Document Type

Article

Publication Date

2012

Publication Title

Utah Law Review

Publication Title (Abbreviation)

Utah L. Rev.

Volume

2012

Issue

4

First Page

2067

Last Page

2126

Abstract

The revered status of American homeownership has deep and seemingly impenetrable roots. In our modern mythology/reality, the castles that shelter and nurture our pursuit of the good life are under siege. A narrative common to both popular media accounts and a burgeoning property literature warns that private homeowners’ associations hold dominion over millions of Americans, dictating what they may do with their property and foreclosing when they cannot pay association fees or fines. In response to this threat, legislatures, courts, and academics are fighting to stave off these intrusions by the content and use of constraining servitudes. In focusing on the harms to property owners, these critics have unjustifiably omitted renters—a large and growing segment of the population. Nearly every American rents living space at some stage of life, and rentals are expanding as the real estate market continues on its uncertain trajectory. Tenants have no less lofty life goals than do homeowners, yet they, too, are governed by private rules for property use that severely limit certain property uses and allow termination of their property interest through eviction or sale. The rules in rental communities, moreover, serve fundamentally the same purpose as those set by homeowners associations, which is to control neighbors’ uses to increase property value. The key difference between the two types of communities, beyond simple physical layout, lies in tradition: a woman’s home is her castle, but her apartment is her rickety tenement. Even this distinction is vanishing, however, as private communities with now-familiar “intrusive” rules continue their decades-old proliferation, objections notwithstanding. If, then, private governance of property is fundamentally problematic, it is no less problematic for renters. But if, as seems more likely, we are generally willing to accept certain private rules in communities as a reasonable response to the interests of both owners and tenants, critics of private governance must explain why traditional notions of property should prevail over a modern approach to property consumers’ demands.

Rights

© 2012 Hannah J. Wiseman

Comments

First published in Utah Law Review.

Faculty Biography

http://www.law.fsu.edu/our-faculty/profiles/hwiseman

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