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Research Papers regarding condominium and homeowner associations, community associations, common interest communities, planned communities, etc.

 

The Philosopher and the Developer: Pluralist Moral Theory and the Law of Condominium

This paper analyzes the evolving law of condominium from the perspective of the moral philosophy of property, focusing in particular on neo-Aristotelian value or pluralist ethics. By combining aspects of traditional property law, corporate law, and municipal politics, condominium provides a flexible tool forownership and private land use planning. Condominium, however, also poses novel and unique challenges toboth legal doctrine and the very meaning of private property. After describing and comparing the pluralist approach to moral philosophy of property and the approach of its main rivals—deontology and utilitarianism—the paper describes how condominium is understood by each approach and analyzes in detail current legislation and court decisions regarding condominium in light of these approaches.The paper concludes that courts and legislatures have been alternating between deontological approaches and pluralist approaches to condominium, with a general trend in recent developments away from the deontological approaches and towards pluralist approaches. The thesis tentatively suggests that on the whole,pluralist approaches lead to more just and equitable results in condominium, and suggests further avenues for study.

Read the article………….

History of Federal Involvement in Community Associations for 2016

Community associations are a significant part of U.S. Housing, see the Community Association Fact Book 2016.  Despite their apparent newness, community associations –condominiums, cooperatives and planned communities –have a long history in the U.S. Some of that history is covered in the aforementioned Fact Book 2016.  The actual development of associations whether by enabling statute or conventional real estate transaction –this occurs at the state level. This Part Three, however, presents additional association history by including dates and information about significant publications and events as well as important organizations involved in the development of U.S. real estate including associations. The cites and dates below therefore are meant to provide a general context in which associations have been developed with the primary focus on federal involvement.       Read the publication (PDF)…………

 

How Today’s Urban Planning Can Divide a City and Disenfranchise Voters: The Case of Alexandria, Virginia

This is an analysis of the unforeseen consequences of the City of Alexandria, Virginia privatizing many services that it has traditionally provided to its homeowners. Alexandria was first settled in the mid-1700s and over the years has been home to the likes of George Washington, Robert E. Lee, Richard Nixon, Gerald Ford, and Jim Morrison, lead singer of The Doors. Today, after three major annexations of land in 1915, 1930, and 1952, Alexandria now occupies 15.6 square miles directly across the Potomac River from the District of Columbia and is home to an estimated 142,000 people, making it one of the more densely populated cities in the United States.1 On a functional basis, however, Alexandria today is two separate “cities” of relatively equal physical size and population that differ markedly in community structure and political influence. In one of these “cities,” the average homeowner pays their taxes and receives all their services from City Hall. In the other “city,” the average homeowner pays their taxes, but receives only some of their services from City Hall.    Read the article………….

Common Interest Community Covenants and the Freedom of Contract Myth

Courts take a hands-off approach with respect to the content of common interest community (CIC) covenants, reasoning that freedom of contract mandates their enforcement. But CIC covenants differ from voluntary private contracts in important ways, making deferential enforcement in the name of contract policy unwarranted. Covenants that run with the land are specifically enforceable and bind subsequent owners of the property, potentially in perpetuity. Furthermore, CIC covenants are contracts of adhesion, made up of completely non-negotiable, recorded terms bundled into home acquisition. Developers and lenders generally prescribe the content of such covenants, and they may not reflect community desires or values. Contract analogy should not create presumptive validity for all CIC covenants and properly enacted rules. The reality of CIC governance is more complicated and implicates property and constitutional concerns as well as contract law. The proper approach to CIC governance review must draw from all three of these areas of the law. The subject matter scope of CIC governance should be limited based on servitude law principles. Constitutional protections should be legislated for members of CICs. And bona fide, deliberate assent should be prerequisite to holding owners bound to CIC obligations.    Read Paper


The Six-month “Limited Priority Lien” For Association Fees Under the Uniform Common Interest Ownership Act

In the modern common interest community (the most common forms of which are the condominium, the planned community, and the cooperative), each unit/parcel is subject to an assessment for its proportionate share of the common expenses needed to operate the owners’ association (the “association”) and to maintain, repair, replace, and insure the community’s common elements and amenities. Assessments constitute the primary source of revenue for the community, and the ability to collect assessments is crucial to the association’s ability to provide the maintenance and services expected by community residents. If some owners do not pay their proportionate share of common expenses, the association will be forced to shift the burden of delinquent assessments to the remaining unit owners through increased assessments or reduced services and maintenance, potentially threatening property values within the community.   Read PDF

