Published on: August 17, 2012
Attorneys and judges have always recognized that community associations are, for all practical purposes, quasi-governmental in nature. They are empowered by statute to levy “taxes” (in the form of assessments) and enact and enforce their own “laws” (being their restrictions, rules and regulations). When those powers have been legally challenged, courts all over the country have, by and in large, upheld them, as long as they have been applied in a reasonable manner. However, the application of constitutional freedoms as a defense to rules enforcement has not historically found a foothold, presumably because of the lack of state action in a private real estate setting.
The legal landscape is now shifting on this subject, it appears. Late last year, the Massachusetts Appeals Court ruled that the written, verbal and nonverbal speech of an individual unit owner may be subject to constitutional protections when their restriction is sought to be enforced by the association in a judicial proceeding. The case, more fully discussed below, is Board of Managers of Old Colony Village Condominium v. Preu, 80 Mass.App.Ct. 728, 956 N.E.2d 258 (2011); further appellate review denied by the Supreme Judicial Court, March 30, 2012.
To put the matter in historical perspective, the first Massachusetts case of any relevance was probably Noble v. Murphy, 34 Mass.App.Ct. 452, 612 N.E.2d 266 (1993), which involved (as so many bitterly fought condominium cases do) the enforcement of a pet restriction against a dog owner. The SJC in Noble enunciated a standard of review based upon “equitable reasonableness,” stating that as long as the restriction has been properly adopted, it is clothed with a very strong presumption of validity, especially when the offending unit owner had record notice of it in advance. The court, however, left the door open for a heightened level of scrutiny where some fundamental right or public policy is at stake.
These issues then lay relatively dormant for years thereafter, both in Massachusetts and in other jurisdictions, at least as far as reported appellate cases are concerned. The issue of free speech in a private community association setting then received nationwide attention with the New Jersey Supreme Court’s decision in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n., 192 N.J. 344 (2007), wherein the court upheld various restrictions on political speech by homeowners, primarily because the restrictions were viewed by the court as relatively minor and still allowed homeowners to place signs in their windows and in their flower beds. Just recently, however, in a case decided by the New Jersey Supreme Court on June 13, 2012, a near-complete ban on political signs imposed by a homeowners’ association was struck down, being held as violative of Article I, Section 6 of the New Jersey Constitution, which provides that “…every person may freely speak, right and publish his sentiments on all subjects, being responsible for the abuse of that right.” Mazdabrook Commons Homeowners’ Association v. Khan, 2012 WL 2121177 (N.J.).
A narrow view of these decisions might be that they were spawned by the broad, affirmative right to free speech contained in the New Jersey Constitution, which is described by that state’s Supreme Court as being one of the broadest in the nation, extending beyond governmental activities and reaching strictly private conduct in certain situations. On the other hand, it could be a sign that the assertion of individual freedoms as a defense against condominium restrictions is about to greatly expand.
The Preu case involved a somewhat unusual set of facts at a residential condominium community in Orleans (Barnstable County), Massachusetts. The case was instituted in Superior Court by the condominium’s Board of Managers against Mr. Preu, a resident owner, seeking recovery of costs, expenses and attorneys’ fees for unit owner misconduct pursuant to M.G.L. Chapter 183A, Section 6(a)(ii), as well as an injunction against further improper contact with the condominium board members. The defendant had developed an extremely antagonistic relationship with not only the association’s president and property manager, but also with at least a couple of his neighbors. His displeasure was manifested by way of loud and profane language, posting notes and signs in the common areas, writing insulting and derogatory notes on checks payable to the condominium, and “flipping the bird” to various individuals and to security cameras. He even went so far as to leave bags filled with dog feces at the door of the association president (claiming that he was simply returning it to its rightful owner, since he said that the president did not properly clean up after his dog). After issuing a series of warnings, the association finally lost all patience and filed suit, seeking damages, attorneys’ fees and injunctive relief. During the course of the Superior Court trial, the judge raised the issue of the defendant’s constitutional right of free speech, eventually ruling against the association with respect to certain aspects of the defendant’s conduct. That decision was then affirmed in part and vacated in part by the Appeals Court.
First, and most notably, the Appeals Court held that judicial enforcement actions involving speech in a private condominium setting constitute sufficient state action to bring constitutional protections into play, citing the U.S. Supreme Court case of Cohen v. Cowles Media Co., 501 U.S. 663 (1991). Having found that freedom of speech applies, seeking injunctive relief against such conduct in the future would constitute an unlawful prior restraint. The court did, however, attempt to emphasize the narrowness of its decision, specifically stating that certain condominium restrictions on speech and expressive conduct may indeed be enforceable, presumably on a case-by-case basis. The court held only that, when action is brought claiming that the breach of such restrictions amounts to misconduct under Section 6 of Chapter 183A, those restrictions are subject to scrutiny under the First Amendment.
The long-range implications of the Preu decision remain to be seen. Given the express limitations of the holding, I believe that reasonable “time, place and manner” restrictions on speech would still be upheld, much like they were in the Twin Rivers decision in New Jersey. The Preu court also noted that no decision was being made as to whether a unit owner could be deemed to have waived his or her free speech rights by purchasing a home subject to previously-recorded restrictions on speech and expressive conduct. The New Jersey Supreme Court rejected such a waiver argument in the Mazdabrook case, but the Massachusetts Appeals Court in Preu has left that question for another day.
Notwithstanding the limited holding of the Preu case, one thing is abundantly clear: Pandora’s Box has now been opened with respect to the assertion of constitutional freedoms as a defense to covenant enforcement at private community associations in Massachusetts. Future disputes could involve any number of claims of individual freedoms: the posting of a sign, the hanging of a flag, or the erection of a religious display, to name but a few. Community associations and their attorneys might respond by drafting and implementing more detailed provisions which regulate these activities as to time, place and manner, while still allowing them to a certain extent, in order to withstand constitutional scrutiny. In light of these recent decisions, however, the enforcement of various types of rules and restrictions may no longer be taken for granted.