In buying into a condominium community and its lifestyle, the prospective owner signs a contract, agreeing to accept and uphold the community’s rules and regulations—and essentially waiving certain rights.
In doing so, this buyer may feel that he or she is entering an exclusive world that can dictate—by contractual consent—a particular [and desirable] living environment. In much the way a country club or even a neighborhood social club is considered private, and its members free to include or exclude whomever they want, a condominium community is also a private enclave—or is it?
Residential community unit owners enter into contracts that are private agreements, made strictly between consenting parties, but legal experts will point out that “housing” is the main difference between condominium associations and other, private organizations or clubs. As such, the federal or state Fair Housing Act and related statutes regarding discrimination are routinely applied, and can override regulations in condo docs.
For instance, the freedom of speech guaranteed in the U.S. Constitution does not apply in many condominium communities. This is because while the constitution prohibits government at all levels—local, state and federal—from impinging on the First Amendment rights of citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.
But a court may decide otherwise. In a recent case, a condo board banned a unit owner from placing a political sign inside his window. The owner brought suit, and the state Supreme Court in New Jersey agreed with the plaintiff, concluding that his right to free speech—specifically, political free speech—trumped the property rights of the community association.