When Homeowners Associations Go Too Far: Political Responses to Unpopular Rules in Common Interest Communities

Abstract

Common Interest Communities (CICs) are an increasingly ubiquitous form of homeownership and land use control in the United States. The statutory and common law frameworks that govern CICs are characterized by deference to homeowners association (HOA) actions. While courts have generally deferred to HOA decisions, however, the political branches of government — legislatures at the federal, state, and local level — have increasingly intervened to carve out specific, discrete rights for homeowners that override the rules of CICs, creating rights to keep a pet, hang a clothesline, and fly an American flag, among others. As yet, no article has attempted to explain why legislatures have repeatedly stepped in to carve out limited exceptions to the general rule of deference to HOA decisions.

In this Article, I suggest reasons why some owner-HOA disputes trigger political intervention, even though most such disputes attract little attention outside the CIC. I argue that homeowner-HOA conflicts are most likely to attract political attention where the owner is a sympathetic litigant able to attract political empathy, and where the rule at issue is intrusive and salient rather than relating to something perceived as of minimal importance. Finally, if the homeowner’s cause aligns with an interest group and does not trigger opposition from a different interest group, the owner’s chance of triggering political change is likely to be significantly increased.

Keywords: property, land use, homeowners associations, political psychology, common interest communities, judicial review, deference, reform, legislature, salience, religion, First Amendment, law and economics, availability, zoning, empathy, real estate