Saturday, July 28, 2007

My House, My Rules. Or So One Might Think

Our Towns
The New York Times
July 29, 2007

It began with a door that had the wrong paint color.

That was in 1993, the first time Margaret and Haim Bar-Akiva ran afoul of the Twin Rivers Homeowners Association, which oversees the community of about 10,000 people where they live in East Windsor Township, N.J.

Along the way was another dispute over bars on a storm door, which, Mrs. Bar-Akiva said, led the association to spend $100,000 in legal fees. But that’s another story.

It all culminated, sort of, in a ruling on Thursday by the New Jersey Supreme Court, which went as far as any court has gone in defining the rights of the ever-growing number of people who live in private communities regulated by homeowners’ associations — even if it left an awful lot up in the air.

We may not all end up soaking up the sun like the elder Seinfelds did at Del Boca Vista, and we may not stop in Twin Rivers, a square mile of condominium duplexes, town houses, single-family homes, apartments and commercial buildings in central New Jersey. But one of the immutable long-term trends in American life seems to be that more and more of us at some point will live in the Neverland of places that are not quite public, but not entirely private either, where the rights you might expect in your own home or even at the mall are not necessarily guaranteed.

So, in New Jersey, about 1.3 million residents, nearly 40 percent of all private homeowners, live in communities where homeowners’ associations set and enforce the rules. Nationally, it’s more than 50 million people.

This, as many have come to know, can put one in an inscrutable world where maybe you can put out a yard sign for a favored candidate, distribute leaflets and knock on doors, or maybe you can’t. Maybe you can fly a flag, or maybe not. There can be restrictions on fences and paint colors, shutters and lawn art. Maybe you can drive a pickup truck or motorcycle, maybe it’s against the rules.

This is not an entirely new world, but it’s still a vexing one, where the rules are still being sorted out and where many homeowners feel the field is tilted in one direction: associations with a phalanx of lawyers, the dues of members and the lobbying clout of the powerful Community Associations Institute, a national trade group, on the one hand, individual homeowners on the other.

“Boards have all the powers of mini-governments but none of the corresponding accountability that goes with it,” Mrs. Bar-Akiva said. “They can fine you, assess taxes in the form of maintenance fees, put a lien on your house, but there’s nothing that balances those powers on the side of homeowners.”

Which is why the New Jersey case was viewed as so important. Fought over fairly small issues — an ordinance that originally allowed only one political sign in a flower bed or a window, use of the community room, access to the association’s monthly newsletter — it was followed closely nationally as the most concerted challenge to the notion that communities run by homeowners’ associations should be seen as businesses largely exempt from constitutional protections on issues like free speech.

After all, Twin Rivers feels like a town with its multimillion dollar budget, more than 20 employees, parks and swimming pools, and services that include lawn maintenance, snow removal and street lighting.

Indeed, the earth seemed to move last year when a New Jersey appeals court ruled that homeowners did not give up their constitutional rights when they moved into a privately governed community. And it held that in terms of free speech, board members were “constitutional actors,” not representatives of an exempt private enterprise.

But industry representatives said that was too sweeping and imposed quasigovernmental standards on private enterprises. The State Supreme Court largely agreed, saying that residents of the communities must accept limits on their free speech rights and that private developments, no matter how ambitious or powerful, were not the same as towns. Not that anything definitive was settled. The court threw a bone in the other direction, saying homeowners might have valid claims against “unreasonable” restrictions of their rights to free speech.

Which means, for the most part, that the issues don’t go away. They become grist for state legislatures, like a proposed national code for homeowners’ associations being considered by many states, including New Jersey. Or else they play out as narrow legal spats that have made this the hottest new area in property law litigation.

The industry representatives say people are overwhelmingly satisfied with their experiences in private communities, and, after all, they can choose where they live.

But here’s the catch. Increasingly, there isn’t an option. Many municipalities now require new developments to have homeowners’ associations. If you want to retire to many communities, there’s often no option other than ones run by homeowners’ associations.

Once rare blooms, places like Twin Rivers are becoming, if not quite the new normal, a new normal. Governments and courts are only now figuring out just what that new normal should be.



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