Free speech or HOA rules?

From the Trenton Times:

Homeowner free speech battle heads to court

The New Jersey Supreme Court will hear arguments in January over whether homeowners surrender some of their rights when they move into developments governed by homeowners associations.

Dissident residents of Twin Rivers, a 10,000-resident strong complex in East Windsor, claim they have the right to put up political signs and hold political rallies in the development’s common room or print whatever they please in the association’s newsletter.

The homeowners association disagrees, saying the residents must abide by the rules that they agreed to when they moved into the development.

Plaintiff Haim Bar-Akiva is pleased the case, filed in 2000, will be heard by the Supreme Court, adding, “Especially, if there will be a decision in our favor but we cannot read the judges’ minds.”

Recently, New Jersey Public Advocate Ronald K. Chen filed a friend of the court brief, noting that 1 million New Jerseyans — or 40 percent of residents — live in property governed by homeowner associations and the number of residents moving into those communities is growing.

In the brief, the public advocate sided with the dissident homeowners, asking the court to rule that the homeowners do have a constitutional right to free speech that supersedes rules imposed by the homeowners association which should be treated as a “private government.”

“As more people come under the regulatory authority of homeowners’ associations, and as those associations assert increasing control over the basic expressive and associational rights of their residents, the imperative to extend constitutional protections to these communities grows as well,” the advocate’s brief stated.

“When homeowners’ associations function as private municipal governments, and seek to restrict their residents’ fundamental rights to free expression and association, they should be subject to the constraints of the state Constitution,” it also noted.

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4 Responses to Free speech or HOA rules?

  1. Pat says:

    ‘”You don’t need a permit to put up the American flag,” Trump said in October. “The day you need a permit to put up the American flag, that will be a sad day for this country.”‘

  2. metroplexual says:


    Yeah but his flag was blocking people’s view of the beach because it was so enormous, which was the purpose of the ordinance in West Palm. The flag was more about Trump’s ego than patriotism. Nobody says Trump can’t fly a flag but just how big he can fly, where would it end if there was no limits?

    Sonny Bono got into politics because his sign on his restaurant in Palm Springs, CA was too big. He ran for council on a platform of gettig government out of the way of businessmen. He never got to put the big sin up anyway because it really was too big.

    If we did not have zoning ordinances against sign sizes and content we would look like Houston, which has strip club billboards next to the highways that are huge. Not exactly rated G either. It is especially funny when you throw those next to the Mega church billboards.

    I live in a HOA community and I understand why the rules exist: to maintain everyone’s property value. If I as an owner were to paint my house orange and black, put a pickup truck on blocks in the front yard and hang laundry in the yard I would negatively impact my neighbors. As for constitutional rights..well when you sign the CCandRs at purchase it restricts your rights voluntarily. Political signs and even for sale signs are forbidden as well as privacy fencing. The interesting part is I rent and never signed them and my lease makes no mention of them.

    My understanding of this case in NJ is that it was political and even against the HOA so they were putting down dissent in a draconian way. It will get very interesting around here if the judge finds for the plaintiff. It should be noted that CCandRs are replicated throughout the country and most communities have the same general rules. In a place like Phoenix, AZ the choices you have are nearly identical because of the replication and the city and surrounding cities nearly all have HOAs. So in PHX there is no choice but compulsion to HOA rules.

  3. Don Nordeen says:

    The quotations from the Trenton Times article are excerpts, which should have been noted.

    On the basis of our constitutional principles, it is silly that constitutional rights can be “signed away” in a restrictive covenant. Whatever happened to inalienable rights? A citizen should never be able to “sign away” constitutional rights, even in a contract that specifically stated that the signatories agree to do so. No contract should be external to or above the constitution. It is just that fundamental. And in restrictive covenants, there is not even a clear statement that constitutional rights are signed away. It really is silly. How many owners understood when they purposed property subject to restrictive covenants that they were “signing away” their constitional rights?

    Moreover, the U.S. Supreme Court in Shelley vs. Kraemer declared that deed restrictions which discriminate against racial minorities are unconstitutional. Do such unconstitutional covenants only apply to the equal protection amendment or to the entire constitution?

    Retired California Supreme Court Justice was so incensed by a California Supreme Court decision that upheld a contract (covenant) that abridged constitutional rights that he wrote a law review paper, “Condos, Cats, and CC&Rs: Invasion of the Castle Common,” 23 Pepp.L.Rev. 1 (1995) in which he proposed legislation to ensure that constitutional rights shall not be abridged.

    If the courts won’t guarantee constitutional rights for the citizens, then the legislatures should do so by enacting Justice Arabian’s proposed legislation. We don’t have the money to contest this issue in the courts of the 50 states at $1,000,000 a pop.

    We all should be grateful to Frank Askin and his team at Rutgers for advocating what should be obvious to all: constitutional rights shall not be abridged.

    Don Nordeen
    Governance of Property Owners Associations
    URL is .

  4. joe says:

    Political signs and even for sale signs are forbidden as well as privacy fencing.

    Jeeeez, you can’t have privacy either??

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