Privatization and its discontents: Common interest communities and the rise of government for "the nice"

Urban Lawyer

Volumn 37, Issue 3, 2005, Pages 335-357

  Franzese, Paula A ^b   Rodino, Peter W ^a  

^a SETON HALL UNIVERSITY   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

GOVERNANCE APPROACH; PLANNING LEGISLATION; PLANNING PRACTICE; SOCIAL CAPITAL;

EID: 27744540829     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (212)

1. Restatement (Third) of Property: Servitudes § 6.2 (2000). The Restatement defines "common interest community" as a "development or neighborhood in which individually owned lots or units are burdened by a servitude" that cannot be avoided by nonuse or withdrawal. These burdens include payment for the use or maintenance of property held in common or fees for services or facilities to either commonly held property or individually owned property.
2. Cmty. Ass'ns Inst., Data on U.S. Associations, at http:// www.caionline.org/about/facts.cfm (estimating that more than 80% of new housing starts during the past five years have been built as part of an association-governed community) (last visited May 9, 2005).
3. Id.
4. Wayne S. Hyatt, Condominium and Homeowner Association Practice: Community Association Law 14 (2d ed. 1988) (explaining that condominiums, a twentieth century phenomenon, are organized so that residents own their respective units in fee simple and own common areas as tenants in common).
5. Patrick H. Rohan & Melvin A. Reskin, Cooperative Housing Law and Pracrice § § 9.01, 9.02 (2001) (explaining that cooperative vests title in corporate structure, with each resident owning stock in the corporation).
6. See generally Edward J. Blakely & Mary Gail Synder, Fortess America: Gated Communities in the United States (1997) (discussing America's gated communities and their residents);
7. Robert Fishman, Bourgeois Utopias: The Rise and Fall of Suburbia (1987) (tracing the origins of particular suburban areas).
8. Jerry Mashaw, Panel Discussion: Living with Privatization: At Work and in the Community, 28 Fordham Urb. L.J. 1397, 1398 (2001) (describing privatization as the "private contractual arrangement for the provision of formerly publicly-provided services").
9. Restatement (Third) of Property: Servitudes § 6.7 (2002) (noting that common interest community groups have implied power to adopt reasonable rules);
10. see also Rohan & Reskin, supra note 5, at 4 ("Covenants now represent the backbone of community association arrangements of all types and should be recognized to be as necessary and beneficial as zoning or other measures passed by local governments."). The Restatement explicitly incorporates into its definition of the common interest community the premise that individual units in the given development are burdened by servitudes.
11. Harvey Rishikof & Alexander Wohl, Private Communities or Public Governments: The State Will Make the Call, 30 Val. U. L. Rev. 509, 519 (1996).
12. Stephan Glassman & Donie Vanitzian, Associations: Buy A Pet, Throw a Party? If Your Deed's Restricted Maybe Not, L.A. Times, Apr. 18, 2004, at K12 (describing pet restrictions and other covenants).
13. Milo Ippolito, Condo Owners to Plead for Pets, Atlanta J.-Const., June 5, 2004, at 4E (describing the maximum weight limits for homeowners' pets and how to prove compliance).
14. Elizabeth Razzi, House Rules, Kiplinger's Pers. Fin., Sept. 2000, at 86-87 (discussing rules imposed on residents of developments in the Dallas-Fort Worth area).
15. Glenn Small, Written Permit for Feeders Is for the Birds, Balt. Sun, May 14, 1995, at 10C (describing the Architectural Committee permit needed for the design of birdfeeders).
16. David L. Kirp, Pleasantville, N.Y. Times, Sept. 19, 1999, § 7, at 22 (describing life in Disney's "model town," Celebration in Florida) (book review).
17. Jesse Clements, Homeowners Feel Blindsided over Deed Restrictions, San Antonio Express-News, Aug. 12, 1996, at 9A (describing the control that the Architectural Committee has over style and color of one's home).
18. Id.
19. Alan Cherry, Rules Shut Out Homeowners' Storm Awnings, Sun-Sentinel, April 21, 1993, at 1A (describing a Florida law that prohibits homeowners' associations from banning the use of hurricane shutters, but allows for associations to dictate their color).