 

ULI Case Study: A Master-Planned Community with a Working Farm

Willowsford is a 4,125-acre (1,669 ha) master-planned community that includes a range of luxury single-family housing and a wealth of amenities, including a working farm that grows more than 200 varieties of produce for residents. The project is located in Loudoun County, Virginia, a fast-growing outer suburb of Washington, D.C. Willowsford consists of four noncontiguous villages linked thematically and with shared amenities. A total of 2,195 homes are planned.   Read more………     Read study………

 

Pet Policy and Housing Prices: Evidence from the Condominium Market

This paper examines the economic impact of restrictions against keeping domestic pets in residential dwellings. Using a large data sample of condominium sales, we empirically estimate price effects associated with pet restrictions. Our results suggest that an unrestricted pet policy creates a significant premium in condominium price, along with discounts for condominiums that do not allow pets or have pet restrictions. This finding is useful for policy makers, developers of new condominium projects, and condominium owner associations in their decisions to establish or alter laws and regulations regarding restrictions on pet owner residents.    Read more………PDF

 

Economic Necessity of Lien Priorities of First Mortgages

(New York Law Journal, 1994) As good an explanation as any as to why mortgage liens have priority over association or other liens.   Read More……PDF

The Law of Yards

Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner’s freedom of expression. Property owners’ expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner’s conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner’s decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner’s protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.   Read More……PDF

 

Public Communities, Private Rules

As the American population grows, communities are seeking creative property tools to control individual land uses and create defined community aesthetics, or distinctive “built environments.” In the past, private covenants were the primary mechanism to address this sort of need. Public communities, however, have begun to implement covenant-type “private” rules through zoning overlays, which place unusually detailed restrictions on individual property uses and, in so doing, have created new forms of “rule-bound” communities. This Article will argue that all types of rule-bound communities are uniquely important because they respond to resident consumers’ heightened demand for a community aesthetic. It will also highlight their problems, however.  Read More……

 

The Benefits of Alternative Dispute Resolution in Common Interest Development Disputes

Feuding with one’s neighbor is an American tradition. Robert Frost aptly expressed this sentiment in his famous line, “Good fences make good neighbours.”  People take their living situation seriously, and they become irritated when their neighbors interfere with their rights or invade their privacy. Small disputes can often fester into hatred and strife. Moreover, once the relationship between neighbors has soured, it can be difficult or impossible to repair. These problems worsen when neighbors live close to one another. In common interest developments, such as condominiums (“condos”) and cooperatives (“co-ops”), neighbors share walls, elevators, lawns, and common areas. These close quarters make the potential for discord between neighbors more likely among them than among owners of single family homes who do not share these common areas.  Read More……PDF

 

Community Associations at Middle Age: A New Bankruptcy Law and Other Proposals (Robert Nelson, 2010)

As community associations move into middle age, however, new issues are demanding attention. Developers (in the writing of the founding documents) and policy makers now need to address more fully the question of the appropriate lifetime of a community association and how the middle and, potentially ending, stages might be handled. Should some failing community associations now go out of business altogether? How might this be accomplished? Should other community associations with major operating problems be reorganized? And, again, what is the best mechanism for accomplishing this? Read More……

The Rise of Sublocal Governance (Robert H. Nelson, 2009)

It would have been difficult to imagine as recently as 2007 that the workings of local housing markets would hold the key to the macroeconomic future of the nation. Yet, as we learned in 2008, problems with subprime mortgages, and in U.S. housing markets more generally, precipitated a major economic crisis with implications not only for the United States but all the world. The previous lack of scholarly interest in housing markets reflects a wider lack of interest in local government, land markets, and other local affairs. It is, arguably, America‘s most important, least-studied area of major public policy concern.  Read More……

 

Common Interest Communities: Evolution and Reinvention (Wayne S. Hyatt, 2008)

As the community association evolves, it confronts the challenges of “privatopia” and privatization.  The first concept is a perjorative term and is applied to community associations in support of the argument that they have become private utopias of privilege and exclusive restrictiveness.  In other words, community associations are alleged to be anti-community.  There are and have been justifications for that argument.  Privatization reflects a growing trend: local government imposing responsibility for public services and facilities upon the private sector.  Taken together, privatopia and privatization help frame the need for evolution and reinvention.  Read More……

Common Interest Communities: Standards of Review and Review of Standards (Paula Franzese, 2000)

