This June 13th extremely important NJ Supreme Court opinion in Mazdabrook deals with the fundamental constitutional question that the homeowner had waived his rights when he agreed to the CC&Rs covenants, which are broadly stated, vague, or implied. I have repeatedly argued that homeowners do not! This opinion will have national impact as other states will follow suit.
Mazdabrook involved the right of a homeowner to place political signs on his private property. The NJ Supreme court said there was no waiver of free speech rights.
Moreover, Khan did not waive his constitutional right to free speech. To be valid, waivers must be knowing, intelligent, and voluntary, and a waiver of constitutional rights in any context must, at the very least, be clear. Khan was not asked to waive his free speech rights; he was asked — by different rules in three documents — to waive the right to post signs before getting Board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights. . . . . Instead, the exercise of those rights can be subject to reasonable time, place, and manner restrictions. Finally, covenants that unreasonably restrict speech may be declared unenforceable as a matter of public policy. (P. 5).
In other words, that waiver must meet specific requirements, including an explicit statement of a waiver rather than an broad interpretation or implied waiver as is the current status of CC&Rs. However, understand that rights can be waived if these requirements are met.
Waiver is the “intentional relinquishment or abandonment of a known right or privilege.” Although rights may be waived, courts “indulge every reasonable presumption against waiver of fundamental constitutional rights.” To be valid, waivers must be knowing, intelligent, and voluntary.
The NJ Supreme Court seemed to have educated itself about the spread of CC&Rs with its boiler-plate wording that imply or are interpreted as a waiver, and takes a slap at comment h under § 3.1, Validity of Covenants (Restatement (Third) Property: Servitudes), that argued for the doctrine of equitable servitudes (covenants) to be held superior to the Constitution.
The proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution — the “highest source of public policy” in New Jersey. (P.11).
Validity of CC&Rs to bind
Not addressed and unanswered in this opinion is the fundamental question, by extension of what constitutes a waiver, is the question of the validity of the CC&Rs. Is the doctrine of constructive notice sufficient for the CC&Rs to be held as a binding contract? If the CC&Rs are held as invalid, then the question of the waivers of rights becomes moot.
How can the simple notice to the county clerk bind anybody to anything, and be considered a waiver of any right or an agreement to be bound in general? Especially when it is required that, “To be valid, waivers must be knowing, intelligent, and voluntary.” There is not even a warning in bold, capitalized, large font stating, at purchase time, that the “Taking this deed alone binds you to the CC&Rs sight unseen, without having to read, sign or agree to it.”
Background information. This case made references to the Twin Rivers free speech case of 2007, the controlling NJ Schmidt case (as did Twin Rivers), and was also based on violations of the NJ Constitution. Once again, ACLU and The Rutgers Constitutional Law Clinic, Frank Askin Director, filed an amicus curiae brief. NJ CAI filed an amicus in opposition. Both were allowed to present oral arguments on the question of waivers of constitutional rights under HOA CC&Rs. It is legal, but not binding precedent outside of NJ.
HOA Constitutional Government 