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

43 Real Estate L.J. 453 (2015)

56 Pages Posted: 18 Dec 2014 Last revised: 25 Dec 2018

Date Written: August 12, 2014


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

Suggested Citation

McCarl, Ryan, When Homeowners Associations Go Too Far: Political Responses to Unpopular Rules in Common Interest Communities (August 12, 2014). 43 Real Estate L.J. 453 (2015), Available at SSRN: https://ssrn.com/abstract=2539179

Ryan McCarl (Contact Author)

Rushing McCarl LLP ( email )

2219 Main St. No. 144
Santa Monica, CA 90405
United States
310-896-5082 (Phone)

HOME PAGE: http://rushingmccarl.com

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics