The New Supreme Law of the Land: Property servitudes

The implication (Restatement Third, Property, § 3.1) is that a servitude can be consistent with public policy if it reasonably violates a fundamental constitutional right, and is therefore valid.   An attempt to find a clarification brings the reader to “comment h”, which reads in part,The question whether a servitude unreasonably burdens a fundamental constitutional right is determined as a matter of property law, and not constitutional law.”

    How can a covenant, a servitude, that violates the US and state constitution not be illegal and invalid? It cannot, unless the courts adopt the position that servitudes are the supreme law of the land.  The courts have allowed amendments to the CC&Rs to deprive a homeowner of his property without compensation, and have validated ex post facto amendments.

Read complete eEditorial at Supreme Law.

Published in: on March 4, 2007 at 9:40 am  Comments (1)  

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  1. The new text within the Constitution reads:
    “to protect property values”
    “Whereas planned communities must be permitted to survive, and such suvivability stands foremost for the betterment and may require individual rights, once cherished by our Founding Fathers, to be subservient goals and objectives of the HOA.”

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