Keywords
Planned communities
Abstract
This Essay explores, and analyzes the long-term effects of, the turn in the 1980s towards a more communitarian-oriented analysis of planned communities. It shows that until late in the twentieth century property law commentators grounded the rule-making powers of condominiums and homeowners associations in the alleged consent of individual unit owners. The Essay argues that this approach, focused on a supposedly clear-cut dichotomy between consent and coercion, echoed arcane concepts characteristic of legal thinking in the late nineteenth century-concepts which realist thinkers had discredited long ago. Thus, abandoning this account of planned communities' power in favor of an explanation founded on the nature of these bodies as communities was a welcome development. However, this shift's impacts on court decisions were often unduly far-reaching and thus counterproductive. Over the past few decades, courts have too readily equated planned communities with stronger, and truly close-knit, communities, and accordingly deemed them worthy of great autonomy. Consequently, much more so than commentators often believe-and in complete defiance of the communitarian writers' original prescriptions-the standard of review judges apply to the decisions of planned communities has been growing ever more permissive.
Recommended Citation
Shoked, Nadav
(2020)
"The Community in the Planned Community,"
Cornell Journal of Law and Public Policy: Vol. 29:
Iss.
3, Article 9.
Available at:
https://scholarship.law.cornell.edu/cjlpp/vol29/iss3/9