Limiting the Collective Right to Exclude

47 Pages Posted: 25 May 2017 Last revised: 12 Mar 2018

See all articles by Andrea J. Boyack

Andrea J. Boyack

Washburn University - School of Law

Date Written: May 24, 2017

Abstract

For decades, society’s disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society’s housing woes may indeed be intractable if we continue to treat a group’s right to exclude with the level of deference that such exclusionary efforts currently enjoy, this treatment is unjustifiable. Courts should acknowledge and consider the broad public and private costs that are created by a group’s unfettered right to exclude. A more balanced approach would weigh individual autonomy to control property and various public harms resulting from community exclusions against legitimate community needs to exclude certain residents and uses. Judicial limits of the collective right to exclude may enable real progress toward fair and affordable housing to be achieved at last.

Suggested Citation

Boyack, Andrea J., Limiting the Collective Right to Exclude (May 24, 2017). Fordham Urban Law Journal, Vol. 44, 2017. Available at SSRN: https://ssrn.com/abstract=2973417

Andrea J. Boyack (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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