Why should the NJ Constitution upset contractual understandings?


“Why should the NJ Constitution be invited to upset the contractual understandings that the members of this community have upon purchasing their condominiums and their townhouses?  These people buy-in because they don’t want the . . . .“

This question was asked by a New Jersey Supreme Court Justice during Oral Arguments in the Twin Rivers HOA constitutionality case in January 2007.  It is a very revealing question, reflecting the prevalent view within our society, but surprising when coming from a state supreme court justice.  It accepts the false premise that whatever private parties contract together should not be subject to judicial review and the constraints of the US Constitution.

Now, in part, the statement is correct if viewed solely as a previously agreed upon contract with stated obligations, since the Constitution clearly states,  “No state . . . shall pass any . . . law impairing the obligations of contacts . . . .”  Art I, Sec. 10.   Therefore, since the homeowner association Declarations are previously agreed to obligations, the state shall not “upset the apple cart”.  But, it is well-established legal doctrine that the state has the right under its police powers to regulate contracts, and has done so in all arenas except for planned communities with an almost sanctified religious deference and hands-off recoil.  Why the special treatment, also contrary to the US Constitution?

This question by the NJ Justice also reflects a broader, more serious issue that the Constitution is no longer the supreme law of the land.  That, when it comes to HOA Declarations of CC&Rs, private parties may contract to anything they want.   It is even more disturbing when this Justice clearly knows that the constructive notice doctrine binds the homeowner and that there is no explicit surrender of constitutional rights when it comes to the HOA supposed “contract”.  Just to what “contractual understandings” this Justice is speaking of had not been presented to the court, and reflects a personal opinion of the Justice and an abuse of discretion.

Welcome to the New America.


Published in: on December 17, 2007 at 8:57 am  Comments (1)  

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One CommentLeave a comment

  1. There is also a well established body of law that protects citizens from contracting their constitutional rights away in addition to state and federal retroactive
    constitutional restraints.

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