20. Kirp, supra note 14, at 22 (describing regulations placed upon residents living in Celebration).
21. Sprunk v. Creekwood Condo. Unit Owners' Ass'n, 573 N.E.2d 197, 198-99 (Ohio Ct. App. 1989) (upholding as reasonable denial of owner's request to install screen door);
22. Janis Fontaine, New Concepts in Screens Is a Breath of Fresh Air, Palm Beach Post, March, 14, 1999, at 2H (describing a screen that gets around many homeowners association prohibitions regarding screen doors);
23. Katherine Snow-Smith, Some Chafe at Swing Set Restriction, Screen Door Disputes, St. Petersburg Times, July 26, 1998, at 7 (describing the disputes regarding screen doors within some homeowners' associations).
24. Jim Wasserman, Home Sweet Home Can Sour with Homeowners' Conflicts, L.A. Times, July 20, 2003, Pt. 2, at 9 (describing various dictates by homeowners' associations, including prohibitions on the posting of political signs);
25. see generally Todd Brower, Communities Within the Community: Consent, Constitutionalism, and Other Failures of Legal Theory in Residential Associations, 7 J. Land Use & Envtl. L. 203, 204 (1992) (discussing restrictions that "have pervaded all aspects of residents' lives, from the provision of services and amenities to the control of behavior outside and inside the individual unit").
26. H.M. Cauley, Cluster Home of the Week; Woodlands; Covenants Protect Dunwoody Homes, Atlanta J.-Const., June 20, 1999, at 12HF (describing various restrictions on homeowners' behavior, including a prohibition on open garage doors);
27. N.R. Kleinfeld & Tracie Rozhon, In Flat Market, Co-Op Life Has Steep Ups and Downs, N.Y. Times. Oct. 30, 1995, at A1.
28. Gated community living has been referred to as "government by the nice, for the nice." Government by the Nice, For the Nice, Economist, July 25, 1992, at 25;
29. See Setha Low, Beyond the Gates: Life, Security, And The Pursuit of Happiness in Fortress America 153-73 (2003) (exploring the connection between "Niceness and Property Values").
30. Low, supra note 22, at 153-73;
31. James Howard Kuntsler, Home from Nowhere: Remaking Our Everyday World for the 21st Century (1996) (detailing how the American dream is linked to the yearning for a pleasant and peaceful place to live).
32. Cmty. Ass'ns Inst., supra note 2 (noting development of community associations). On its informational website, which is peppered with lots of "interesting facts," the Community Associations Institute states that "community associations help protect home values by insuring compliance with rules and deed restrictions."
33. Low, supra note 22, at 162.
34. Low, supra note 22, at 31-32.
35. Paula A. Franzese, Does It Take a Village? Privatization, Patterns of Restrictiveness and the Demise of Community, 47 Vill. L. Rev. 553 (2002) [hereinafter Franzese, Does it Take a Village];
36. see also Paula A. Franzese, Building Community in Common Interest Communities: The Promise of the Restatement (Third) of Servitudes, 38 Real Prop. Prob. & Tr. J. 17, 19 (2003) [hereinafter Franzese, Building Community].
37. Laura Castro Trognitz, "Yes, It's My Castle": Suits by Unhappy Residents Against Homeowners' Associations Grow, 86 A.B.A. J. 30 (2000) (noting that homeowners' associations are empowered, typically in the given development's originating documents, to assess and impose penalties for noncompliance with governing restrictions).
38. Dennis R. Judd, The Rise of the New Walled Cities, in Spatail Practices 144, 158 (Helen Liggett & David C. Perry eds., 1995) (chronicling homeowners' associations "tendency toward autocratic rule" and resultant litigation or threats of litigation);
39. Kleinfeld & Rozhon, supra note 21, at A1 (describing New York's intra-coop disputes);
40. Trognitz, supra note 28, at 30 (noting that lawsuits by unhappy residents against homeowners' associations are growing);
41. Tim Vanderpool, But Isn't This My Yard? Revolt Against Neighborhood Rules, Christian Sci. Monitor, Aug. 18, 1999, at 2 ("[H]eavy handed rules and arbitrary enforcement are sometimes blamed for pitting neighbor against neighbor, and turning serene subdivisions into raucous battle zones. The result may be a budding national backlash.").
