HOUSING DISCRIMINATION: INTRODUCTION TO THE COURSE



PROPERTY II (FALL 2018)

INFORMATION MEMO FOR CHAPTER 2 (HOAs)

(10/8 Version)

Current Table of Contents

A. HOA REGS: KEY AUTHORITIES & CONCEPTS (IMH1)

B. SUBSTANTIVE INFORMATION (forthcoming)

C. REVIEW PROBLEMS: COMMENTS & BEST ANSWERS (IMH2-22)

A. HOA REGS: KEY AUTHORITIES & CONCEPTS

* = Possible Basis for the Policy Question

1. General Sense of Origin in State Statutes & Recorded Governing Dox (for Lawyering Qs)

2. Judicial Standards for Determining the Lawfulness of HOA Regulations

a. Generally: Distinction between Regs in Original Documents &Subsequent Regs and Interpretations

b. California Standards: Nahrstedt

c. Florida Standards: Hidden Harbour cases & Kies

3. Statutory Limits on HOA Regulations

a. Examples: Florida & California Statutes

* b. Different Approaches to Statutory Limits (Rev.Prob. 2H & Accompanying Slides)

4. Academic Approaches to Limiting HOA Regs

a. Harvard Note & Consent/Contract Theory

b. French Bill of Rights

c. Restatement (Third) of Propety

*d. Best Approach to Regulating HOA

*5. Strengths and Weaknesses of HOAs as Arguments For/Against Particular Regs

B. SUBSTANTIVE INFORMATION

forthcoming

C. REVIEW PROBLEMS: COMMENTS &

BEST STUDENT ANSWERS

1. USING THIS MATERIAL (See Info Memo for Chapter 1)

2. REVIEW PROBLEM 2A (H16) (DRUG CONVICTIONS)

Rev. Prob. 2A: Professor’s Original Comments: You were asked to apply the Nahrstedt majority, so discussions of the dissent, of Constitutional challenges, or of other states’ approaches to HOA rules were non-responsive.

(1) Relevant Interests of the Parties:

(a) HOA: TT will argue that excluding those with drug convictions is likely to reduce drug transactions and related theft and violence and will make it more difficult for those living in the community to purchase and use illegal drugs. As a resuilt, the community, and particularly the children, will be healthier and safer. Some residents may have expectation interests if they purchased because the rule made them feel safer. However, all of these benefits become more tenuous the less severe the underlying charge is and the longer ago the conviction occurred.

(b) Owners: The rule, as it did in this case, may interfere with family gatherings and in some cases may prevent family members from living together or prevent a resident from dating or marrying an ex-con. Positive identification of guests who might not have been notified of the screening may cause embarrassment and stigma both to the guest and the hosting owner. The screening may cause some administrative burdens, although there is pre-screening and checking probably is not very time-consuming.

(2) Nahrstedt Analysis

(a) Three-Prong Test

(i) Arbitrary? Rat’lly related to protection, preservation, operation & purpose of community. As the models argue, this is a very deferential test, and excluding the folks on the list plausibly makes the community safer and more drug-free (protection and preservation). Some residents may even have chosen TT because of the rule (purpose). O could argue that even under a deferential standard, the connection is too attenuated for long past minor convictions, but a court would have to be very skeptical to agree.

(ii) Against Public Policy: Under this test, the HOA doesn’t have to show that the rule furthers public policy; instead the challenger needs to show that the problems with the rule are severe enough that it violates public policy to employ it. Given that the database is public and gov’t-created, it’s hard to argue that using it to screen people is inherently improper. However, this is still likely to be O’s strongest claim. Under this heading, you might address the following concerns:

• Unfair to continue punishing those who have already “paid their debt to society,” especially where crime is minor or long time ago.

• May interfere with family gatherings and living situations

• Too intrusive to check all visitors

• Too stigmatizing to guests and hosts

(iii) Burdens on Ownership Far Outweigh Collective Benefits to Os: Under this heading, you could discuss how significant the safety and anti-drug benefits are likely to be and then compare them to the burdens on ownership caused by the problems noted above. O may have trouble meeting the “far outweighs” standard because many people would perceive the benefits to be significant and I am skeptical that this is the sort of rule that actually would drive property values down.

(b) Common Problems:

• The case is very deferential to HOA, created a strong presumption of validity. The challenged rule need not be especially well-tailored to its purposes.

• The case does not leave room for you to argue that excluding O’s aunt does not fit the purposes of the rule. The majority explicitly refuses to allow cat-by-cat (or aunt-by-aunt) litigation. You can argue that O’s situation is an example a problem that is likely to occur often enough to burden many residents.

• Some students argued that the rule might have been a pretext to exclude O’s aunt for discriminatory reasons. That argument is inconsistent with the problem, which says TT excluded her “because” of the DELONG listing.

• Some of you have startlingly stereotypical and old-fashioned images of 73-year old women. (73 is the new 58.) Almost half the answers referred to A as O’s “grandmother” rather than his aunt. Many of you argued that a 73-year old woman must be harmless or helpless and could not possibly be presently involved in drug-related activity. For all you know, she might be the leader of a large crime family or a drug importer who hasn’t been caught in 30 years. For a quite different view of a very competent 73-year old woman in a recent CBS news story, check out the link on the Property course page.

Rev. Prob. 2A: Professor’s 2018 Comments: Possibly Forthcoming

Rev. Prob. 2A: Best Student Answers:

Student Answer #1: This answer provided nice solid discussion of the parties’ interests and showed a strong understanding of the Nahrstedt legal tests. The student concluded with a long section talking about the policies underlying the Nahrstedt majority. Much of this discussion doesn’t add a lot to the analysis of my problem, but it contains several clever and useful points, so I left it all in.

In a jurisdiction that employs the Nahrstedt majority of "unless reaonsable" the court gives lots of deference to homeowners’ associations (HOA):

Burden far outweighs the benefit: I don't think there will be much burden here. The TT seems to be a upstanding well-to-do neighborhood with nice townhouses and security gateswhere they can screen the residents and visitors (prob takes a lot $$). The reality is that not too many people that will be able to afford this type of living will want to have visitors who are convicted drug dealers. Though there is the occasional rich spoiled child who sells drugs. Although there is a slight burden for families who live in the complex to not be able to invite some members of the family, the benefit is REALLY high to most people. Safety is of the utmost concern, which is why so many people pay to live in gated communities. Further, these families knew what they were getting into when they signed to live in TT. Since the test is very deferential to HOA, it is likely that they will win this because most of the residents will value safety over all else.

