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The Mentally Retarded and Private Restrictive Covenants

42 Pages Posted: 22 May 2010  

Thomas F. Guernsey

Thomas Jefferson School of Law; Albany Law School

Date Written: 1984


The Article provides an analytical framework for a court’s analysis of covenants restricting group homes. It examines the ordinary rules of statutory interpretation to show that they allow private individuals to exclude group homes. It then discusses whether a state, in its exercise of eminent domain, must compensate surrounding landowners when the state takes property subject to a private restrictive covenant in order to establish a group home. The Article then discusses the constitutionality of restrictive covenants, the circumstances under which public policy may prevent enforcement of restrictive covenants, and whether states may enact statutes to limit the scope of restrictive covenants.

The judicial trend has been to allow the establishment of group homes in residential neighborhoods and in single-family residences. However, the courts have often failed to delineate the legal basis for allowing this action. A well drafted restrictive covenant may give a court no choice but to compensate the property owner for abrogation of the covenant

Suggested Citation

Guernsey, Thomas F., The Mentally Retarded and Private Restrictive Covenants (1984). William & Mary Law Review, Vol. 25, p. 421, 1984. Available at SSRN:

Thomas F. Guernsey (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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