How servitudes (covenants) were used to legalize HOA powers

The following is taken from page 5 of  “THE MASS MERCHANDISING OF PLANNED COMMUNITIES:  HOW AMERICANS  LOST THEIR CONSTITUTIONAL & PROPERTY RIGHTS”, August 31, 2006, which is an analysis of THE HOMES ASSOCIATION HANDBOOK, Urban Land Institute Technical Bulletin #50, 1964 (This publication can be obtained from the Research Department of ULI for a  cost of about $180). 


In this manner, the Handbook set the stage for HOA local autonomy which the courts have repeatedly upheld over the US and state constitutions  (See Constitutional Local Government eEditorials, December 2007).


The Necessity for Covenants Running with the Land 

TB#50 makes it very clear in Chapter 1 that the homes association, by definition, is tied to covenants running with the land:

[W]e have taken the position that no organization is a homes association unless provided for, in some manner, in the covenants, deeds, or other recorded legal documents which affect title to the land within the development.”[1]

[T]he right to membership in such an association is automatic [mandatory in today’s jargon] for every home owner because it cannot be withheld from an owner whose land is charged with the obligation to pay its assessments.”[2]

This bible for creating planned communities impresses upon its readers that the community’s source of income is from maintenance funds, the assessments, that are legally levied against the land by recorded covenants, which bind each and every owner as a lien against the land. Numerous pages then explain and inform of the necessity for properly worded covenants that run with the land be part of the recorded declaration in order to make the association’s assessments on these members legally binding. The collection of assessments is the life-blood of the HOA, its source of revenue just as the state collects taxes to pay for its operation.

This obsession with the acceptance and survivability of the planned community dominates any concern for constitutional protections of homeowner rights to the extent that foreclosure becomes a weapon of enforcement against non-payment of assessments. This enforcement tool (for a detailed discussion of foreclosure, see Foreclosure below) is available because,

Fundamental to the legal arrangement for a homes association is the covenant for assessments which must be made to run with the land so that the association can be assured of a continuing, legally enforceable source of maintenance funds.[3]

In this manner, making use of equitable servitudes and covenants running with the land, TB#50 has side-stepped any and all contract law elements relating to a proper meeting of the minds, misrepresentation, proper notice of the covenants and restrictions, sufficient due process with respect to any surrender of constitutional rights. All these issues are easily bypassed by the real estate doctrine of constructive notice, the posting to the county clerk’s office leaving it the obligation of average Americans seeking to buy a home to discover what the had agreed to when they took possession of their new HOA controlled home. Recording the declaration also“establishes a ‘uniform scheme’ of land use . . . which is mutually enforceable among the home owners and by the homes association as their representative.”[4]

[1] Chapter 1, “Is it a Homes Association or Isn’t it?”,  p.5,

[2] Id, p. 6.

[3] Chapter 23, “Affirmative Covenants”, p. 314.

[4] Chapter 12, “Setting the Legal Foundation”, p. 199.

Published in: on December 10, 2007 at 5:27 pm  Leave a Comment  

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