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First Amendment rights also apply to HOAs, but you may have to defend those rights in court

By Deborah Goonan

Roberts Rules of Order

If you are in a HOA and you need to know more about Robert's Rules of Order, click here. There is a chapter in the book just for HOA's.

In recent months, several homeowners have scored court victories asserting their first amendment rights, which were violated by their HOAs.

If you have ever lived in an HOA, you probably realize that sometimes the Board tends to go overboard with enforcement of rules. If you’ve never lived in an HOA, you may be wondering, “How is it that HOAs would think they could deny freedom of speech or religion?”

Remember, as I explained in a previous article, HOAs are typically created as corporations, despite the fact that they function as local governments, albeit with limited purposes.  Because they are corporations, the HOA industry, led by trade group Community Associations Institute (CAI), has maintained for nearly 5 decades that the relationship between homeowners and their Association is contractual. The industry argues that HOA Boards and the managers they hire are not considered “state actors” working for the local or state government, but rather volunteers managing the HOA Corporation like a business. Therefore, CAI’s argument has been that Constitutional protections guaranteed by the 14th amendment – including our Bill of Rights – need not apply, because the owners “agree” to the terms of the restrictive covenants by the mere act of taking title to a home within the boundaries of the HOA. 

A little known fact: at the time an HOA is originally created, no state or federal government agency reads, reviews, or approves the restrictive covenants. The problem is, some of those restrictive covenants and the Board-enacted rules based upon them can be unreasonable, ridiculous, or even unconstitutional.

That means it becomes the homeowner’s problem when the HOA Board oversteps its authority, either by enforcing restrictions and rules that are invalid, or grossly misinterpreting the HOA governing documents or statutes. The only way to challenge the HOA is to file a civil suit, and that can drag on for years and rack up a legal bill of 5- or 6-figures.

For most homeowners, going to court is cost-prohibitive. The HOA knows that, and counts on the owner dropping the issue by either complying or moving elsewhere. But a brave few owners with deep pockets, pro bono assistance or self-representation do stand firm and defend their rights.

Here are three recent cases that were decided in favor of homeowners.


1.    Judge rules Orthodox Jewish congregation members can continue to worship in their home-based synagogue

In February 2015, a Colin County, Texas judge threw out an HOA’s case against owners of a home used as an Orthodox Jewish synagogue. The legal battle began in 2013, when an owner by the name of David R. Schneider independently sued the Congregation Toras Chaim and the owners of the dwelling, Mark and Judith Gothelf, for allegedly violating restrictive covenants specifying “single family” use. The HOA intervened in the case in 2014, shortly after Mr. Schneider was elected to the Board of Highlands of McKamy IV & V HOA.

The Liberty Institute assisted the Gothelfs and the Congregation free of charge. Haynes and Boone LLP also represented the Congregation.

Local media and Liberty Institute reported the victory for the small Jewish congregation, who will now be permitted to continue using the Gothelf’s home as a synagogue for their small congregation. The Judge dismissed the case primarily based upon two applicable Texas laws: The Texas Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Both statutes invalidate restrictive covenants against use of real property as a religious institution, upholding First Amendment rights.

The Congregation had been worshipping and studying the Torah in two HOA homes for nearly 3 years before Mr. Schneider moved in, with no past complaints from neighbors. All it took was one intolerant homeowner to instigate a conflict that ultimately pit neighbor against neighbor, and racked up billable hours for the HOA Attorney.

Hopefully now the HOA residents can make amends and everyone can return to getting along with each other.

Reference: HOA’s Case against Dallas congregation tossed, CBSDFW, Feb 4, 2015

2.    NJ Supreme Court finds that Co-op Board violated owner’s rights by denying distribution of campaign leaflets for Association election

In 2008, Robert Dublirer contemplated running for election to the cooperative Board. In order to inform other owners in the 483-unit association of his qualifications and reasons for wanting to serve on the Board, Dublirer had created a leaflet, which he intended to distribute by sliding under the doors of each unit. But the Board required “permission” and then denied Dublirer the right to distribute his campaign leaflets, citing Co-op rules against “littering” and disruption of privacy of unit owners. However, the Board distributed its newsletters in the same fashion, and included remarks critical of Dublirer in its communications with Co-op members.

Dublirer is a former criminal prosecutor in the state of NY, and represented himself in court.

The NJ American Civil Liberties Union (ACLU) filed an Amicus Brief on behalf of Dublirer. The ACLU argued that the Court should uphold an appellate court’s ruling in favor of Dublirer because property rights of an HOA are not absolute, and must yield to “fundamental individual rights.” The HOA is not entitled to dominion over its residents.

Citing State v. Shack (1971), this particular passage sums it up quite well:

“Property rights serve human values. They are recognized to that end, and are limited by it. Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. Their well-being must remain the paramount concern of a system of law.”

ACLU argued, and the NJ Supreme Court unanimously agreed, that Constitutional rights to free speech and expression outweigh private interests of the Co-op Association, particularly with regard to political activity. Rules cannot restrict “too much speech,” by making it inconvenient, difficult, or unlikely that residents can exercise their rights without breaking a rule.

The Court made an important distinction between people who reside on the premises and third parties who visit, with regard to applicability of Constitutional protections for free speech and assembly. In essence, the Court has concluded that those who reside in the Co-op constitute its public, and therefore, political speech of its residents cannot be excessively restricted in the common areas. Each resident must have equal access to the political process, and the Board cannot use rules and restrictions to skew the process to its own advantage.

Ref: N.J. Supreme Court: Fort Lee co-op board violated man's free-speech rights in leafletting case,, Dec 3, 2014

3. NY Appellate Judge rules that HOA overstepped its authority when it fined owners for displaying political signs

Peter and Peg Jasinski have been displaying political campaign signs outside their home since 2004, without incident. Then in 2008, their HOA found them in violation of HOA restrictions, and began to fine them $5 per day. The Jasinskis refused to comply, so in 2012, the HOA filed a lien against their property for a total of $1070.

The Jasinkis have been to court twice. The lower court had ruled in favor of the homeowners, citing the ambiguity of the HOA's restrictions. The HOA Appealed. On appeal, Mr. and Mrs. Jasinskis’ attorney argued that the sign was displayed on a strip of land owned by the town of Queensbury, adjacent to the roads maintained by the municipality. Therefore, the HOA had no authority to enforce its restrictions upon land it does not own. The town regards display of political signs as a free speech issue. Therefore the homeowners once again prevailed upon appeal.

Ref: Judges Show HOA a Sign – Back Off, Post Star, Jan 15, 2015

Finally, we are beginning to see judicial recognition that statutes and governing documents do not align with, and do not offer adequate protection of fundamental rights, guaranteed by the Constitution, for HOA residents.

However, there is an urgent need for state and/or federal review of HOA governing documents, so that owners do not have to spend several years in civil court fighting for their First Amendment and other Constitutional rights.