42. Matthew Benjamin, Hi, Neighbor, Want to Get Together? Let's Meet in Court!, 129 U.S. News & World Rep., Oct. 30, 2000, at 57 (defining right to self-help foreclosure as meaning that the "association doesn't need a hearing or a judge to sell a resident's house to collect fines and legal fees," and noting that homeowners' associations can tax residents to finance lawsuits).
43. Dave Weber, Neighbors Racist, Orlando Sentinel Trib., Nov. 3, 1994, at 1 (describing accusations of pattern of racism to exclude African-Americans from condominiums);
44. African-American Family Sues Homeowners' Association for Race Discrimination, U.S. Newswire, Feb. 14, 2003, at National Desk (describing a community pool to keep out black guests attending a family reunion);
45. Doreen Iudica Vigue, Thy Neighbor's Keeper. Covenants Give Homeowners Mandate to Keep Up Community Appearances, Boston Globe, Aug. 4, 1995, at 1 (noting how homeowners' associations encourage a lack of socioeconomic diversity that "smacks of classism" to some people).
46. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community 19 (2000) (defining "social capital" as social networks and the norms of reciprocity and trustworthiness that arise from them).
47. See id.;
48. see also Franzese, Does It Take a Village, supra note 27, at 34 (describing how CICs can use design, more participatory governance structures, and other devices to promote emergence of helpful social norms).
49. See infra notes 117 to 139 and accompanying text.
50. In a number of markets, the designation "No HOA" (No Homeowners Association) has become a selling point. Razzi, supra note 12, at 88.
51. See generally Evan McKenZie, Privatopia: Homeowner Associations and the Rise of Residential Private Government (1994) (exploring the dimensions of privatization as applied to common interest communities).
52. Duane D. Stanford, Covenants a Basis for Turf Battles, Atlanta J.-Const., May 8, 2000, at 1A (describing requirement that certain type of grass be planted).
53. See Vigue, supra note 31, at 1 (describing covenants that restrict clotheslines);
54. Dru Sefton, Hanging on to Clotheslines Conservation of Watts and the Old Ways Drive a Movement, Seattle Times, July 16, 2004, at C1 (describing CIC restrictiveness including clothesline ban);
55. Letters To The Editor, San Diego Union-Trib., July 19, 2001, at 15 (describing environmentally conscious residents of homeowners' associations that prohibit visible clotheslines hanging in their garages).
56. See Consumer & Governmental Affairs Bureau, Fed. Communications Comm., Consumer-Owned Satellite Dishes and Other Antennas, at www.fec.gov/cgb/ Consumer facts/consumerdish.html (last visited April 29, 2005);
57. see also Christopher Combs, Your Home Your Way, Ariz. Republic, June 26, 2004, at 5W (detailing regulation of satellites by homeowners' associations that used to prohibit them);
58. Richard Rostron, Law Forces Village to Rethink Ban on Satellite Dishes, Chi. Trib., Aug. 18, 1998, at 3MC (discussing the new law that prohibits prohibitions on satellites).
59. Judd, supra note 29, at 144 (describing prohibition on signs).
60. Id. at 144-45.
61. Kirp, supra note 14, at 22 (describing restrictions imposed on residents living in Disney's "model town," Celebration, located in Florida).
62. N.R. Kleinfeld & Tracie Rozhon, In Flat Market, Co-op Life Has Steep Ups and Downs, N.Y. Times, Oct. 30, 1995, at A1 (describing patterns of restrictiveness in New York cooperatives).
