It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.
It is an issue we have reported on before (here), but yesterday the New Jersey Supreme Court ruled that homeowners’ associations may not entirely ban homeowners from displaying political signs. In Mazdabrook Commons Homeowners' Association v. Khan, the New Jersey Supreme Court held that homeowners' associations are allowed to impose reasonable content-neutral rules (e.g., regulating the size, number, and location) of signs, but cannot ban them outright and cannot, even under the guise of reasonable content-neutral rules, “distinguish among different types of political signs.” This decision is obviously important to community associations, but also has a broader impact because it reiterates the New Jersey Supreme Court’s belief that individual rights identified in the New Jersey Constitution are protected, not against abridgment by the government, but also by certain conduct from private entities.
Jude Wefing, sitting by assignment from the Appellate Division, was the lone dissenter. She criticized the majority for both reaching the constitutional issue in the first place, and for its decision on that issue. In connection with the former, Judge Wefing noted that the dispute between the parties centered primarily on fines related to the homeowners’ growing of a “rose vine” over the homeowners’ association’s objections about the size and placement of the “vine.” (In a footnote, Judge Wefing noted that she referred to the offending plant as a “rose vine” only because the majority did so, even though “[a] rose is a shrub, not a vine,” and thus “the plant in question must have been a climbing rose.”) As a result, the record regarding the issue with the political signs was too sparse, in Judge Wefing’s opinion, to justify reaching the broader constitutional issue.
When it came to the substantive issue, Judge Wefing parted with her colleagues on a more fundamental level:
My colleagues rightly note our nation’s and our state’s commitment to a free and vigorous debate of public questions. I have no quarrel with that commitment; I embrace it. In my judgment, however, individuals are equally entitled to seek shelter from political debate and division. If a group of individuals wish to live in a common-interest community that precludes the posting of signs, political or otherwise, and have agreed freely to do so, and there is no showing of overreaching or coercion, I would adopt the principles enunciated in [the] dissent in the Appellate Division, that these mutually-agreed upon covenants ran with the land, were reasonable, and were enforceable.
Based on these principles, Judge Wefing concluded: “Some may question the choice to avoid political controversy; I simply recognize the right to make that choice.”
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.
Can a condo association prohibit unit owners from posting signs in the windows of their units? Although many associations throughout New Jersey limit the types of window signs a unit owner can display, a three-judge panel of the New Jersey Appellate division recently ruled that one such provision – banning all signs except those advertising the sale of the unit – was unconstitutional. On September 1, 2010, the panel ruled that the prohibition violated the owner’s free speech rights, and was invalid. (Mazdabrook Commons Homeowners’ Association v. Khan decision). In its opinion, the court ruled that there are instances where even seemingly uniform, neutral rules and regulations might nonetheless amount to invalid restrictions on the free speech rights of unit owners. Because bans like the one at issue in Mazdabrook are common in condo association governing documents, the Appellate Division’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.