Putting the "Community" Back in Common Interest Communities: A Proposal for Participation-Enhancing Procedural Review

This Note discusses the standard of review that judges have applied when deciding cases challenging common interest communities' (CICs') rules and restrictions. After documenting and explaining the historical significance of the rise of common interest communities, this Note describes the...

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Bibliographic Details
Published in:Columbia law review 2001-03, Vol.101 (2), p.314-350
Main Author: Drewes, David C.
Format: Article
Language:English
Subjects:
Communities
Community
Community associations
Community participation
Community power
Community structure
Corporate governance
Corporate regulation
Fiduciary responsibility
Housing
Housing market
Judges
Law
Legal systems
New urbanism
Retirement communities
Social housing
U.S.A
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Summary:This Note discusses the standard of review that judges have applied when deciding cases challenging common interest communities' (CICs') rules and restrictions. After documenting and explaining the historical significance of the rise of common interest communities, this Note describes the deferential legal treatment that these communities' governing boards--and the rules they pass--have received. The Note then critiques this legal regime that has developed, arguing that it has contributed to the establishment of a stultifying culture of top-down decisionmaking within CICs that is anathema to "community." To combat this trend and ease the frustration many CIC residents consequently experience, this Note suggests judges alter the reasonableness standard currently in place and review challenges to community rules with an eye towards the procedure by which they were adopted. The Note concludes that in finding rules passed by way of a hierarchical, exclusive process less likely to be "reasonable," judges would encourage boards to elicit resident participation, which, in turn, would cultivate a genuine sense of community in CICs.
ISSN:0010-1958
DOI:10.2307/1123801