63. Id.
64. Wasserman, supra note 20, at 9 (describing various dictates by homeowners' associations including pet size);
65. Ippolito, supra note 11, at 4E (describing maximum weight that pets may be and how to prove that weight);
66. Glassman & Vanitzian, supra note 10, at K12 (describing pet restrictions and other covenants).
67. Razzi, supra note 12, at 86-87 (describing rules imposed on residents in Dallas-Fort Worth development).
68. Small, supra note 13, at 10C (describing permit needed from Architectural Committee for design of birdfeeders).
69. McKenzie, supra note 36, at 122 (the "narrow private purpose" of CICs is "protection of property values");
70. Low, supra note 22, at 154.
71. Wayne S. Hyatt, Creating Community in Community Association, in ALI-ABA Course of Study: Drafting Documents for Condominiums, PUDs, and Golf Course Communities, S.F. 60 A.L.I.-A.B.A. 443, 467 (2000) (citing top three causes of homeowner association discord as "apathy, lack of knowledge of the restrictions at the time of purchase, and a lack of understanding of the board's fiduciary duties"). Prof. James Winokur offers a powerful account of buyers' lack of awareness of governing restrictions when he observes: Most prospective owners do not intelligently review the restrictions to which they subject themselves upon acceptance of a deed to land burdened by servitudes. The documentation typically makes long, boring reading for laypersons, who rarely retain counsel to review the documentation involved in home purchases. Even those who read the restrictions in advance may miscalculate their own future attitudes toward servitude restrictions, perhaps inaccurately expecting that friendly relations with neighbors will eliminate hostile disagreements between residents. Such optimistic expectations are often disappointed.
72. James L. Winokur, The Mixed Blessings of Promissory Servitudes: Toward Optimizing Economic Utility, Individual Liberty and Personal Identity, 1989 Wis. L. Rev. 1, 59-60 (1989).
73. Buyers typically do not have the freedom to bargain over provisions contained in the declaration of CC&Rs, which is described aptly as "a 200-page adhesion contract, which is merely a stack of non-negotiable, standardized boilerplate provisions." Evan McKenzie, Reinventing Common Interest Developments: Reflections on a Policy Role for the Judiciary, 31 J. Marshall L. Rev. 397, 398 (1998).
74. See Stephen E. Barton & Carol J. Silverman, Shared Premises: Community and Conflict in the Common Interest Development, in Common Interest Communities: Private Governments and The Public Interest 129,137 (Stephen E. Barton & Carol J. Silverman eds., 1994) (noting that many homeowners who bought into a common interest community did so because "ordinary neighborhoods were too few");
75. see also Winokur, supra note 49, at 58 ("[A]s more and more residential properties are bound by servitude regimes,... the option to reject the model(s) of servitude regimes prevailing in a given area becomes less realistic for substantial segments of the real estate market...." (footnotes omitted)).
76. My Redneck Neighbor, http://www.joespc.com/carlos/redneck.htm (personal webpage) (documenting misadventures of a neighbor, such as the theft of building materials from a neighbor's home to construct a mailbox, conversion of a back porch into a chicken coop, use of a backyard as a sanctuary for Canadian geese and pigs, the prevalence of loud music from late-night karaoke parties, unlicensed and unsafe home improvements, the adornment of a mailbox with religious statues, and the damage caused by improperly disposed-of motor oil) (last revised April 11, 2002).
77. See generally Mark Moran & Mark Sceurman, Weird U.S. (2004).
78. Id. at 176.
79. Id. at 167.
80. See Mark Sceurman & Mark Moran, Weird New Jersey 158-59 (2003).
81. See generally Sceurman & Moran, supra note 56 (used as a guide for "oddity sightseeing that encourages the public to come view these sites).
82. Low, supra note 22, at 153-73.
83. Id. at 153.
84. Id. at 159.
85. The Restatement (Third) of Property: Servitudes notes that the common interest community resident's investment is the resident's home, "which is often the largest single asset the member owns, and which has personal and social significance far beyond the monetary value of the asset." Restatement (Third) of Property: Servitudes § 6.13 cmt. b.
86. The designation "No HOA" now appears in some real estate ads because, as one realtor explains, "[f]or most people it is a real selling point." Razzi, supra note 12, at 88.
87. See Franzese, Does It Take a Village, supra note 27, at 572-76;
88. G.D. Gearino, Before You Get Too Smug, News and Observer (Raleigh, N.C.), Dec. 17, 2002, at E1 (describing homeowners' associations as bringing out the worst in human nature because restrictions promote meddlesome behavior).
89. Benjamin, supra note 30, at 58.
90. Chuck McCullough, Studying Homeowners Groups Lawmakers Have Concerns About Too Much Power, Foreclosures, San Antonio Express-News, Jan. 13, 1999, at 1H (describing various measures that homeowners' associations have to penalize residents for nonconformity). Benjamin, supra note 30, at 58 (defining right to selfhelp foreclosure and noting that "association doesn't need a hearing or a judge to sell a resident's house to collect fines and legal fees," and can tax residents to finance lawsuits).
