A New Jersey homeowners association case on constitutional rights

February 17, 2004

By Professor Frank Askin (View author info)

Although we are disappointed that Judge Shuster failed to find that the Twin Rivers Homeowners Association was a quasi-municipality subject to the constraints of the New Jersey Constitution, we are gratified by his decision regarding the obligations of the association to provide members' access to the community room, prohibiting the gagging of Board members who wish to discuss association business with their constituents, and to guarantee candidates for the governing board access to voters' lists.

For members of community associations in New Jersey, this decision should mean an end to arbitrary decision making concerning access to common facilities, to restrictions on access to governance information and to restrictions on electoral participation.

More importantly, this is just the first round in a battle over democratic rights in homeowner associations. In professional football, this is what is referred to as the end of the regular season, where the only thing that matters is getting to the post-season. We have now advanced to the playoffs – the appellate process.

And just as happened in the decade-long fight over the right of free speech at New Jersey shopping malls, which the Rutgers Constitutional Litigation Clinic and th American Civil Liberties Union of New Jersey lost at the trial court level, we remain confident of ultimate vindication by the State Supreme Court.

Of the nine original counts of the complaint, the plaintiffs have thus far prevailed on four:

1. The association may not deny members the right to rent the community room for a meeting;

2. An association resolution forbidding members of the Board of Trustees to discuss certain governance matters with their constituents without approval of the full Board has been struck down under state statute;

3. Candidates for the Board of Trustees are entitled to a list of voters without agreeing to pay the association an arbitrary monetary penalty if they are accused of misuse of the list;

4. The right of members to tape the proceedings of Board of Trustees meetings was resolved in favor of the plaintiffs by consent of the parties earlier in the proceedings.

Ultimately, we expect to prevail on the remaining issues: the right to post political signs on homeowners lawns; equal access to the community newspaper; a democratic voting system for election of board members; the charging of an excessive fee for rental of the community room; greater access to association governance documents; and an inexpensive Alternative Dispute Resolution System (ADR) for resolving disputes between the board and homeowners.
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