This article addresses the propriety of common interest community (CIC) restrictions and governing board decisions rendered with increased frequency in this golden age of “privatization.”6 What are the standards to be applied by these private governing bodies? What is the appropriate standard of judicial review of their rules and determinations? The stakes are high, mindful that the last half of the twentieth century saw the proliferation of common interest communities in unprecedented numbers.  Read More……

 

Preparing Community Associations for the Twenty-First Century: Anticipating the Legal Problems and Possible Solutions  (Patrick J. Rohan, 1999)

This Symposium affords me the unique opportunity to step back from day-to-day involvement and to draw attention to some areas of the law that are in need of correction or clarification if private community associations are to prosper and be free of hidden pitfalls. Among the major conclusions set forth herein are the following:  Read More……

 

Privatizing the Neighborhood: A Proposal to Replace Zoning With Private Collective Property Rights to Existing Neighborhoods (Robert H. Nelson, 1999)

Two researchers recently announced a “quiet revolution in the structure of community organization, local government, land-use control, and neighbor relations” in the United States.  They were referring to the spread of homeowners’ associations, condominium ownership of property.  In describing these forms of ownership, different commentators have used terms such as “residential community association”, “common interest community”, “residential private government”, “gated community” and others.  Read More……

 

The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama  (Steven Siegel, 1998)

This Article considers the application of the Supreme Court’s state-action theory to residential commmunity associations (RCAs), a form of housing and community governance that has experienced extraordinary growth in recent years. Fewer than 500 RCAs were in existence in the United States before 1960. In the early 1990s, it was estimated that 32 million Americans lived in 150,000 RCAs. A continuing boom in RCA construction has led to predictions that twenty-five to thirty percent of Americans will be living in RCAs by early in the next century. Steven Siegel argues that this trend, although largely unnoticed, carries significant implications for the structure of our government, the delivery of traditional public services, and the availability of constitutional protections.  Read More……

 

Private Communities or Public Governments: “The State Will Make the Call” (Harvey Rishikov, 1996)

One of the most prominent issues in economic as well as political and legal discussion today is “privatization,” a term used generally to describe efforts to transform traditional governmental functions into privately owned and operated businesses. 3 While this debate has taken place under increasing scrutiny, another type of privatization, one occurring within the nation’s residential communities, has been less studied. This has transpired even though it has been causing dramatic changes in our society for nearly thirty years. This transformation has helped to modify the character of our communities, alter the dynamics of our political system, and challenge legal constitutional analyses at both the federal and state levels.  Read More……

 

Residential Community Associations: Private Governments in the Intergovernmental System? (1989)

This policy report is one in a series of publications from a Commission project on “Rethinking Local Self-Government in a Federal System.” Already published are The Organization of Local Public Economies (1987), and Metropolitan Organization: The St. Louis Case (1988). A report on Allegheny County, Pennsylvania, will be published in the near future. Traditionally, the intergovernmental system has been thought to include the national government, state governments, and local governments of all kinds. This report suggests that the concept of intergovernmental relations should be adapted to contemporary developments so as to take account of territorial community associations that display many, if not all, of the characteristics of traditional local government.  Read More……

 

Myth-Busting: The “Roman Condominium” Myth (1987)

In the 1960s, ‘70s, and ‘80s, legal writers were uncritically repeating the story that the ancient Romans invented condominiums, or at least used them widely. This story made no sense at all: Ancient writers don’t mention condominiums, and Roman law actually prohibited schemes whereby one person owned airspace above another person. (The word “condominium,” meaning “co-ownership,” is Latin, but it is of relatively modern, not Roman, coinage.)  Read more…   Full Article Read More……PDF

Surveys

Homeowner Satisfaction Survey

For the sixth time in 11 years, Americans living in homeowners associations and condominiums have told pollsters they are overwhelmingly satisfied in their communities. The March 2016 survey affirms the findings of almost identical national surveys conducted in 2005, 2007, 2009, 2012 and 2014. The 2016 survey was conducted by Zogby Analytics for the Foundation for Community Association Research. The findings from the six surveys are strikingly consistent and rarely vary a standard margin error for national, demographically representative surveys.

  • By large majorities, most residents rate their overall community experience as positive or, at worst, neutral.
  • They say their association board members serve the best interests of their communities.
  • They say their community managers provide valuable support to residents and their associations.
  • They support community association rules because they protect and enhance property values.

The findings objectively refute the unfounded and unsubstantiated myth that the community association model of governance is failing to serve the best interests of Americans who choose to live in common-interest communities.

View past homeowner surveys.