The New Law of the Land: contract as you wish

I wrote many times about the court and legislature’s hands-off CC&Rs policy, and adopted and promoted not only by the so-called public interest organizations when it comes to HOAs –  ACLU, Institute for Justice, CATO Institute, Goldwater Institute, etc.  Here’s the official position from the Restatement Third, Property (Servitudes), that legal source that courts use as the authority on common law:

§ 3.1, Validity of Servitudes, Comment a. (emphasis added)

This section applies the modern principle of freedom of contract to creation of servitudes. The Restatement of Contracts explains this principle: ‘In general, parties may contract as they wish, and courts will enforce their agreements without passing on their substance. . . . The principle of freedom of contract is rooted in the notion that it is in the public interest to recognize that individuals have broad powers to order their own affairs.’ The effect of this rule is to shift to the party claiming invalidity of a servitude the burden to establish that it is illegal, unconstitutional, or violates public policy.

The burden is placed on the homeowner to show, usually by the burden of evidence or proof, that the statute or covenant is invalid.  There are no restrictions in the above statement, or references to the use of legitimate police powers to regulate (as done many times in many other areas of law) making the task very, very difficult.  As examples, the courts have adopted the Restatement with respect to covenants that benefit the community as a whole (socialism, communal living) are valid irrespective of a homeowner’s individual rights under the Constitution, and ex post facto amendments are valid because the servitudes say there can be only one set of rules applied equally to all.

The Social Contract theory is dead. All contracts are just “pieces of paper”, subject to the laws of the man currently in power.
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Published in: on January 10, 2008 at 1:17 pm  Leave a Comment  

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