Published on: September 5, 2012
In condominiums as in society generally, laws and legal theories change over time as technologies, economies and stoical structures evolve. The changes are usually slow, often (though not always) welcome, and occasionally jarring. An apparent change in condominium law falls into the latter (largely unsettling) category.
The change, reflected in a series of recent court cases, is “apparent,” because a handful of cases hardly constitute a judicial trend. But the common theme reflected in these decisions is notable, because it challenges an assumption long held and widely recognized by courts in many jurisdictions that the freedom of speech guaranteed in the U.S. Constitutions does not apply in condominium communities. The legal basis for that view is that while the constitution prohibits government at all levels – local, state and federal – from abridging the first amendment rights of citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.
We have written previously about two court decisions addressing the freedom of speech question – one in Massachusetts (Board of Managers of Old Colony Village Condominium v. Preu), the other in New Jersey (Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n.). The New Jersey Supreme Court has just added a third decision to this series — Mazdabrook Commons Homeowners’ Association v. Khan—strengthening the free speech protections of condominium owners and, as a result, somewhat weakening the authority of community associations to impose rules restricting those rights.
The legal battle in this case involved a rule barring all signs in the condominium community except those advertising units for sale. A resident (Khan), who was running for Town Council in a local election, challenged the rule when the board ordered him to remove signs promoting his candidacy. The signs were posted inside his unit but visible from the outside.
Property Rights vs. Speech
The trial court agreed with the community association that the regulation barring signs was reasonable and consistent with the board’s authority to establish rules governing the community. An Appeals Court disagreed, finding that the near absolute ban on signs impinged unconstitutionally on Khan’s free speech rights. The association appealed that decision to the state Supreme Court, which agreed with Khan, concluding that his right to free speech – in this case, political free speech – trumped the property rights of the community association.
Like the lower courts, the Supreme Court cited the Twin Rivers decision and several New Jersey decisions preceding that one, distinguishing between publicly owned commercial properties, which invited public access, and private residential properties, which did not. The difference the courts defined: Commercial properties (and universities) must respect freedom of speech but private residential properties do not have the same obligation.
The condominium community thought the Twin Rivers decision ended up pretty much in the right place, because it affirmed that community associations are not governmental entities and concluded that the board’s authority and fiduciary obligation to protect the property rights of the association and its residents outweighed the relatively minor infringement on free speech resulting from rules restricting (but not prohibiting) the display of signs.
But the Twin Rivers decision also acknowledged the possibility that an association’s restrictions on speech might go too far, hinting at and laying the groundwork for the court’s different but not contradictory decision in Mazdabrook. As in Twin Rivers, the court noted the need to balance the association’s property rights against the owner’s right to freedom of speech – guaranteed broadly and firmly by the New Jersey state constitution. But in Mazdabrook, the court concluded that the balance tipped toward the plaintiff, Kahn, in large part because the association’ rules restricted political speech, which, the court noted “lies ‘at the core’ of our constitutional free speech protections.”
The court explained: “Political signs advancing a resident’s candidacy are not by their nature incompatible with a private development. They do not conflict with the purpose of the development—unlike signs that might encourage shoppers to leave a mall and shop elsewhere. Rather, signs that support or discuss our political leaders and candidates for office are a small but important part of the fabric of our society. As part of that important debate, a window sign in support of a candidate is a relatively minor interference with private property. …
A “Fundamental” Right
“Political speech in support of one’s candidacy for public office is fundamental to a democratic society,” the court concluded. “It is protected by the State Constitution, which affirmatively guarantees the right of free speech to all citizens. Balancing the minimal interference with Mazdabrook’s private property interest against Khan’s free speech right to post political signs on his own property, we conclude that the sign policy in question violates the free speech clause of the State Constitution.”
Also weighing in Khan’s favor, and distinguishing this case from Twin Rivers, the court found, was the location of the signs – inside Khan’s unit rather than (as in Twin Rivers) in common areas. “Kahn, too, possesses legitimate property rights, and he claims a right to free expression on his own property,” the court noted.