Not arbitrary; rational relationship to land: This clause will clearly do SOME good for the protection and purposes of this community. They wanted to ensure everyone's safety. Many apartment complexes and communities screen visitors to protect their residents. While not all convicted drug offenders are dangerous (people make mistakes), the reality is that people don't want to take a chance with their own or their family’s safety. It is not hard to draw a line here between the provision and a rational relationship to safety.

Violating Public Policy: This is the strongest prong for the O's Aunt. As a matter of policy, this country strongly values second chances. This could be seen as placing an unwanted stigma on someone who committed a mistake 40 years ago. Though this test does not consider the specifics of the case in front of it, as Omar's aunt infraction does not seem that severe (possession of weed), there a lot of people out there who have done drugs in the past and are now great and powerful people today. O could argue this provision discriminates based on people’s past

Secondly, this can also be seen as violating people's privacy. Although it is fine for the people who are residents to have a background check done on them because they are consenting to live there, checking every single visitor who wants to enter seems a little extreme. However, the HOA could counter by stating plenty of people who live in collective communities (apartment buildings, condo complexes, gated communities) give up some of their privacy by having things like doormen, security cameras, and gates.

Policies behind deference to homeowner's associations: The policies behind Narhrstedt are a huge argument in favor of the HOA. Narhrstedt gives them a lot of deference for several reasons:

Don't want to burden the court with overlitigation. They don't want to have to come to court every time someone doesn't pass a security check at the building. The cost of continuous litigation might be passed onto the homeowner.

People rely on the rules when they want to buy a home. Obviously the people who bought these homes were aware of the provision and they rely on it to ensure safety of themselves and their families. While it could be seen as an invasion to privacy they made the choice themselves to live there and sacrifice their privacy to ensure security for them and their neighbors.

Want to uphold contractual provisions/allow people to contract freely. In N the court gave more deference to rules that were in place from the beginning of the CC&R's than to rules that were amended. In this case these rules were in place from the beginning and no one seemed to have a problem with them. This is not low-income housing where there is a huge disparity in the bargaining power between the parties. The residents have the power to protect themselves and won't contract away rights that they value.

The court in N favored close-living living b/c it gives cheaper ways to own a home and increases efficient use of land. Although this is not a condo like in N. Same uses are here, they might have common areas that people can use. Townhouses are situated right next to each other, they take up less space. It would not be a stretch for a court to employ this policy reason to this case to say that close proximity makes safety concerns more important

Overall I would argue that due to the policy reasons, the deference of the N majority to homeowner's association, and the fact that the people in TT knowingly signed with this provision in there it seems that the HOA will be able to enforce the rule against O's Aunt.

Student Answer #2: This answer also showed a good understanding of the relevant test and includes some thoughtful discussion, especially under “Against Public Policy.”

The issue here was put into the original rules created by the developer. The court is more likely to enforce a rule in the original cc&r than something added in later, because the person knew of the rule before buying the unit to begin with. However, the rule must still meet certain requirements pointed out in Nahrstedt.

Ag. Public Policy: The federal govt. created this list and presumably they are acting in the public's best interest. The public policy of such a list is something Congress has already decided upon. The question is whether banning people who are on the list from a development is taking the purpose of the list too far? That may depend on the make up of the community in TT. If there are many children in the community, banning people on the list from coming is probably not against public policy- what was the list created for in the first place? However drug users can become clean-- are they forever on this list? should society give them a second chance? should the community give them a second chance? furthermore what if someone's adult child unfortunately had been convicted of drug posession- must that family move out of the community?

While these are valid concerns, a court's preference regarding rules set out in the original development will probably allow the court to see the rule as not being against public policy. O knew the rules before he bought into the community and the govt. decided that these lists should be created for a reason. Extending their use to screen guests in private communites where buyers knew of the rule will probably not be against public policy.

Rule is Arbitrary to protection purpose or preservation: This test is construed very broadly. If there is even some sort of connection between the rule and what it’s protecting then it will usually pass this test. Drug users are usually associated with violence. A court may see this rule as helping to protect the security of the development and not arbitrary at all. Again, if TT has many children a rule keeping out drug users makes a lot of sense.

Burden far outweighs the benefits: This is a close call in this case. There are benefits to not allowing active users onto the community, but the rule is very harsh regarding one time offenders who have since been clean. O's aunt is exactly the situation in which the rule's burden outweighs the benefits. The court may require that the rule be rewritten because of the concerns. Perhaps the govt. list is too wide spead and should make distinctions between what people were arrested for and how many times they were arrested. Maybe the community can implement a drug testing policy for possible guests who have been on the list.

However, the jurisd. follows the Nahrstedt majority and doesn’t want "cat by cat" litigation. This rule does have serious benefits regarding active users or users of addicting drugs, so the court may uphold the ban on any person on the list because regarding active users the benefits outweigh the burden. Keeping children away from drug users is a strong public policy and of great benefit to ensuring the future of America. The list was most probably created for this exact reason: to allow parents the ability to know which people in a community may in some way harm their children and to keep their children protected from them.

2.. REVIEW PROBLEM 2B (H17) (ADULT OCCUPANCY)

Rev. Prob. 2B: Professor’s Original Comments: I rewarded recognition of the key interests on each side and knowledge and understanding of the Nahrstedt standards.

(i) Nahrstedt Three-Prong Test: The relevant legal standard, which we worked with extensively in class, is that CC&Rs in original documents are enforceable unless:

(A) Arbitrary: Case defines as not “rationally related to the protection, preservation, operation or purpose of the affected land.” Note that rule is different from the federal constitutional rational basis test (rationally related to furthering health, safety, welfare or morals) although it also is supposed to be very deferential to the rule-making body.

(1) Here, the rule almost certainly furthers legitimate HOA interests in limiting noise, traffic and trash and in providing adequate parking and security. The rule is unlikely to further interests in fire safety or overcrowding, because the more lenient gov’t codes presumably address those concerns.

(2) Because of Nahrstedt’s narrow definition of “arbitrary,” the high level of deference it gives to CC&Rs, and its use of the lenient “rationally related” language, the case does not support arguments that the rule is arbitrary because

(a) there’s no good reason to set a line at ten adults (v. eight or twelve) (see second model answer responding well to this claim); or

(b) the rule applies to adults and not to children who are often noisier.

(B) Against Public Policy:

(1) General Points:

(a) Your analysis under this factor should focus on whether the rule in some way violates public policy. The case presumes that the rule is valid, so you don’t need to argue that it is good public policy or that the good aspects outweigh the bad. The positive rationales for the rule are better discussed to show the rule isn’t “arbitrary.”

