Can you sign away your rights with a non-negotiable contract?

December 27, 2004

By George K. Staropoli (View author info)

The following are excerpts from Prof. Frank Askin's Twin Rivers Homeowner Association appeals brief. (located in East Windsor, New Jersey . Brackets are my comments. The brief is attached below

"She [Katherine Rosenberry in CAI's Journal of Community Association Law , Vol. 1, No.1, p 23 (1998)] reports that state action was found under the California Constitution because of Leisure World's municipal attributes."

"Twin Rivers must be recognized as a constitutional actor under the state Constitution required to accommodate the rights of its residents/members to exercise the fundamental prerogatives of citizenship in the operation and governance of the community".

"Twin Rivers homeowners do not waive their constitutional rights by signing contracts containing non-negotiable deed restrictions." And in the footnote on this same page 25, "This argument [that homeowners voluntarily waived their constitutional rights] ignores the doctrine of 'constitutional conditions', which forbids a constitutional actor such as Twin Rivers from conditioning a right to own property on a waiver of constitutional rights." [So why should a private entity be allowed such a conditioning of constitutional rights without the express consent as to such a waiver?]

"That is to say: the source of the 'public policy' that renders unenforceable the restrictive covenants here at issue is the State Constitution itself, the supreme embodiment of public policy of this State."


Note: Professor Askin heads the Rutgers Law School's Constitutional Litigation Clinic. He' attorney for the homeowners and has filed on behalf of ACLU-NJ.