Article · Real Estate
Government by Covenant: How Homeowners Associations Get Their Power and Where It Ends
42 U.S.C. § 3604
- Type
- Article
- Jurisdiction
- National
- Date
- 2024-05-26
- Topic
- Real Estate
More than a quarter of Americans now live in a community governed by a private association with the power to regulate the color of their front door, levy mandatory charges, fine them, and in many states foreclose on their home. This article explains where that power comes from, which is not what most residents assume: not from government, and not from a contract anyone negotiated, but from a recorded declaration that ran with the land before they arrived. It traces the legal architecture — declaration, bylaws, rules, and the statutory overlay of the common-interest community acts — and the deference standards courts apply, from the presumptive validity of recorded restrictions in Nahrstedt to the business-judgment review of board decisions in Levandusky. It then maps the limits: state statutes protecting flags, solar devices, satellite dishes, political signs, and religious displays; fair housing accommodation obligations; procedural due process requirements for fines; and the selective-enforcement and waiver defenses that defeat many enforcement actions. The final sections cover assessments and the lien-and-foreclosure power that makes associations genuinely dangerous, reserve funding and special assessments, developer transition, and the practical question of how an owner actually changes a rule they dislike.
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