91. See Benjamin, supra note 30, at 56-57.
92. Michael Arges, Twin Rivers Lawsuit to Tax Owners: Official Estimates That Defense Will Cost the Community $250,000 to $300,000, Windsor Heights Herald, Aug. 10, 2001.
93. Joe Kollin, Bush Signs Bills to Protect Owners from Boards, Sun-Sentinel, June 25, 2004, at 6B (describing various ways that the new bill passed in Florida will help homeowners association residents deal with governance by board);
94. Carmen Greco, Jr., Love Thy Neighbor? Homeowners Association Squabbles Often Turn Nasty, Chi. Daily Herald, June 21, 2003, at 1 (describing lack of people willing to take leadership positions because of what they perceive as a "thankless job");
95. Hyatt, Creating Community, supra note 49, at 467 (citing top three causes of homeowner association discord as "apathy, lack of knowledge of the restrictions at the time of purchase, and a lack of understanding of the board's fiduciary duties").
96. Laura Williams-Tracy, Covenants Gain Clout in Neighborhood Governance, Bus. J., Sept. 8, 2000, at 27.
97. Id. at 27. Later, a court voided the foreclosure.
98. Id. at 30.
99. Vanderpool, supra note 29, at 2.
100. Curtis Sproul, The Many Faces of Community Associations Under California Law, in Common Interest Communities: Private Governments and the Public Interest 45, 51 (Stephen E. Barton & Carol J. Silverman eds., 1994) ("Because large numbers of residents chose to remain uninvolved, the dominance and power of individuals and factions who actively participate in association management can be disproportionately great and if that power is exercised irresponsibly or capriciously, a 'tyranny of the petty' can result." (Footnote omitted.)).
101. Restatement (Third) of Property: Servitudes § 6.13.
102. Id. § 6.13 cmt. b.
103. Alan Saly, Habitat Magazine, April issue, at http://www.ccfj.net/ twinrivers.htm (last visited April 29, 2005).
104. Id.
105. Razzi, supra note 12, at 88.
106. Id.
107. Bob Mayer, Misery By Association? New Laws?, Mar. 18, 2004, http:// www.ccfj.net/HOAFLmisery2.html (last visited April 29, 2005).
108. A Consumer Alliance, http://www.ccfj.net/index.html (providing various news and legislative actions for members of HOAs seeking to change the rules) last visited April 29, 2005).
109. See generally Kenneth Budd, Be Reasonable! How Community Associations can Enforces Rules without Antagonizing Residents, Going To Court, or Starting World War III (1998);
110. Jordan I. Shifrin, Guilt by Association: A Survival Guide for Homeowners, Board Members and Property Managers (2001).
111. For example, a Michigan family who painted their home purple (their favorite color) in violation of a governing restriction had their mailbox vandalized, their car stolen, and sand dumped in their pool. Maureen Feighan, Fight over Rights Gets Unneighborly, Detroit News, Dec. 22, 2000, at A1. Other instances of neighbors "jumping the fence of civility" abound.
112. See Williams-Tracy, supra note 69, at 30.
113. Low, supra note 22, at 159 (citation omitted).
114. Id. at 168.
115. Id.
116. James Howard Kunstler, Home From Nowhere, Remaking Our Everyday World for the 21st Century (1998);
117. Low, supra note 22, at 173.
118. Franzese, Does It Take a Village, supra note 27, at 571 (recounting the contents of www.concordhomes.com/co/co_reenfield.html) (last visited April 29, 2005).
119. Kirp, supra note 14, at 22.
120. See generally Douglas Frantz & Catherine Collins, Celebration, U.S.A.: Living in Disney's Brave New Town (1999) (chronicling the experience of living in Celebration);
121. Andrew Ross, The Celebration Chronicles: Life, Liberty and The Pursuit of Property Value in Disney's New Town (1999) (describing difficulties of life in Celebration) (recounted in Franzese, Does It Take a Village, supra note 27, at 571).
122. Franzese, Does It Take a Village, supra note 27, at 558-59;
123. Franzese, Building Community, supra note 27, at 19.
124. Low, supra note 22, at 167.
125. Id. at 167-68.
126. Jared Diamond, Collapse: How Societies Choose To Fail or Succeed (2004).
127. Jared Diamond, The Ends of the World as We Know Them, NY Times, Jan. 1, 2005, at A13.
128. Id.
129. Fla. Stat. Ann. § 720.301-720.320 (West 2004).
130. Fla. Stat. Ann. § 720.304 (West 2004) (specifically prohibiting "Strategic Lawsuits Against Public Participation" or "SLAPP" suits, whereby a homeowners' association uses its association fees to file a lawsuit against a homeowner for the purposes of slowing down a cause of action and increasing litigation costs, and providing for treble damages to a homeowner in cases where it can be demonstrated that a homeowner association filed such a SLAPP).
