When you live in a community association, you must abide by the rules that have  been set. After all, condominiums are like little municipal governments; they  collect fees, maintain the commonly-owned properties and set and enforce rules.  But what if those rules conflict with state or federal laws, such as the  Americans with Disabilities Act, or the right to freedom of speech?  

 In recent years, there have been numerous accounts about heavy-handed  associations trying to regulate questionable areas, and the resulting conflicts  between boards and unit owners.  

 For example, in 2008 Lindsay Major Ringgold wanted to fly a flag in honor of her  husband who was serving in Iraq. Her association in Baltimore, Maryland asked  her to take the flag down, although there were no complaints about the flag  from the other residents. The association later said that their concern was for  the structural integrity of the building, as the flag had been mounted on  support beams. In court, Ringgold cited her federal right to fly an American  flag. Later, Ringgold modified the flagpole’s mount by installing brackets that had been approved by an engineer. She is now  in compliance with her condo’s rules. (Most disputes over flags involve the placement of the pole or size of  the flag, not the act of flying the flag itself.) New Jersey law now allows  flags to be flown but associations have discretion as to the size and placement  of the apparatus.  

 In Johnston City, Tennessee, Sheng Tchou, who was persecuted in China for his  religious beliefs, excitedly hung multi-colored lights outside his condominium  at Christmastime. Tchou was informed by the association that only white lights  were acceptable and he needed to take the colored lights down or replace them.  Tchou felt this decision violated his freedom to express his religious beliefs.    

 Most Residents Support Rules

 Of course, associations must make certain that their residents abide by the  rules. Most residents want it that way, too. In a 2007 Zogby International  survey, 74 percent of residents surveyed said they believe that the rules of  their association serve to protect and enhance their community. But when does  asserting association authority cross the line into violating others’ rights?  

 According to an article in Common Ground, a magazine published by the Community Associations Institute (CAI), “The debate has moved far beyond committee discussions about holiday decoration  rules to community-wide protests over acceptable levels of cultural diversity  and religious tolerance. In some areas, the increased diversity has extended  what used to be a seasonal issue into a debate over the year-round display of  religious symbols.”  

 “Lots of condo boards forget that their authority is limited by applicable state  statutes. And those statutes are limited by the state Constitution and even the  United States Constitution. So rules which conflict with the law are by definition unenforceable,” says RJon Robins, a Miami attorney and author of numerous legal guide books.  

 A common situation arises, according to Robins, when condo association boards  seek to maintain the appearance of the property, “but in doing so, they inadvertently create rules that violate the First  Amendment of the United States Constitution [free speech],” he says. “Rules prohibiting distribution of leaflets, newsletters even if they contain  advertisements, display of flags and religious symbols, etc., should be  reviewed by the association’s attorney to be sure the board doesn’t inadvertently bylaw itself into litigation.”  

 Last year, in Medford, New York, one condo complex repealed a rule that banned  religious statues from common areas after one of the residents complained to  the state’s Division of Human Rights. The resident, Peter Kelly, wanted to display a small  statue of the Virgin Mary outside his home, but was threatened with a fine.  

 In 2008, Congress considered the Freedom of Religious Expression in the Home  Act, which would have guaranteed the right of residents to post religious  symbols, such as mezuzahs, on their apartment doors. This was after Shoreline  Towers Condominium in Chicago had repeatedly removed a mezuzah from the  doorpost of a Jewish resident, who promptly replaced the symbol each time it  was taken down. Ultimately, the case was heard before the Seventh U.S. Circuit  Court of Appeals, which ruled that federal Fair Housing Act’s protections didn’t extend to religious symbols.  

 The Freedom of Religion Act was referred to the House Committee on the Judiciary  in 2008 and died there, not making it to the floor of the U.S. House of  Representatives.  

 Freedom of speech issues did arise in the landmark Twin Rivers’ lawsuit involving a group of homeowners in East Windsor, who in 2000 challenged  their HOA board, which had prevented them from placing political signs, using  the community room, and seeking financial documentation and voting lists.  

 “Frequently these tensions manifest in first amendment/private property  struggles,” says Jennifer A. Loheac, an associate attorney in the real estate department of  the Woodbridge-based law firm of Greenbaum Rowe Smith & Davis LLP. “The seminal 2007 New Jersey Supreme Court case of Twin Rivers ruled in favor of  associations’ right to govern private property free of governmental interference.” However, she notes, the court also warned that any community’s “restrictions on the exercise of free speech must be reasonable as to time, place  and manner.” This means, Loheac explains, that communities are authorized to manage  residents’ expressions, for example, by limiting signage to certain size and placement or  by coordinating a community bulletin board where there is ban on soliciting  door-to-door. However, where a community attempts to altogether shut down  residents’ individual expression, that association will make itself vulnerable to  constitutional challenge.  