(b) Presumably the rule would violate public policy if it had been designed with a discriminatory purpose or was enforced in a discriminatory way. There is no evidence of that here, but you could mention it briefly. A few students discussed discriminatory enforcement under “arbitrary” as it would be in a procedural or constitutional context (see 3d model). Given the court’s definition of arbitrary, I think it better fits here.

(c) If you claim that the rule violates public policy for one of the reasons noted below by limiting the kinds of gatherings that residents can hold in their homes, these claims are weakened if residents have simple alternatives available such as using a large common room located somewhere within the development.

(2) In my view, the most plausible claims that the rule violates public policy are:

o Interference with right to associate: See solid discussions in all three models. Might note that this is a strong enough public policy that Florida protects it by statute.

o Interference with traditional family gatherings: American families commonly gather for holidays, birthdays and anniversaries. You would not be surprised if one of these gatherings in a four bedroom house included considerably more than 10 adults. The rule prevents this sort of gathering. You might cite Moore for the idea that there is a strong public policy supporting traditional activities of extended families. Also, imagine the press HH would receive if it were fining residents for having too many people at Christmas dinner.

o Interference with emergency situations: Suppose you have 10 adlts in your unit and one of them as a heart attack. If three EMTs arrive to care for the sick person, do three of the guests have to go stand in the rain until the EMTs leave? The rule might have exceptions for emergencies, but if it doesn’t, a court probably won’t approve this kind of enforcement.

(3) Arguments unlikely to succeed:

• Privacy/Right to do what you want in your home: Explicitly rejected in Nahrstedt. (See second model).

• More restrictive than gov’t codes: That a CCR is more restrictive than a parallel government provision doesn’t, by itself, violate public policy. HOA regulations generally are more restrictive than the relevant zoning; that is largely the point. Probably the best you can say (as does the first model) is that public policy doesn’t require the rule.

(C) Burden disproportionate (far outweighs) to benefit produced. As we discussed in class, this test is not a simple balance of benefits and burdens, but rather a check as to whether the rule creates hugely disproportionate burdens (like a requirement that the unit exterior be painted every month). Here, the rule almost certainly creates some marginal benefits regarding traffic, parking & noise, security, so O would need to argue that the burdens place on her right to associate or to have ordinary family social events are substantially greater. As with the public policy arguments, O’s burden arguments are much weaker if the HOA provides alternative meeting places within the complex. The first model does a nice job with this test.

(ii) Common Problems:

(A) Legal Errors

• Many students tried to assess the rule by looking just at the effects on and from O. (The second model does this a bit looking at disproportionate burden.) However, the case makes clear that court should not do individualized assessments but rather must look at the development as a whole.

• The Federal Constitution (generally speaking) does not apply to actions of private parties like HH.

• Many students made arguments that were substantively relevant but were placed under the wrong category. I gave partial credit for these.

(B) Points Not Responsive to the Question: I asked you to apply the Nahrstedt majority to the problem, so applying the dissent or Florida statutes or discussing compromises or changes to the rule were all outside the scope of the problem. Similarly, simply describing what happened in the case or listing the rationales was not responsive unless you connected these points to your analysis of the problem. The third model does a nice job using rationales in its conclusion.

Rev. Prob. 2B: Professor’s 2018 Comments: Possibly Forthcoming

Rev. Prob. 2B: Best Student Answers

Student Answer #1: [This student had a solid sense of the Nahrstedt test and did a nice job identifying the key interests of both O and HH.] Under the Nahrstedt majority analysis, a CCR is unreasonable if it 1) violates public policy, 2) is arbitrary, or 3) if the burden far outweighs the benefit.

(1) Public policy: This "Adult Occupancy Rule" (AOR) might be contrary to public policy. The state and local govt contemplated a maximum residency rule, as well as an occupancy rule. But the local govt found that the AOR would limit occupancy to 30 people. This indicates that at some level, state and local govt did not find a public policy need to develop an AOR that limits guests to 10 people.

By creating this rule, the HH Board is restricting owners' right to free association. A HOA cannot decide for owners who they can visit with and how many at a time. A book club gathering of more than 10 adults does not offend anybody's senses. In fact, it creates spaces for intellectual and educational conversations, which are sorely needed in most communities.

On the other hand, book clubs are not a protected group of people. This group can meet in another area, and does not need, as a matter of emergency or necessity, to meet in OO's home. It is even possible that HH has a community center or clubhouse where OO can meet with her book club without violating the AOR. HH's CC&Rs, then, do not go against public policy, since they are not restricting OO's right to associate with who she wants, how & when, but merely regulating how the space is used.

(2) Arbitrary: HH doesn't seem to be any kind of special interest housing, where the community is specifically set up around this notion of limited occupants in a unit. No apparent connection between the AOR and the purpose of the community exists. This gives the AOR an air of arbitrariness. Why does this rule exist? Perhaps some kind of historical document that might make a little more apparent the reason for implementing an AOR would be helpful in determining whether the rule is arbitrary.

Yet, regardless, OO knew or should have known of this AOR when she purchased the townhouse. She decided to buy into this community, knowing that visitors were restricted in #. This rule could create a living environment where people could not have enormous parties, making lots of noise and upsetting the neighbors. Perhaps residents wanted to live in a quieter place and were attracted by the AOR. If the AOR is in place to maintain a pleasant community, there is no reason why it could be interpreted as arbitrary.

(3) Burden vs. Benefit: The burden would have to far outweigh any benefit. Because this is not a simple balancing test, it requires a heightened burden on OO. Certainly, not being able to entertain a book club periodically could be very annoying to OO. Book clubs might require their members to occasionally entertain the group in order to remain a member. In this way, clubs have places to go without always burdening just one member. But as long as OO hosts the group gathering, there is no indication that it must be in her home. As stated above, HH may have a community center that, with a little planning, OO could use for her groups. Being a member of a book club may be an important part of OO's social life, but it is not clear that an inability to host a periodic gathering would greatly burden her.

The benefit to the community rests likely in not having to deal with frequent or populous gatherings. Many owners may have chosen to buy townhouses in HH because of this very rule. This benefit might be slightly infringed upon by the book club gatherings, though not greatly so. The danger comes because, in allowing one person to break the AOR, the community could soon be faced with nightly gatherings of over 10 people in each and every one of the units. This would be a huge infringement on the benefit to be enjoyed by the community under the AOR.

Conclusion: HH's AOR does not appear to be arbitrary, or to cause a far greater burden to OO than the benefit it provides to the community. But because it is likely against public policy, the AOR is unreasonable.

