Constitutional Legislation Prof Weblog

Monday, November 14, 2022

Check it Out: Stahl’s The Power of State Legislatures to Invalidate Private Deed Restrictions

Kenneth Stahl (Chapman), The Power of State Legislatures to Invalidate Private Deed Restrictions: Is it an Unconstitutional Taking?, Pepperdine L. Rev. (forthcoming):

Over the previous a number of years state legislatures confronting a extreme housing scarcity have more and more preempted native land use rules that limit housing provide in an effort to facilitate extra housing manufacturing. However even the place state legislatures have been profitable, they now confront one other drawback: most of the preempted land use rules are duplicated on the neighborhood or block stage by means of non-public “covenants, situations and restrictions” (CCRs) enforced by householders associations. In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. Whereas many states have barred HOAs from prohibiting pets, clotheslines, indicators and flags, California has moved a lot farther, prohibiting HOAs from unreasonably limiting accent dwelling models and overriding any non-public CCR that will inhibit the development of 100% inexpensive housing of any density.

These overrides current critical authorized questions as a result of CCRs are property and contract rights that could be protected by the Structure’s Takings and Contract clauses. Overrides haven’t resulted in a lot printed litigation previously, however California’s new wave of aggressive CCR overrides might change that. Whereas the Contract Clause argument is exceptionally weak, householders who’re disabled from imposing a servitude benefitting their property as a consequence of a legislative override have a viable argument that the override interferes with their affordable expectations relating to using their property, and subsequently constitutes an unconstitutional taking. On steadiness, nonetheless, I argue that almost all CCR overrides will survive a takings problem as a result of the enforceability of CCRs has lengthy been topic to alteration and even termination by courts or legislatures on public coverage grounds, so a home-owner would moderately anticipate a CCR to be unenforceable if it conflicts with public coverage as decided by the legislature. Nonetheless, the present Supreme Courtroom has been very aggressive in current takings instances so legislatures must watch out in crafting overrides to make sure they fulfill the Courtroom’s more and more stringent takings requirements.

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