Property Law Developments—Joseph William Singer

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities when those owners wanted to post signs. See Mazdabrook Commons Homeowners’ Ass’n v. Khan, 46 A.3d 507 (N.J. 2012); Comm. for a Better Twin Rivers v. Twin Rivers Homeowners Ass’n, 929 A.2d 1060 (N.J. 2007).

The Seventh Circuit found no deceptive conduct within the meaning of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) when a condo developer substantially changed the governing documents after the condo sales. Goldberg v. 401 North Wabash Venture LLC, 2014 WL 2579939 (7th Cir. 2014). The case concerned Trump Tower in Chicago which contains hundreds of residential condominium units and hundreds of hotel condominium units as well as substantial retail space and other facilities. The purchase agreement gave TrumpOrg the “right, in its sole and absolute discretion, to modify the Condominium Documents.” Writing for the three-judge panel and applying Illinois law, Judge Posner held that this clause was sufficient to immunize TrumpOrg from any claim of deceptive conduct. Thus the hotel condo owners had no rights when TrumpOrg “greatly curtailed the owners’ rights in the hotel facilities.” Nor did the conduct violate the statute governing condominiums.