Making Common Interest Communities Work: The Next Step

Abstract

A large and growing portion of the housing stock of America is located in common interest communities governed by owner associations. As they have become more prevalent, the legal challenges they present have become more apparent. These challenges begin with ascertaining the legal nature of common interest community associations, which occupy a space that lies somewhere between public governments, on the one hand, and private businesses or private associations on the other. After listing some of the respects in which community associations are like and unlike these well-established legal entities, I conclude that they are different in important respects. Because of these differences, a new body of law - community association law - is developing. After discussing the protections afforded association members against illegal or abusive board conduct, I conclude that more needs to be done because the existing framework requires resort to the courts, which is costly, divisive, and risky due to the loser-pays attorney fees provision found in most CC&Rs.

I conclude that states should provide administrative support for community association governance with education, dispute resolution, and enforcement services. Common interest communities have become too important to leave to their own resources and the judicial system. There is much that states can do and there are several models of successful programs. They should take the next step.

Keywords: common interest communities, home owner associations