Establishing the New America: the NJ Supreme Court opinion in the Twin Rivers HOA case


Last year, the NJ Supreme Court ruled on the free speech issues presented in a homeowners’ suit against the Twin Rivers HOA[i].  This month, law professors Paula A. Franzese and Steven Siegel addressed the court’s opinion in their joint Rutgers Law Journal article[ii] and their concerns regarding the legal constitutional status and public policy toward homeowners associations.  Important legal doctrines, laws, arguments, issues and concepts are explored in this important article. This commentary presents certain issues raised by the authors in their article.


Citing the Court’s opinion,


Our holding does not suggest, however, that residents of a homeowners association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights.[iii]


the authors argue


[T]he Court’s resolution places it . . .  providing a framework for a new constitutional approach to free speech in the context of homeowners associations, while also making clear that traditional private law concepts remain fully applicable to homeowners associations. . . . [T]he Court’s opinion reveals that the Court did indeed announce the framework of a new constitutional approach to CICs [common interest communities] . . . .[iv]


The Court held that a homeowners association’s regulations are not subject exclusively to the private law doctrines of contract and property. Rather, aggrieved residents may also seek constitutional redress.  The Twin Rivers decision is not a model of clarity.[v]


[T]hat determination [the rejection of the Coalition case precedent] could be understood to mean that an aggrieved homeowner’s sole remedy against an association’s speech-infringing regulations lies exclusively in the private-law doctrines of contract and property.[vi]



The New Jersey Coalition precedent spoke of a “historical path of free speech”,  moving from parks, squares, the “commons”, to downtown business districts and shopping malls.  The authors raise the issue, “Similarly, in Twin Rivers, the relevant constitutional question was whether the ‘historical path of free speech’ has moved from public municipalities to private homeowners associations.[vii]


Furthermore, the Court equated “residential” with inherently “private”- a determination made without explanation, and one that is inconsistent with the long held notion that streets held open to the public serve a vitally important function in connection with the rights of free expression and assembly.[viii]


[H]omeowners associations are the inheritors of the realm of open public discourse that once was exclusively undertaken in town halls and on public streets. Today, that discourse often occurs in private “community centers” and on streets that are open to the and maintained by the public with taxpayer dollars, yet nominally under the ownership of homeowners associations.[ix]


The Court’s opinion seems to adhere to the common law “standard reference”, the Restatement of Property, which supports the deference to private property law over constitutional law, “The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law[x].”  Here we have a definite statement that the US Constitution is not the supreme law of the land, that it shares authority with private property law advanced by the real estate special interest, and apparently agreed to by the NJ Supreme Court.  Welcome to New America!


The authors feel that the constitutional question was not satisfactorily delineated.


[T]he Twin Rivers decision is unsatisfactory in many respects, because it lacks clarity and a firm underpinning in settled constitutional doctrine.  The Court’s failure to anchor its decision in established constitutional doctrine is particularly unfortunate, because there is substantial precedent available and adaptable to the homeowners association paradigm [legal concept or model].[xi]


Furthermore, the authors also raise the question of  the proper standard of judicial review.  Simply stated, based on certain factors, the burden that the government must meet to restrict a constitutional right can be any legitimate government interest to a narrowly tailored and strictly defined government necessity that has no alternatives but to restrict the constitutional right.  Which applies to private government HOA restrictions?  It appears the Court rejected traditional constitutional doctrine for some vague new standard.


For example, under settled First Amendment doctrine, government regulation of speech in traditional public forums is subject to heightened judicial scrutiny. In that context, government may enforce such reasonable time, place, and manner restrictions only if the restrictions are content-neutral, are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. [emphasis added].[xii]


The necessary implication is that the Court in Twin Rivers determined that homeowners associations play an important role in the civic life of New Jersey, and thereby warrant a new standard a constitutional standard that reflects the special status of associations. The Court left for another day the delineation of that standard. [emphasis added].[xiii]



Now, no matter how one feels about homeowners associations, it cannot be argued that the acceptance and preference of homeowners associations by homebuyers, government officials, the courts, and by the various state legislatures is creating a New America inconsistent and contrary to the America of our Founding Fathers.  For more reading on Establishing the New America of independent HOA principalities see PVTGOV.




[i] Comm. for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007).

[ii] The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights and Privatized Mini-Governments, Paula A. Franzese and Steven Siegel, 5 RUTGERS J.L. & PUB. POL’Y 630 (2008).  Part of the issue on Homeowner Associations: Problems and Solutions.

[iii] Id., 743.

[iv] Id., 733.

[v] Id., 742.

[vi] Id., 746.

[vii] Id., 739.

[viii] Id., 744.

[ix] Id., 751.

[x]  Restatement Third, Property: Servitudes, § 3.1 Validity of Servitudes: General Rule, comment h, p.359.

[xi] Supra n. 2, 750.

[xii] Supra n. 2, 748.

[xiii] Supra n. 2, 750.

Published in: on September 8, 2008 at 11:31 am  Leave a Comment  

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