Student Answer #2: This student displayed a good understanding of the rules and of the HH interests and provided a nice two-sided discussion of O’s interests related to the Freedom of Association.

The Court in Nahrstedt put forth three standards upon which a provision of CC&R may be considered unreasonable. From the majority opinion, there is a strong presumption toward reasonableness of these provisions in order to promote uniformity and reliability for those privy to the contract. Underlying this theory is the idea that shared housing is a good thing, pooling resources makes housing affordable, and we want to encourage people to rely on these provisions. [MAF: Better technique to save these points and use them to bolster specific arguments below.]

(1) Void as Against Public Policy: Olive may argue that the regulation runs counter to public policy for a couple reasons. First she may cite her freedom of association. The book club meets regularly, may discuss profound issues, and she may have no other practical access to places for her meeting. Arguably, freedom of association represents a stronger right than pet ownership (don't say that to Justice Arabian). Olive would make this claim. She is being stripped of a more fundamental right, one that actually exists in the constitution. After all, businesses have to allow KKK members to associate even though they would rather not.

This claim, however, may be pretty easily defeated if the Hoffman Home Board allowed Olive to meet regularly, upon request, in a common area provided by the homeowners association. If there is no common area where Olive may hold her meetings, her claim may be much stronger. However, the Court may not think capping her association at 10 is persuasive as against public policy. She may associate with 10 people, discuss any subject she wishes, promote any activity she wishes and the CC&R will not intervene. The Court also will likely point to Olive's freedom to associate virtually anywhere else. For example, there are 11 members in her group she could meet at any one of their residences? Arguably freedom of association is not a right the Court will consider that CC&R's of a condo board will likely threaten in any real sense.

Second, Olive may claim that this meeting occurs in the privacy of her own home and that the homeowners association has no business regulation privacy actions. This argument failed in Nahrstedt; the CC&R could regulate within the private home. The Court excluded keeping a pet that likely will not escape, and even those that cannot escape, meaning their powers to regulate do not automatically stop at the door of the private residence.

(2) Arbitrary (No rational connection to the purpose/well-being of the community): The purpose here could easily be read to keep groups small, parties quiet, and not to disturb other residences. Further the rule may be a means to limit visitors and thus alleviate traffic or parking problems (depending on the shape and amount of available parking). Both of these concerns are legitimate and at least loosely tied to the goals of keeping a quiet and efficient neighborhood. The homeowners association could also say that they do not want excessive visitors using up more than the resident’s fair share of resources. This would be easier to achieve through a regulation of the amount of guests, rather than guests physically inside, but there is at least a tenuous connection to a legitimate interest.

Olive might argue that the number 10 is completely arbitrary. Although found in statute, that does not make the number reasonable. The purposes are likely different. The number 10 for living in a permanent residence may reflect legitimate traffic concerns, reflect a congestion/health concern, or some other standard that does not accompany temporary visitors. For Olive's purposes, she just wants two more guests. Why couldn't the rule be 15 instead of 10? How much more noise do 2 people make? Isn't it really dependent on the character of the people rather than the number of people? These are issues her lawyer would bring up in claiming 10 is completely arbitrary. She will, however, have trouble meeting the standard put forth because to fail the arbitrary test, the HOA would have to fail to assert any number of logical reasons for limiting to 10. They need not define why exactly 10 makes sense, the number drawn at any point would be arbitrary. The Court wants to promote reliability and does not want to litigate this claim, so has put forth a strong presumption of reasonableness.

(3) Burdens way out of proportion with ANY benefit: [MAF: This section is a little to focused on O, rather than residents generally]. The burdens here may be minimal, if there are other places Olive can meet or if she can simply limit her club to ten people in the unit by other means (teleconferencing is one example). Maybe she could have two weekly meetings. If, however, Olive is disabled and cannot leave the premises easily and there are no on-site options maybe the burden for Olive is exceptional. The benefits have been briefly outlined earlier-less noise, less congestion, and space more reserved to actual owners. Olive could argue her burden is especially troublesome, but I don't see this as being a winner for her, especially if there are other options. She could, for example, rent a room at a public library. The burden has to be so disproportionate to any benefit that it must be borderline offensive. Here Olive can still have her club, but just limit that same club to 10. Maybe the burden is exceptional if the club has been 12 strong (even though there may be more) for 40 years and she cannot offend her friends. In this scenario, Olive's friends may not provide the same benefit the rule generally implies. That is 12 noisy neighbors moving around or dancing. The rule, however, still promotes traffic considerations or resource considerations. That is, it still has some benefit without imposing some incredible burden on Olive (without inserting any facts not within the problem). The courts give even greater deference to the rules within the CC&R because they were agreed upon and there was notice by all the parties before they moved into the development. Olive is only being asked to comply with what she has formally been made aware and has agreed upon.

Student Answer #3: This student displayed a good understanding of the rules and of O’s interests although the answer is a little thin on HH’s interests.

CCRs are given a strong presumption of validity by courts, especially ones contained in the original set of governing documents. They are usually reasonable unless:

(1) Violate public policy: An argument could be raised that the CCR violates public policy because it restrains the freedom of association and the liberty of individuals to meet. While the Constitution will likely not come into play here (assuming this is private development), the ideas of freedom of association and liberty have been determined to be "American values" that benefit society. The ability to host adults for parties and holidays is likely impaired as well. However, this could turn heavily on whether the community provides other meeting space (for parties, clubs, etc.), but because CCRs are given such strong presumptions of validity and the buyers knew what they are getting themselves into, this probably does not violate public policy. Members could always go off-site to meet.

(2) Arbitrary (no rational relationship to common interest development's purpose): This policy does not seem to be arbitrary. It can prevent overcrowding, noise pollution of next-door homes, etc, which could be rationally related to the health, happiness, and enjoyment of homeowners in the development. There could be a problem if this being enforced only against Olive, or against everyone. It would also be important to know who comprises the Board, people who were spurned by the book club (or those close to them) or regular members. This rule likely is not arbitrary, however, because it is could rationally be connected to health, happiness, and enjoyment of owners in the development. It would be helpful to know exactly what the purpose is though.

(3) Impose a burden substantially greater than benefits: The burden could arguably be more substantial than the benefits. Are there other places to meet within the development? Restricting owners to less than 10 adult guests, visitors and members could impair property values and place some type of burden on one's ability to sell. [MAF: good idea; could be defended more.] Moreover, because the townhouses have four bedrooms, they seem to be designed for a lot of people and restrictions on the number of adults who can come in could restrict use of those bedrooms when large numbers of family or guests are visiting. Again, the reason for the restriction is important.