131. See Jan Bergemann, Florida Legislative Session 2004: Reforms for Condo-owners and Homeowners?, May 11, 2004, at http://www.ccfj.net/ CCFJSummLeg2004.html (last visited April 29, 2005).
132. See Fla. Stat. Ann. § 720.311 (West 2004) (creating a state ombudsman in the Department of Business and Professional Regulation.);
133. see also Valmore R. Lucier, Final Legislative Report: From the Viewpoint of a Homeowner!, May 26, 2004, at http://www.ccfj.net/ CCFJSummLegVAL.html (last visited Apr. 29, 2005).
134. Nev. Rev. Stat. 116.625 (2005) (creating a state ombudsman under the rubric of Uniform Common Interest Community Act).
135. See also H.B. 2214, 47th Leg., 1st Reg. Session (Ariz. 2005) (proposing to reform CIC regulation in the State of Arizona; creating an office of state ombudsman and ending nonjudicial foreclosure as a means of enforcing covenants, conditions and restrictions);
136. S.B. 137, 2005-2006 Leg., 1st Reg. Session (Cal. 2005) (proposing to prohibit nonjudicial foreclosure on properties with outstanding balances of less than $2,500 and creation of state ombudsman office to officiate disputes between homeowners and their associations).
137. Nev. Rev. Stat. § 116.1116 (1997) (later revised to Nev. Rev. Stat. § 116.625 (2005)).
138. Nev. Rev. Stat. § 116.625(4) (2005).
139. Office of the State Ombudsman for Owners in Common Interest Communities, Real Estate Division of the State of Nevada, Creation and Purpose of the Office, at http://www.red.state.nv.us/CIC_ombuds.htm (last visited Apr. 29, 2005);
140. see also Nev. Rev. Stat. § 116.625 (2005).
141. AB 2598, 2004-2005 Leg., 1st Reg. Session (Cal. 2004) (proposing a limitation on the authority of homeowners' associations to foreclose on homeowners, that passed in the California State Senate by a vote of 32-1);
142. see also Jan Bergemann, Schwarzenegger Terminates Hopes of Millions of Homeowners Around the Nation, Oct. 3, 2004, at http://www.ccfj.net/ HOACAterminatesforeclbill.html (last visited Mar. 15, 2005).
143. Id.;
144. see also S.B. 137 (Cal. 2005), supra note 99 (prohibiting nonjudicial foreclosure on properties with outstanding balances of less than $2,500 and creation of State Ombudsman office to mediate disputes between homeowners and their associations);
145. Jake Henshaw, Lawmakers Toss Around Idea of State Bureau to Address Conflicts, The Desert Sun, Feb. 15, 2005, available at http:// www.thedesertsun.com/apps/pbcs.dl1/article?AID=/20050215/NEWS10/ 502150313&SearchlD=73199242410284 (last visited Mar. 15, 2005).
146. See Ariz. H.B. 2214 (2005), supra note 99 (proposing a homestead exemption from foreclosure on homeowners' association members who are delinquent in paying fees or fines and creating a state agency to mediate disputes between homeowners and their associations);
147. see also Cary Aspinwall, Legislator, Activist Put Homeowners Associations in Cross Hairs, Ariz. Republic, Feb. 8, 2005, available at http://www.ccfj.net/HOAAZforeclbill.htm. (last visited Mar. 15, 2005).
148. § 2016(2)(f)(1), 211th Leg., Nov. 8, 2004 (N.J. 2004).
149. § 2016(50), 211th Leg., Nov. 8, 2004 (N.J. 2004).
150. § 2016(52)(d), 211th Leg., Nov. 8, 2004 (N.J. 2004).
151. § 2016(63), 211th Leg., Nov. 8, 2004 (N.J. 2004).
152. § 2016(54) 211th Leg., Nov. 8, 2004 (N.J. 2004).
