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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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