In Board of Managers of Old Colony Village Condominium v. Under this latter view, associations are not held to as high of a standard as government agencies, but free-speech issues must still be weighed in cases seeking enforcement of covenants restricting a member’s speech. Superior Ct.1996).Ī small minority – most notably Massachusetts and New Jersey – view HOAs as “quasi-governmental ” not quite a state actor but not the same as any ordinary private citizen. See, e.g., Midlake on Big Boulder Lake, Condominium Association v. The position of the large majority, as noted above, is that a declaration of covenants is a private contractual agreement – enforceable in the same manner, and subject to the same limitations, as any other contract. As a result, there is some noteworthy variance in how state courts view associations under their home-state constitutions. Constitution, they have significantly more latitude when construing state constitutions. Statutes authorizing associations are enacted at the state level, and state courts usually have jurisdiction over HOA cases.Īnd, although state courts are bound by federal precedent in interpreting the U.S. Notwithstanding the general rule, it’s important to keep in mind that HOA’s are primarily governed by state law. But covenants requiring members to limit noise levels and avoid creating nuisances are routinely upheld. 1981).įor instance, a covenant prohibiting members from selling their homes to, or otherwise associating with, members of a certain ethnic or religious group would be unenforceable because it violates the federal Fair Housing Act. As essentially a private contract, a validly adopted community covenant will generally be respected and enforced by a court unless its application is arbitrary or enforcement would violate some other law. The American legal system affords great deference to the rights of private parties to enter into binding contracts. But a homeowners association would have no problem whatsoever enforcing a restrictive covenant that prohibited the public display of obscene materials within the community. To cite an extreme example, the United States Supreme Court has held that publication of lewd materials can be speech protected by the First Amendment. This is significant to owners of homes included within homeowners associations because the nature of the relationship between an HOA and its individual members is fundamentally contractual.Įvery association has a declaration of covenants, or similarly titled document, which sets forth the duties, obligations, and restrictions of both the association and the members.īecause the declaration is recorded in the local land records, a lot purchaser is deemed to have consented to the terms by accepting the deed to the property, which also typically states that the conveyance is made subject to the declaration. Absent some other statutory protection – such as the right to bargain collectively provided by the NLRA – restrictions on employees’ speech are generally enforceable. 188, 378 N.W.2d 337, 358 (1985).Īs a result, the powerful protections afforded by the First Amendment do not prevent individuals from privately entering into agreements that restrict the speech rights of one or both parties to the agreement.Įmployment contracts, for instance, frequently forbid employees from publicizing their employers’ proprietary information. Likewise, the constitutions of the individual states “serve as limitations on the otherwise plenary power of state governments.” Woodland v. This is because “the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other.” Southcenter Joint Venture v. Specifically, it only applies to the government, and not to private parties. 74, 81 (1980) (recognizing California’s “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”).Īs recent controversies have amply publicized, though, there is an important limitation on the First Amendment. Individual states can, though, enact protections greater than what is provided under federal law. Constitution, including freedom of speech. And, if there was any doubt, the 14th Amendment’s “incorporation doctrine” unequivocally prohibits state and local governments from taking actions or enacting legislation which would violate rights guaranteed by the U.S. Most state constitutions also protect freedom of speech.
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