153. § 2016, 211th Leg., Nov. 8, 2004 (N.J. 2004);
154. see also Margaret Bar-Akiva, Bill Seeks To Bring Democracy to Homeowner Associations, Asbury Park Press, Feb. 17, 2005, http://www.ccfj.net/ HOANJbill05.html (last visited April 29, 2005).
155. Fla. Stat. Ann. § 720.401(1)(a) (West 2005) (requiring disclosure of mandatory participation in a homeowner association, the existence of restrictive covenants, conditions and restrictions, the builder's right to amend these restrictions, and the possibility of special assessments to maintain the property value).
156. See also Fla. Stat. Ann. § 720.401(1)(b) (West 2005). The statute provides that: [i]f the disclosure summary required by section 720.401, Florida statutes, has not been provided to the prospective purchaser before executing this contract for sale, this contract is voidable by buyer by delivering to seller or seller's agent or representative written notice of the buyer's intention to cancel within 3 days after receipt of the disclosure summary or prior to closing, whichever occurs first. Any purported waiver of this voidability right has no effect. Buyer's right to void this contract shall terminate at closing.
157. Id.;
158. see also N.J. Stat. Ann. § 45:22A-46 (2005) (allowing perspective buyer to void purchase for the sale of real property within seven calendar days of execution of the contract unless seller provides to buyer a complete public offering statement that includes a disposition of the covenants, conditions, and restrictions encumbering the property, and further entitling the buyer to double damages suffered and reasonable attorney's fees pursuant to N.J. Stat. Ann. § 45:22A-37 (2005));
159. Alaska Stat. § 34.08.530 (2002) (allowing rescission of the contract and additional punitive recovery of up to 10% of the purchase price of the property for failure to properly disclose covenants, restrictions, and conditions to prospective buyers.);
160. N.Y. Real Property Law § 465 (2005) (providing a $5,000 reduction in the contract price for the sale of land and any actual damages when a seller has failed to disclose the existence of a homeowners' association in the Property Condition Disclosure Statement).
161. For example, a majority of states have a commission, board, agency, or other entity in charge of monitoring ethics in government. See Daniel J. O'Hern & Paula A. Franzese, Report of the Special Ethics Counsel to the Governor of the State of New Jersey 76-77 (2005) [hereinafter N.J. Ethics Report], available at http://www.state.nj.us/governor;
162. Council of State Governments, Book of the States 300, table 6.13 (Keon S. Chi ed., 2004) (table listing ethics related agencies for cities, states, and the federal government). For example, California's Fair Political Practice Committee has a comprehensive auditing program, with its own full-time staff.
163. N.J. Ethics Report, supra, at 86.
164. To ensure the integrity of these commissions, most are independent and unsalaried. Id. at 77-78.
165. Many other state governments, state agencies, and federal agencies have recently reformed their ethics laws in an effort to improve the ethical environment of their state government and restore the public's trust. For example, Hawaii recently reformed its ethics laws to mandate ethics trainings for all executive employees. Haw. Rev. Stat. § § 84-41-43 (2004).
166. The U.S. Department of Defense recently announced changes to its post-government service restrictions, including annual certification by senior personnel that they are aware and are in compliance with ethics regulations.
167. See News Release No. 1309-04, Office of the Assistant Secretary of Defense: Public Affairs (Dec. 20, 2004), available at http:// www.defenselink.mil/releases/2004/nr20041220-1882.html (last visited Apr. 29, 2005).
168. Acting Governor Richard J. Codey, Exec. Order No. 3, Nov. 17, 2004. We issued our Final Report to Governor Codey on March 14, 2005. N.J. Ethics Report, supra note 113.
169. N.J. Ethics Report, supra note 113, at 58.
170. Id. at 82.
171. Id. at 97.
172. Id. at 82.
173. Id. at 97.
174. N.J. Ethics Report, supra note 113, at 98.
175. Louis Brandeis, Other People's Money 62 (Nat'l Home Library Found. ed. 1933).
176. See, e.g., Cherry Hill Manor Assocs. v. Faugno, 861 A.2d 123 (N.J. 2004);
177. Levandusky v. One Fifth Ave. Apart. Corp., 553 N.E.2d 1317 (N.Y. App. 2001);
178. see generally Joni Greenwalt, Homeowners Associations: A Nightmare or a Dream Come True? (2d ed. 2001).