Conclusion: Given strong presumptions of validity, the Board likely can enforce this restriction. Olive knew what she was getting herself into when she bought, and must live with the positives and negatives of her choice. Guests can always meet elsewhere (like at Starbucks or somewhere else on the premises). This does place restrictions on associations and family in a sense (number of guests that can be over at once), but because of the strong presumption of validity, the Board is likely to be able to enforce so long as it enforces equally to all who violate and not just to Olive or book club members.

4. REVIEW PROBLEM 2C (H17) (NO SHELLFISH OR PORK)

Rev. Prob. 2C: Professor’s Original Comments: The answers were generally pretty good. I rewarded students who knew the three-part test from the majority opinion[1], kept their arguments tightly linked to those tests, and who offered serious arguments for both sides.

The biggest challenge was to find strong arguments against the rule, given the strong presumption of validity and the obvious connection between the rule and the purpose of the community. Several of you argued that the rule might be too burdensome if there are not sufficient options for equally affordable housing without the restriction. This is a reasonable idea, but given the urban setting of the problem and the peculiar nature of the rule, it is unlikely to be a problem. To me, the most serious arguments against the rule revolved around three concerns:

• Does the Rule Have Any Real Benefit? Many students sensibly questioned whether a rule that extended to eating within the units would provide any benefit to those Orthodox residents who presumably voluntarily followed the rule in their own units. That is, how does my refraining from eating/cooking pork and shellfish inside my unit make it easier for other people to “live an orthodox lifestyle?” I think there are some plausible answers that probably satisfy the rational basis test (odors if shared walls & ventilation; contamination of common areas; resalability to future Orthodox buyers) but if a court is skeptical of this rule to begin with, it might find an insufficient connection to purpose or preservation.

• Does the Rule Intrude Too Much Into People’s Lives/Homes? A court applying the test might decide that the rule violates public policy because it is too great an intrusion into private decision-making and conduct inside the units. Some courts might well accept this “privacy” claim. However, the dissent in Nahrstedt itself made this claim and the majority implicitly rejected it. Thus, to make the claim most effectively, you’d need to explain why the claim is stronger here than in Nahrstedt A few students got substantial credit for plausibly distinguishing live cats from dead pigs.

• Is the Rule an Inappropriate Expression of Religion: Overt religious discrimination is certainly against public policy in the context of the Nahrstedt test. Here, at first glance, the rule and its context seem free from any religious discrimination claims. Persons with any set of beliefs are accepted and the rule bans particular conduct that is not required by any other religion. However, a court might reasonably worry that, in practice, the rule would serve to exclude non-Orthodox and that, indeed, the developers intended that it would. Moreover, a court might view a restriction that has no purpose but religion as a way of a group forcing its religious beliefs on others.

The biggest problems with your answers involved failure to apply the test properly, either because you didn’t remember all or part of it, or because your arguments were not sufficiently related to the tests you were trying to apply. Other common problems included:

• Revisiting Policies Underlying Rule as Arguments: As is true for the decision in Shack, the rule in Nahrstedt represents a policy decision by the court, which it spends much of the opinion justifying with reference to notice, reliance, certainty, freedom of choice, etc. However, once you are applying the test, all of this has already been taken into account. You don’t further your argument by saying, “There is no great burden here because there is plenty of notice and anyone who doesn’t like the rule can live somewhere else.” That is true for every CC&R in the governing documents of every common interest community, so it doesn’t help decide if this is one of the rare rules we strike down.

• Invoking Rejected Unit-by-Unit Inquiry: The court specifically said that the test did not allow for unit-by-unit inquiry, but had to be focused on the community as a whole. In other words, the claimant was not allowed to argue, “My cats don’t cause odor and noise problems and I can’t live without them.” Several arguments about burdens really were based in similar claims that a narrow spectrum of individual unit-owners might make. These included interference with personal/family traditions, concern that a tight budget might make pork “necessary” for a particular family; and the highly implausible claim that some people might be allergic to everything but pork and shellfish.

• Insufficient Deference: Some of your arguments might be fine in the context of an ordinary balancing test, but were unconvincing in the context of the great deference Nahrstedt gives to community rules. The prong of the test involving harms and benefits asks whether the burden “substantially outweighs” any possible benefit. The use of the “rational related” language is deliberately invoking the very deferential scrutiny of the federal rational basis test used in, e.g., Belle Terre and Midkiff. This deference effectively precludes slippery slope arguments and claims that the rule is not the best way to accomplish their goals.

Rev. Prob. 2C: Professor’s 2018 Comments: Possibly Forthcoming

Rev. Prob. 2C: Best Student Answers:

Student Answer #1: [This answer understands Nahrstedt well and makes nice arguments correctly employing the three prongs of the test.] Overall, the Nahrstedt test is one of general deference to the HOA. It presumes that each covenant/restriction is reasonable unless proven otherwise. This creates a difficult burden on anyone trying to prove unreasonableness. The guidelines of the test are that the rule must be rationally related to the purpose and operation of the land/development and that it cannot be against public policy and that there is not a significant outweighing of burdens compared to benefits. The test also tends to allow rules that were in initial CC&R's as compared to ones passed later as amended by-laws.

Is this restriction about what cannot be eaten in the community rationally related to the purpose of the development? Without a doubt. The overall purpose of this community is to have a place for Jews to live together and practice their faith in an easy and convenient manner. Since shellfish and pork are forbidden by Jewish dietary laws, it seems entirely reasonable to forbid it because it directly relates to living as a good, practicing Orthodox Jew. However, the fact that someone might be eating pork or shellfish in the neighboring condo is not going to affect your ability to be a practicing Jew. This is a restriction that does not have any outward effects on others. Are non-Jews allowed to live in this community, too? If so, then one of them eating some fish in their own dining room is not going to hurt the rest of community's ability to practice its Jewish faith.

Is this against public policy? On the one hand, there is no constitutional right to be able to eat whatever food you want in your own home. There is nothing criminal or deviant about the rule. However, there are privacy issues at play here. One could argue that it is simply not fair and thus unreasonable to prohibit an activity that people do in their own homes. This argument gains strength if one can show that eating pork and shellfish will not be done in any common areas and if the smell is kept to a minimum, then no other members of the community would even know that the food was being consumed! This rule seems to interfere with privacy rights since the food restriction is strictly confined to personal home use.