I think this point actually argues more strongly against Khan than for him. The court agreed that owners of a residential property have more authority to restrict free speech than owners of a commercial property. A condominium, I would argue, does not lose its private character because the individual asserting free speech rights is an owner rather than a member of the public. Equally important, a community association that restricts speech is not taking away private property rights the owner expected to have; the owner agreed voluntarily to accept the restrictions as a condition of purchasing a unit in the community.
The New Jersey court expressed serious concerns about whether and how condominium owners can voluntarily waive their constitutional rights. Such waivers, the court said, “must be knowing, intelligent, and voluntary…. [and] at the very least, [they] must be clear.” Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”
The board’s failure to adopt and put in writing the sign approval procedures was a major problem, the court found, seriously weakening the association’s argument that Khan had knowingly waived his rights. But the court also questioned whether fundamental rights can be waived in the context of a condominium purchase “by including waiver language in the midst of a more than 50-page, single-spaced document.”
The court also noted that “tens if not hundreds of thousands of New Jersey residents live in developed communities like Mazdabrook. The proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution – the ‘highest source of public policy’ in New Jersey….For that reason, we cannot accept that a complete waiver of free speech rights in one’s home could be possible in this context.” While a community association can impose “reasonable time, place, and manner restrictions” on freedom of speech, it cannot revoke that right completely, the court said.
Resonating in Massachusetts
On its face, this decision would seem to have limited relevance outside of New Jersey, because it applies as precedent only in that state, and because it relies heavily on the free speech protections in the New Jersey constitution that are stronger and broader than in most other states, including Massachusetts. The decision is resonating more forcibly here than it might otherwise because it follows a recent decision by a Massachusetts Appeals Court (Preu) that similarly seems to limit the authority of community associations to restrict the free speech rights of owners.
As we noted in a previous alert discussing the case, the court found that a law suit filed to enforce a community association’s rights under the state condominium statute constituted a “state action” that could subject association regulations to a constitutional test. We do not hold condominium restrictions on speech and expressive conduct may never be enforceable…” the court said. “We hold only that when an action is brought [under state law] claiming the breach of such restrictions…the restrictions are subject to scrutiny under the First Amendment.”
The court did not specify what level of constitutional scrutiny the courts might apply to association regulations, nor did it address the other key question the New Jersey court tackled, to some extent: Whether owners who purchase a condominium unit voluntarily waive their constitutional rights. The New Jersey Supreme Court indicated that it is likely to set the bar for those waivers fairly high; where the Massachusetts courts will set that bar remains to be seen.
Future court decisions will clarify how the state’s courts will draw crucial legal lines between the rights of condominium owners and the authority of community associations to restrict those rights. But Twin Rivers, Preu and Mazdabrook have opened more widely legal doors that that had been closed, if not locked, before. As a result, community associations should expect that, at least in the near-term, rules restricting freedom of expression will be challenged more frequently by owners. With that likely prospect in mind, boards should:
- Review carefully, and have their attorneys review, all regulations affecting the ability of owners to express themselves by any means – in writing, in speeches, and through the placement of signs and symbols.
- Make sure restrictions are reasonably related to the purposes of the association – for example, protecting the safety of owners or ensuring the architectural integrity of the community.
- Make any restrictions on expression consistent (restrict all signs, not just some of them) and content neutral – focus on the method of expression, not on the ideas expressed. Restrictions targeting the “time, place and manner” of expression may be viewed more favorably by the courts than absolute bans.
- Be very careful about limits on political activity. The New Jersey Supreme Court emphasized the importance of political speech – and the sweeping protections that state’s constitution establishes for it – in the Mazdabrook decision. The Massachusetts constitution doesn’t necessarily match New Jersey’s free speech protections, but Article 9 of the Massachusetts Declaration of Rights specifically protects free elections and could be implicated in challenges to some community association rules.