Last month I raised the following questions (“Homeowner Associations: ex post facto amendments, consent to be governed, contracts to avoid the Constitution”, HOA Constitutional Government, October 23, 2007):
Can we enter into a private contract to avoid the application of constitutional protections?
Can individuals contract to establish a governing body that controls and regulates the people within a territory, and avoid adherence to the US Constitution, by means of a contract that is contrary to and ignores the state municipality laws?
The NJ Supreme Court answered these questions with a resounding YES in its Twin Rivers HOA decision, giving support to the establishment of the New America, the United HOAs of America. Property laws and the business judgment rule are sufficient protections for homeowners in HOAs, and Constitutional protections need not intrude into these privately contracted governments. In its rather scant reassurance that constitutional protections are available to homeowners, the Court said,
“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.” P. 32.
View the video clips of the oral arguments made by the industry successfully arguing that HOAs should be left alone since they are the will of the people; and the homeowner arguments relating to the need for constitutional protections and oversight.
The three 7 minute videos, and supplemental materials, including the complete Court decision, can be found at Twin Rivers under the Establishing New America NJSC links.
HOA Constitutional Government 