Does the rule effect a heavy burden? This part of the test would be passed based on the Nahrstedt court because it explicitly did not balance the harms and benefits; instead, the court would need some significant evidence that the burden is too great. Here, the burden is not bad at all. People are free to eat pork and shellfish at a restaurant or at a friend's house.

Overall: The original planners did all the necessary paperwork, included the food restriction in the original CC&R's, and created an open and distinct community based on Orthodox Jewish living. The N test was incredibly deferential, and based on the intentions of the planners, this rule would probably be reasonable notwithstanding the privacy issues.

Student Answer #2: [Although it does not use the precise language of the tests as well as the first answer, this answer does a particularly nice job on two-sided arguments regarding arbitrariness and burdens. I also liked the policy argument about available housing in the conclusion.] The Jewish group can lay heavy emphasis on the fact that their community does not discriminate against religion: they do not wish to regulate identity (who gets to stay in their condos), only behavior (what they get to do if they want to live there). This strongly indicates that nothing about the rule is against public policy. After all, Muslims don't eat pork either. Nothing about this rule would thus stop rabidly anti-Semitic Islamic fundamentalists from moving into the condos.

Next, it is reasonable for a religion having dietary restrictions against pork and shellfish to want to prohibit those meats: the regulation here is aimed directly at what is being limited. There is thus nothing "arbitrary" here. The rule is not ad-hominem (it is not specifically directed against any one particular tenant), and is clearly related to the Orthodox lifestyle.

Furthermore, restricting the consumption of pork and shellfish will impose no significant burden on the nutrition of residents. A resident could still get their share of protein and other nutrients found in pork by eating (kosher?) beef and chicken, and nothing stops a sea-food lover from consuming fish and other permitted sea-food. The burdens of this rule thus don’t come near to outweighing the benefits (providing a community compatible with Orthodox Jewish ideals).

Nevertheless, an opponent may easily call the rule arbitrary. If a resident quietly cooked pork or shellfish behind closed doors, why should his/her neighbors care? The Jewish tenants may object to the smell of cooking pork meat, but why, then, should a neighbor eating a ham sandwich (which was not cooked, and thus exudes no odors) be sanctioned? Arguably, eating pork/shellfish has no effect on neighbors' religious views: so long as nobody is being forced to eat pork/shellfish, there is no problem. Even Orthodox Judaism doesn’t prohibit Jews from living next door to a pork-eater, so long as they do not eat pork themselves. There is thus little interference with religious views of Jewish neighbors by one who occasionally eats pork.

Indeed, pork is a very common meat in the USA, and ham, for instance, is frequently eaten during Christmas by many families. One could thus say that although eating pork is not religiously required, it is deeply embedded in some traditions, and forcing residents to abandon this tradition imposes too heavy of a burden, much greater than any benefit (since a neighbor eating pork does not interfere with others' religious views and practices).

The Jewish group could make the argument that if a resident doesn't like their rules, they can go and live somewhere else. Why should a court disregard this view? After all, Jews are not a majority of the American population, and Orthodox Jews are an even smaller minority: not many condominiums are likely to impose such Orthodox restrictions on residents. Especially considering that these Jews have taken pains to ensure they are not actually limiting residents by religious beliefs, only by behavior, there does not seem to be a strong reason for a court to disallow Jewish residents from imposing such restrictions on themselves and their neighbors.

5. REVIEW PROBLEM 2D (H54) (NO TV: OPINION/DISSENT)

Rev. Prob. 2D: Professor’s Original Comments: What I was looking for: The Question asked you to both decide on an appropriate rule for assessing by-law changes by majority vote and to apply your rule to the facts of the case. In terms of the rule, I was looking for a discussion of the pros and cons of at least some of the possible options we explored in class (deference, constitutional limits, reasonableness with teeth, inside/outside distinction, traditional touch and concern, etc.) and for the majority and dissent to disagree as to the applicable rule. I also was looking for some discussion about the difference between “democratic” by-law changes and requirements that are laid out in the recorded declaration.

Common Errors: The most common error was failing to choose and defend a particular rule in each of your two opinions. Many of you announced a rule with no defense and then applied it to the facts. Many of you assumed that the Nahrstedt rule would apply even though (a) that case only involved restrictions in the declaration and (b) this jurisdiction had no governing law on the issue. Several of you discussed and applied several rules with no attempt to specify the one the court had adopted as law.

Another common error was extensive discussion of the elements of equitable servitudes or covenants. The state statute at issue, like the one in Nahrstedt, says that, if properly filed and recorded, homeowner’s restrictions run with the land unless unreasonable. That means that the technical requirements are all met by the filing and recording of the association documents and that you don'’ need to discuss them.

A third common error was misapplication of the rationally related test that is part of the Nahrstedt analysis. This is, as we discussed, a very deferential test. That the rule is overinclusive or underinclusive doesn’t matter (the pet restriction in Nahrstedt surely was both). Is it rational to believe that preventing all TVs in the development will help prevent children from being exposed to modern culture? Of course. Is it the best way to deal with the problem? Probably not. But unless you have a test different from Nahrstedt, that doesn’t matter.

Rev. Prob. 2D: Professor’s 2018 Comments: Possibly Forthcoming

Rev. Prob. 2D: Best Student Answers: The first model is very strong. It contains thoughtful rules in both the majority and dissent with good points defending them, and contains the best explanation I saw of why the TV ban might be against public policy. The second model contains a lot of smart arguments although its structure was not as clear as it might have been, so I added in some headings for clarity. The third model has strong discussions in the majority and dissent about whether deference to by-law changes is a good idea. It is a little thinner on the application to the facts than the others.

Student Answer #1: Majority: Our legislature is quiet clear in the standards that should be used when assessing covenants properly recorded as part of the declaration of a common interest community. The legislature has not enacted statutes as to how by-laws and amendments to a declaration should be reviewed. There is no caselaw either interpreting this issue or reviewing the by-laws of a community’s declaration. Because of this we grant cert and this is a case of first impression.

The question is how to view by-laws. Residents move into this community knowing that further restrictions can be placed on their lives. They know that with a 2/3 vote of the residents further by-laws can be implemented. The fact that the restrictions might require one to waive constitutional rights is not as issue; we waive rights all the time. We waive rights when we agree not to have a jury trial or testify against ourselves; merely because rights guaranteed by the constitution might be waived does not invalidate this by-law. Only in severe cases, such as Shelley v. Kraemer does the state get involved in private contracts. The legislature has not adopted a statutory list of protected activities. Despite the possible important of not allowing people to waive certain rights (such as Florida has done in not allowing CCR’s to restrict the flying of the American Flag) the legislature has spoken and we have heard them clearly.

