Late last year, a dispute over a $75 fine for posting a political sign landed the Mazdabrook Commons Homeowners’ Association (Mazdabrook) and one of its members, Dr. Wasim Khan, in the New Jersey Supreme Court.

The long road to the Supreme Court began in 2005, when Mazdabrook fined Khan $75 after he placed a political sign promoting his own candidacy for Parsippany town council in his front window. Mazdabrook relied on a homeowner’s association rule prohibiting all signs except one “for sale” sign, and on a restrictive covenant that prohibited unit owners from displaying any signs without the prior written permission of Mazdabrook’s board of trustees. The trial court dismissed Khan’s claim that the rule infringed upon his rights under the New Jersey Constitution. The Appellate Division reversed, and Mazdabrook appealed as of right to the Supreme Court. All three courts determined that the dispute was governed by Committee for a Better Twin Rivers v. Twin Rivers Community Association, 192 N.J. 344 (2007), the most recent major Supreme Court case addressing free speech rights in developments governed by community associations.

In Twin Rivers, the homeowners’ association limited residents to placing one sign in their residence window and one in the flower bed in front of their residence. The rule prohibited signs posted farther than three feet in front of the unit and on utility poles. The rule did not regulate the time or manner in which the signs could be placed. The court analyzed the rule’s constitutionality by applying a three-prong test, the Schmid analysis, which directs courts to weigh: (1) the nature, purposes and primary uses of the property; (2) the extent and nature of the public’s invitation to use the property; and (3) the purpose of the expressional activity in relation to the public and private use of the property.

In Twin Rivers, the court resolved all three factors in favor of the homeowners’ association, thereby upholding the constitutionality of the rule. In Mazdabrook, however, the court found that while the first factor must be resolved in favor of the association, the second factor depends on who is conducting the analysis. From the homeowner’s perspective the property in question is his own residence, but from the association’s perspective the property is one residence among many that the association governs. Consequently, the court turned to the third factor to determine the rule’s constitutionality, and found that Khan’s robust right to political free speech could not justify Mazdabrook’s total ban on political signs given its relatively minor interests in maintaining the ban.

The court also rejected Mazdabrook’s argument that Khan had waived his right to post signs by agreeing to a “declaration of covenants and restrictions” that contained a blanket prohibition on posting signs without obtaining prior board approval. The court went further and questioned whether fundamental rights, such as free speech, can be knowingly and intelligently waived “in the midst of a more than fifty-page single spaced document.” This holding was groundbreaking.

Most cases concerning the waiver of rights relate to criminal law. There are very limited civil contexts in which waiver is not possible, but after Mazdabrook, free speech rights — at least in certain contexts — are among them. Moreover, the court warned that a “proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution.” This suggests that boilerplate restrictions on free speech in declarations of covenants and restrictions will be disfavored. Ultimately, the court held that covenants purporting to regulate speech on a resident’s own property will also be subject to reasonable time, place and manner restrictions. The fact that a resident agreed to a covenant, versus having a rule promulgated by a homeowner’s association, would not change this analysis.

Mazdabrook established a minimum in free speech rights that must be accorded to residents who are governed by homeowners’ associations. A blanket prohibition on all signs is draconian. Twin Rivers established that one sign in a window and one sign in a flower bed constitutes a reasonable place restriction. Between Mazdabrook and Twin Rivers, what constitutes a reasonable “place” restriction has been largely determined. At a minimum, community associations must permit members to place a sign in their window. The most stringent regulation a community association can adopt, while still definitively remaining within the bounds of the New Jersey Constitution, permits at least one window sign and one sign within three feet of the residence. Some “place” issues remain, such as whether a member must be allowed more than one window sign. In the Mazdabrook development, members also own and are responsible for maintaining a foot or two in front of their units. Theoretically, such property should be subject to the same analysis as the window signs in Mazdabrook, as they are unequivocally the unit owner’s property. However, it is conceivable that a court might find that the right to place signs in windows is a sufficient alternative to placing signs in front of the residence and would thus uphold a regulation prohibiting signs in front of the home.

Moreover, because Khan’s ownership of the window played a critical role in the court’s decision, it is unclear whether the analysis would change if the window were designated a limited common element. In Mazdabrook, the court held that the second prong of the Schmid test could be resolved either way depending on who is analyzing the regulation. In that event, the third prong becomes decisive. However, the second prong is only ambiguous if the property is owned by the resident. In many developments with community associations, windows, flower beds and terraces are not owned exclusively by the residents. Some deeds designate these places as limited common elements. In that case, the actual ownership of the property in question is not limited to the person who owns the unit in which the window is located, but extends to other members of the community association. This increases the likelihood of the second prong being resolved in favor of the community association.

In addition to the place restrictions contemplated by Twin Rivers and Mazdabrook, the court has yet to address what constitutes reasonable time and manner restrictions. Time restrictions enacted by municipalities have been severely disfavored by the United States Supreme Court, and the American Civil Liberties Union has successfully petitioned several New Jersey towns to repeal ordinances restricting the time in which political signs may be displayed. Consequently, even though community associations would likely be given more leeway than municipalities in enacting time restrictions, there is very little guidance for community associations as to what constitutes a reasonable time restriction on signs. There is slightly more guidance, especially from municipalities, regarding manner restrictions, such as those regulating the size and colors of signs, in the commercial context. This guidance, however, does not extend to signs involving more protected speech, such as political speech.

These open questions regarding time, place and manner restrictions leave both community associations that are drafting regulations and unit owners weighing whether they should “risk” expressional activity with little instruction from the courts. While the Mazdabrook decision established the bare minimum that community associations must tolerate from members seeking to express themselves through political signs, it created more questions than it answered. Unfortunately, Mazdabrook provided little guidance for community associations seeking to maintain aesthetic uniformity in their communities while not infringing upon the free speech rights of its members. To avoid litigation over nominal fines, community associations seeking to limit members’ expressional activity would be well advised to adopt the established constitutional rule from Twin Rivers, which permitted one sign in the window and one in the flower bed with no time or manner restrictions. •