looked at: (1) the nature, purpose and use of the private property; (2) the nature and extent of the public’s invitation to use the property; and (3) the purpose of the expressional activity in relation to both the public and private use of the property. In Twin Rivers, the New Jersey Supreme Court rejected a free-speech challenge to a condo association regulation that permitted residents to post signs in any window of their unit and outside in their flower beds, provided that the sign was within three feet of the unit. The rule further prohibited posting of any signs on utility poles and natural features within the community. In that case, the Supreme Court endorsed the ordinance because it affirmatively granted the unit owner free speech rights on its own property, with only “minor restrictions” that did not amount to a “untoward interference” with any of the owner’s constitutional or property rights. Nonetheless, the Supreme Court stopped short of holding that “residents of a homeowners’ association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.”
The Appellate Division appears to have found a situation that fit within the caveat articulated by the Supreme Court in Twin Rivers. The Appellate Division held that neither of the first two elements of the three-part test weighed in favor of finding that the unit owner’s free speech rights had been violated. Specifically, the Appellate Division held that the condominium development was for private purposes only, and that the public enjoyed only a “limited invitation to use the property,” neither of which “favored a finding that the Association’s rules and regulations violated plaintiff’s constitutional rights.” However, unlike the court in Twin Rivers, the Appellate Division ruled that the prohibition on all window signs except “For Sale” signs was unconstitutional because it was: (1) “not content neutral,” because it “favor[ed] commercial speech;” and (2) overbroad because it foreclosed an entire means of expression without a readily available alternative. Tellingly, the Appellate Division ruled that the unit owner’s right to free speech outweighed “any concerns that the Association may have regarding the use of condominium property.”
In a dissenting opinion, one justice on the three-judge Appellate Division panel argued that the limitation imposed by the association’s prohibition was not an “untoward interference with” the unit owner’s fundamental constitutional rights because the owner had “readily available alternative” forms of speech. Among other things, the dissenting justice noted that the unit owner could have gone door to door to speak with voters about his candidacy, or attended association meetings to advance his cause, or stood at the entrance to the development and handed out campaign flyers. Moreover, the dissenting judge noted that the association’s prohibition on window signs was “included in the bundle of rights, restrictions, encumbrances, and easements in the deed to the defendant’s unit.” When the owner purchased the unit, he represented that he would not violate any of these rights or restrictions, including the one prohibiting the posting of window signs. As such, the unit owner had effectively waived whatever free speech rights he might have otherwise been able to assert in connection with that form of expression. Unfortunately, the dissenting judge was unable to convince either of the other two judges on the panel to join this position.
As noted above, prohibitions like the one struck down in Mazdabrook are relatively common in the governing documents of condominium associations throughout New Jersey. In light of the Appellate Division’s ruling, any association with such a prohibition should consider either revising its governing documents to remove any such prohibitions, or suspending the enforcement of any such prohibition pending the New Jersey Supreme Court’s decision.