For a CCR to be unreasonable, it has to be against public policy or arbitrary in that it has no rational relationship to protection, preservation, operation or purpose of protected land. We hold that by-laws to CCR’s should be held to the same standard as the original CCR with two important caveats:

(1) Supermajorities are necessary. When people move into these communities with CCRs they have clear notice of the restrictions placed on them by the communities. They have the list of things they can and cannot do. By-laws are a problem because they force new restrictions on people AFTER they have moved into their home. We are very wary of interfering in the lives of people in their home. On the other hand people who move into CCR’s know that besides the current restrictions placed on them, if the by-laws allow it, there can be more restrictions placed on them. Supermajorities (2/3 or ¾) are necessary here because while we want communities to be allowed to amend CCR as time changes, we do not want CCRs to be used to oppress minorities in communities.

(2) The changes need to be consistent with the original purpose of the community. If this community banned blue sneakers, something that appears inconsistent with the purpose of the community, they would have to show the relationship. If there is a rational relation to the purpose of the community as layed on the CCR we will enforce the by-law if the super majority of the community passes it.

When looking at CCRs, we need to balance the right of the community to make decisions and individuals sometimes have to abide by those decisions. Cases like Belle Terre, Euclid, Stoyanoff show us that sometimes the community is more important than the individual. We have consistently held that proper restrictions can be placed on individual choice. Stoyanoff restricted someone’s right to build their dream home, while Belle Terre restricted who people can live with. These restrictions are everywhere and there is nothing wrong with people agreeing to live in more restrictive communities. Courts have consistently rejected the position that property owners have the right to use their property as they wish without having to look out for the interests of others. In nuisance cases, we in Confusion use the 2nd restatement test: if you cause serious harm, despite providing greater utility you have to pay damages.

There are other policy interests furthered by enforcing by-law changes and giving deference to them. In communities with CCRs, residents are not normal neighbors: they are in a contractual relation to further a common purpose. In these communities, the neighbors have special responsibilities. In these communities, we must enforce the policy of sic utere tuo ut alienum non laedas - property owners have the right not to have their property interests harmed by others. By joining a community with CCRs, the person gave up the right to individualism—the right to look out for only his own property. In a community with a CCR the golden rule is more appropriate—it is normally wrong for property owners to use property in a way that harms other property.

In using the standard that by-law changes passed by a supermajority are valid if it not against public policy and rationally related to the purpose of community, we find the by-law here legal. Not watching television is not against public policy. With the soundbite news stories and lowering of quality there is no general public policy to watch TV. There are many avenues one get to receive information about the world and current events (for a restriction on current events would be against public policy). The residents can still read newpapers or, if they have a need for immediate information, the interenet is a great source of information that far surpasses television in terms of amount, quality and availability of information.

The second question is: Is the ban on television related to the purpose of the community—“a place where parents can raise their children assured of competent schooling away from the corruption of modern culture”? Banning television is clearly consistent with raising children away from modern culture. TV is one of the single biggest places to get ‘modern’ culture. Banning television allows parents to better monitor the information that their children get. They can control their culture by taking children to certain movies or giving them certain books.

Since Erik bought into the community knowing that the purpose of community could be written into specific by-laws to further enhance the purpose of the community, he cannot now complain that he does not like the restrictions. Though the burden on him might very well be greater than the benefit, that is not the standard we are using in assessing the situation. As for Lauren, though she has no children, the by-law and CCR run with the land and she is in privity and has notice so it is enforceable against her

Dissent: We disagree with the standard chosen by our colleagues for reviewing by-laws. We feel that by-law changes to a CCR cannot be enforced against current residents in the apartment if they oppose them. Residents opposed to by-law changes should be grandfathered in; once they sell their house, the by-law will be enforced against the new tenant. People move into CCR knowing the exact restrictions that will be placed on them by the CCR. They know what they can and cannot do. Placing new restrictions on them, even when in accordance with the purpose of the community, is wrong as against notions of freedom.

The majority also got the public policy discussion wrong. Banning television is against public policy. TV is the only forum where the whole nation is one community. When there are presidential debates, it is our responsibility to watch and make judgements. Reading about it in the paper the next day is not the same; we are getting a filtered view of the world. Banning TV cuts the community off from the world is too many important ways. We can’t have isolation if we are to develop. We need to allow people to watch TV. TV has many educational and informative programs that are not modern culture but educational experiences.

Student Answer #2: Majority: The appropriate standard of judicial review of a modification by vote of a homeowners’ association set of rules and bylaws is (should be) fairly strict: that is, enforceable by the courts only if the new rules (a) meet the traditional requirements of Equitable Servitudes law (“notice;” “touch and concern”) and (b) are “substantially related to an important, legitimate interest of the community members. In devising this standard I explicitly make analogy to “mid-level” constitutional review and add traditional E. S. principles. This is a different approach than that taken with the rules present in the original recorded common plan, for reasons I will discuss. Although here, the owners have voted to enact the new rule, several arguments compel that it not be enforced, and that T.V. be therefore allowed within the townhouses.

[Justifications for Strict Review]

1) Property rights serve human values. Shack. To the extent that they impinge on higher principles, such as constitutional guarantees and the concept of ordered liberty, they are “trumped”. Here, there is a notice issue. Although those buyng town houses were on notice as to various restrictions on use as recorded by the original developer, and even on notice that they can be changed by vote, they were not on notice as to the Draconian nature of the agreed-upon rule. This lack of notice compels us to give a higher level of scrutiny to newly enacted rules as compared to restrictions recorded by the developer.

2) Shelley v. Kramer issues. Note that in order for the HA to enforce their rule, unless they use self-help or extra legal sanctions they will have to turn to the state to actually enforce the rule. Shelley v. Kramer, if interpreted broadly means that state enforcement of a private transaction is state action in the Constitutional sense, and subject to all statutory and constitutional limitations which apply to any state action. Shelley v. Kramer (Harvard Law review note, p.272) tells us that the state is a partner in a sense, in all private agreements which are enforced by the court. Therefore the court has a duty to give these agreements fair scrutiny.

3) Consent theory and critique (Course materials p.272). Although in a sense, the HA landowners consented through purchase to the possibility that the covenants were modifiable by vote, consent has boundaries. One cannot consent to slavery and cannot sign fundamental sights away. Could the HA vote periods of physical incarceration for members who break the rules? Such a result would be absurd, but the only way this could be prevented is if courts have a strict standard of review for votes on changes to HA agreements

4) Due Process Issues: Rules which have great impact on our lives should only be applied if due process is applied. Here, a vote has had a major effect on the lives of all (members have compelling need of the to T.V. to earn a living, and make contact with outside world) with no prospect of appeal.

