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Rethinking the Renter/Owner Divide in Private Governance

65 Pages Posted: 24 Feb 2012 Last revised: 31 Aug 2012

Hannah Jacobs Wiseman

Florida State University - College of Law

Date Written: February 24, 2012

Abstract

The revered status of American home ownership 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 constraining servitudes. In focusing on the harms to property owners, these critics have unjustifiably omitted a large and growing segment of the population: renters. Nearly every American rents living space at one 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 constrain their freedom 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 association controlling 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.

Keywords: common interest communities, CICs, private governments, landlord, tenant, rental, renter, foreclose, foreclosure, eviction, servitudes, private governance, property

Suggested Citation

Wiseman, Hannah Jacobs, Rethinking the Renter/Owner Divide in Private Governance (February 24, 2012). Utah Law Review, 2012 Forthcoming; FSU College of Law, Public Law Research Paper No. 586. Available at SSRN: https://ssrn.com/abstract=2010541 or http://dx.doi.org/10.2139/ssrn.2010541

Hannah Jacobs Wiseman (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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