179. Section 302 of the Sarbanes-Oxley Act requires the CEO and CFO of each company to certify the "appropriateness of the financial statements and disclosures contained in the periodic report, and that those financial statements and disclosures fairly present in all material respects the operations and financial conditions of the issuer...." Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, § 302, 116 Stat. 745 (2002) (codified in scattered sections of the U.S.C.).
180. Id.
181. Sarbanes-Oxley Act, § 404.
182. For an extensive list of publicly traded companies that have made use of outside consultants, see the client list of Integrity Interactive at http://www.integrity-interactive.com/compliance/clients.htm (last visited Apr. 29, 2005).
183. See, e.g., Integrity Interactive, Ethics and Compliance Training and Employee Communications, at http://www.integrity-interactive.com (last visited April 29, 2005).
184. For example, Integrity Interactive's "Risk-Based Curricula" evaluates employee risk based on a risk profile developed through an evaluation of an employee's job level, job function, division, experience in combination with the industry, type of company, locations, and language used.
185. See, e.g., N.J. Ethics Report, supra note 113, at 75-82, 86-87 (recommending the creation of an independent State Ethics Commission to be vested with various auditing and enforcement powers);
186. Senator Donald J. DeFronzo & James T. Fleming, Connecticut State Contracting Reform Task Force Final Report 11, 27 (Sept. 1, 2004) (recommending the creation of a Contracts Standards and Properties Review Board that would have shared civil investigation power with the Attorney General), available at http://www.ct.gov/governorrell/lib/ governorrell/SCRTF_Final_090104.pdf (last visited Apr. 29, 2005);
187. Governor M. Jodi Rell, Governor Rell Pushes for Law Encouraging "Citizen Watchdogs": Proposed Legislation Cracks Down on False Claims on State Property (Dec. 30, 2004) (press release announcing Governor Rell's intention to "offer legislation that creates incentives for private citizens to become government watchdogs and strengthens penalties against anyone who attempts to defraud the state"), available at http://www.ct.gov/governorrell/cwp/ view.asp?a=1793&q=288316 (last visited April 29, 2005).
188. See N.J. Ethics Report, supra note 113, at 78-82.
189. Id.
190. See supra notes text accompanying notes 98-104.
191. Paula A. Franzese, Mount Laurel III: The New Jersey Supreme Court's Judicious Retreat, 18 Seton Hall L. Rev. 30 (1988) (describing Council on Affordable Housing as first arbiter of exclusionary zoning challenges).
192. Thomas Jefferson, Notes on the State of Virginia 274 (Merill D. Peterson ed., Library of America 1984).
193. Franzese, Does It Take a Village, supra note 27, at 569-71 (describing ways to create authentic community in CIC models).
194. Restatment (Third) of Property: Servitudes § 6.13.
195. Franzese, Building Community, supra note 27, at 21.
196. Restatement (Third) of Property: Servitudes § 6.19(2).
197. Franzese, Building Community, supra note 27, at 21.
198. Restatement (Third) of Property: Servitudes § 6.7(3).
199. Id. § 6.7(2).
200. Id. § 6.7 cmt. b.
201. Id. § 6.13(1)(b)(c).
202. Id. § 6.13(c)(d).
203. Restatement (Third) of Property: Servitudes § 6.13 cmt. b.
204. Id.
205. Id. § 6.13(1)(d).
206. Id. § 6.13 cmt. a.
207. Id. § 6.13(2).
208. Restatement (Third) of Property: Servitudes § 6.13 cmt. b (citing aim of protecting "common-interest communities against excessive litigation and unnecessary judicial interference with collective decisions").
209. Id. (noting desire to protect "individual community members from careless and risky management practices, unreasonable exercise of discretionary powers, and unfair treatment at the hands of those who control the association.").
210. Susan F. French, Highlights of the New Restatement (Third) of Property: Servitudes, 35 Real Prop. Prob. & Tr. J 225, 236 (2000).
211. Wayne S. Hyatt, Common Interest Communities: Evolution and Reinvention, 31 J. Marshalll L. Rev. 303, 372 (1998) (recommending that originating documents contain only limited number of restrictions essential to development plan).
212. Philip Langdon, A Better Place to Live: Reshaping the American Suburb 91 (1994).