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111 Penn St. L. Rev. 759 (2006-2007)
In Search of the Middle-Ground: Protecting the Existing Rights of Prior Purchasers in Common Interest Communities

handle is hein.journals/dlr111 and id is 769 raw text is: In Search of the Middle-Ground: Protecting the Existing Rights of Prior Purchasers in Common Interest Communities Terrell R. Lee* I. Introduction During the last half-century, private residential communities governed by homeowners associations (HOAs) have rapidly proliferated, becoming the fastest growing form of housing in the United States.' Unfortunately, there continues to be widespread disagreement among courts, legislatures, and association members concerning the administration of these common interest communities, including the degree to which an HOA's authority should be limited.' Many jurisdictions have afforded the governing boards of these communities considerable discretion, recognizing common interest communities as private regimes by which community members have consented to be governed.3 However, some legal theorists have questioned whether participation in a common interest community is entirely voluntary.4 * J.D. Candidate, The Dickinson School of Law of the Pennsylvania State University (2007). 1. Armand Arabian, Condos, Cats, and CC&Rs: Invasion of the Castle Common, 23 PEPP. L. REV. 1, 24 (1995). 2. Compare, e.g., Breene v. Plaza Tower Ass'n, 310 N.W.2d 730, 734 (N.D. 1981) (holding that restrictions subsequently adopted by the HOA are not enforceable against prior purchasers) with Apple II Condo. Ass'n v. Worth Bank & Trust Co., 659 N.E.2d 93, 97 (Ill. App. Ct. 1995) (holding that [iun the absence of a provision either in the Amendment or in the original Declaration, condominium owners do not have vested rights in the status quo ante.). 3. See, e.g., Levandusky v. One Fifth Ave. Apartment Corp., 553 N.E.2d 1317, 1320 (N.Y. 1990); David C. Drewes, Putting the Community Back in Common Interest Communities: A Proposal for Participation-Enhancing Procedural Review, 101 COLUM. L. REv. 314, 317 (2001). 4. See Gregory Alexander, Freedom, Coercion, and the Law of Servitudes, 73 CORNELL L. REV. 883, 901-02 (1988) (discussing the coercive nature of membership in a homeowners association); see also Note, The Rule of Law in Residential Associations, 99 HARV. L. REV. 472, 481-83 (1985) (noting that a popular objection to consent theories is the argument that neither individuals nor a community can legitimately consent to

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