 “Concerning religious expression,” adds Loheac, “an association may also manage religious decor with the same reasonable policies  of time, place and manner restriction. The more important issue in the context of religious sensibility is that the  association’s policies are tolerant and open to a variety of different religious expression.  Even when it comes to holiday decorations for the community, boards have to be  sensitive that installing a Christmas tree at the clubhouse is going to draw  criticism where there is also no Menorah or Kwanzaa symbols present. Community  decorations should either be neutral to celebrate the winter season or  representative of many different faiths.”  

 Loud Music Can Be Regulated

 By and large, the most common complaints dealt with by HOA boards and homeowners  deal with music and pets. Some boards, in fact, have passed rules banning  animals altogether or dogs over a certain weight.  

 But, says A. Christopher Florio, a shareholder attorney with the  Lawrenceville-based law firm of Stark & Stark, banning loud music or pets can be difficult. “Those are tough ones,” says Florio. “We do have a lot of clients that do want to put together a resolution of some  sort that deals with some what we’re going to call a nuisance because that’s what comes under ‘nuisance.’ The problem you have though is what you look at as a nuisance and what I look  at as a nuisance may be two different things. Loud music may not be a problem  for me; it may be a problem for you. So unless there is some parameter and you’re using like a decibel meter to figure out the level of decibels—those are tough ones to implement. The problem is it’s extremely subjective and when we’re dealing with association it’s normally an issue that’s brought up by a neighbor against a neighbor.”  

 And in New Jersey, it’s the law that some form of alternative dispute resolution be tried before  seeking relief in the courtroom. The number one issue, says Florio, in using  ADR is that both combattants must be amenable to a solution and willing to come  to some sort of a compromise. The problem is that often it’s subjective and the mediator is not aware of the past history between the  warring residents.  

 Boards also must be consistent in their actions, says Florio. “Again, my overall opinion is that you never make a rule that you’re not going to enforce. These are sometimes ones that fall under that  definition.” The problem arises when there is inconsistency, he says. “The best example that I can think of is when a governing document explicitly  says what an individual can’t or can do and a board decides, let’s say, by resolution it can’t. For example, if the governing documents say that you can have a dog up to 20  pounds. And all of a sudden the board decides on its own that it’s going to not allow them on its own, then that’s going to be a problem.”  

 There are other areas where associations can shoot themselves in the foot with  their own rules. Jarett Warner, an attorney with Havkins Rosenfeld Ritzert & Varriale, LLP in Mineola, New York, noted a Nassau County Supreme Court  decision where the court held that the condominium board could not fine a  homeowner for having a garage sale. The board had claimed the sales were a  nuisance under their own bylaws.  

 “The court held that although under the business judgment rule the board could  have adopted rules prohibiting garage sales if it had a valid reason for doing  so, (but because) the bylaws only prohibited nuisances,” he says, “the court found there was no basis to conclude that the garage sale was a  nuisance.”  

 Changing of the Rules

 Although the board enforces the rules, unit owners have the right to fight a  rule that they feel is inappropriate. For example, boards would have trouble  creating a rule denying the right of children under, say, four years old, to  use the pool because that would be seen as discriminatory.  

 “It may be appropriate for the board to create a rule requiring tennis shoes on  the tennis courts because wrong shoes on the courts can damage the surface of  the tennis courts,” continues Loheac. “However, it would be inappropriate for the board to require every resident to  wear tennis whites when using the court because this has nothing to do with the  facilitation of the property. Yet, all too often, these subtleties are precisely where boards make serious  mistakes that offend homeowners’ individual freedoms.”  

 The board must be careful with the rules they draft, says J. David Ramsey, an  attorney partner in the real estate department and chair of the community  association practice group at Woodbridge-based Greenbaum Rowe Smith & Davis LLP. “Whenever an association is seeking to create rules that deal with conduct inside  someone’s home, it must first look to its governing documents for authority to control  that conduct. Courts tend to be more protective of activities that occur inside  a residence and, therefore, more suspect of rules created to control that  behavior,” says Ramsey. “However, most master deeds have prohibitions on activities that are or may  become a nuisance or annoyance to other owners.”  

 To avoid any potential conflict, unit owners should be made aware whenever new  rules are drafted. “It often serves the board well to draw the community into discussion concerning  a new rule,” says Ramsey. “Boards should consider preparing a draft resolution on the subject, then  distribute it to the owners and schedule a meeting at which anyone who would  like to provide input may do so before he board holds a meeting at which the  new rule is to be voted on.”

 Lisa Ianucci is a freelance writer and a frequent contributor to The New Jersey Cooperator.