5) Validity of Private Goverment. The HA purpose is to set up something like a complete foreign government within our borders, complete with a core set of beliefs, its own school, tax system, constitution and laws. It is important to realize that such small enclaves are still subject to the laws of their state and country. Although this case seems a minimally obnoxious act by the HA, we can envision, as in the law review note (p.771) illiberal communities becoming a part of American life. In order to check communities with positively malignant characteristics, courts must retain the ability to strike down rules in private communities which harm the citizenry.

[Application of Equitable Servitude Rules]

Touch and Concern: agreement to refrain from act on property classicly “touches and concerns.”

Notice: Explicit language in recorded agreement supports

Intent to Run: requirement met by original developer’s documents.

[Application of Substantially-Related Test]

As applied to these facts here, although the rule might be found to meet the requirements of an equitable servitude, it is not substantially related to an important, legitimate interest of the community members.

(a) “Substantially Related” Here, the rule is not “substantially related” because the HA has not shown that TV watching has any direct effect on stated community goals. The HA cannot argue that they have an interest in keeping their children away from all new things; no doubt their homes use modern constitution materials and techniques, have phones, are electrified, etc. Their goal of keeping children away from “corruption of modern culture” can be better met by controlling the shows that kids do watch. Note that many TV shows encourage old-time values; we need only look at various gardening, cooking, carpentry, music shows to see that this is so. And newspapers, magazines, books and other older forms of communication can corrupt these values as easily as the electronic media. Thus, the rule fails the first prong of the test, for over- and under-inclusiveness.

(b) Important, legitimate objective: Although the interest in the non-corruption of children is important and legitimate, the failure on prong (a) is enough to invalidate the rule.

Dissent: We find the majority opinion today (a) to be a blatant usurping of the legislature’s powers and (b) a violent assault on the property rights of the community owners to decide, for themselves how their land is to be used, in a democratic way.

(a) The legislature has said “properly recorded rules” run “unless unreasonable.” Here, the developer made a valid plan which included a mechanism for amendment. It was properly recorded, including the amendment provision, and an overwhelming majority of owners voted to approve the new rule in the private community.

The legislature has voted, and the executive branch signed, a law which uses the word “reasonable.” We are bound by their words, not ours. Since the declared intent, duly recorded, of the HA is to nurture old-time values, and since many arguments can be made as to how T.V. works against these values, and since banning T.V. is a legal way of preventing the harm, the rule is reasonable and the legislature says it must be enforced. It would be a gross act of judicial activism to say otherwise.

(b) Property Rights Issues: The owner of the land is the best judge of its best and highest use: unless illegal the owners decide what does and doesn’t happen. Here, property is held in common and it is the common owners who decide what will and won’t happen on the property.

Right to Exclude One of the most important rights is the “right to exclude. Loretto. This right is abrogated only under a showing of extreme need. The HA have a right to exclude TV. Those who need or choose to watch TV can go elsewhere.

Constitutional issues: It is generally argued the 1st Amendment gives a right to association. Thus the constitution gave the HA an ability to form a common-interest community. If the members agree that TV is harmful to the point it should be banned, the government cannot say they cannot hold and act on this belief

Rebuttal to the “consent is invalid” argument: Since all a dissenting member has to do to avoid this restriction is to move away, this is hardly a ceding of rights. The simple act of selling restores all rights magically..

Due Process: since the HA by its nature (voting, Board, written rules) is a thoroughly democratic organization with due process, their rules are presumptively “reasonable.”

In sum, the majority opinion displays an unacceptable judicial activist approach, insufficient deference to the legislature and to fundamental rights to use property as the owner sees fit.

Student Answer #3: Majority: The matter before this court is one of first impression. As there is no case law in Confusion relating to what covenants should and should not be enforced by a Homeowners’ Association, we will rely heavily upon California law.

In Nahrstedt, the California Supreme Court considered a matter very much like the one before us today, and ruled that the Homeowner’s Associations should be given deference when the covenant is one that was recorded originally. They came up with a test that says “An equitable servitude will be enforced unless it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction’s beneficial effects that the restriction should not be enforced.”

The equitable servitude in question is “to create a place where parents can raise their children assured of competent schooling away from the corruption of modern culture.” While this is not very explicit in its statement of exactly what will be enforced and what will be considered “modern culture,” it is apparent from the declaration that the main goal of this Common Interest Community was and is to protect and nurture children.

The declaration included mechanisms to decide upon the rules of the community, and to enforce violations when necessary. Because the declaration was filed properly, the subsequent buyers of the townhouses were on record notice that upon a vote of 2/3 of the community, they may have a freedom to taken away that they were previously accustomed to having. While amendments to the declaration and other added restrictions are not given as much deferential treatment by courts in general, one such as this, which goes to the very heart of the community and the expressed interest at stake should be given nearly, if not the same, treatment as a declaration itself.

We make this statement because, after reviewing the declaration and the expressed interests of the community when purchasing the property, it appears as though they were willing to give up certain freedoms in order to live in a place conducive to their children’s moral and healthful upbringing. As modern culture changes and adapts to the world, it is necessary to take certain steps to protect children from its reaches. Ten years ago, it would have been unheard of that, just by getting on a computer, a child could be exposed to so much sex, violence, and immorality. Parents have to be up-to-date on recent changes in order to defend against this. Is it fair to say that a community with this in mind cannot change along with individual parents and society? We think not. The community in question anticipated that they would not be able to make definitive statements and rules in their original declaration, and they did not attempt to do so. They expected that courts would be willing to uphold their express desires, and we are attempting to do so. The only restrictions, as mentioned before, on upholding these declarations are stated in Nahrstedt.

Surely, restricting television is not against public policy. With recent advances in technology, being pushed by consumers, it is now possible to block out violent and sexual programs from a television if a parent so desires. It is ridiculous to say that a parent doesn’t have that right, and, if they do have that right, when a community of people choosing to live under restrictive rules should be able to decide that no television will be allowed. The dissent states that the Florida Condominian Statute expressly demands that condos give access to cable television, but that was passed for entirely different reasons. Namely, that a landowner would disallow cable when everyone wanted it. And also, that the service would be outrageous if they did.

It can certainly not be said that the T.V. ban bears no rational relationship to the purpose of the affected land, because as we discussed before, the purpose of the land is to protect kids, and preventing television does that effectively.

The community has expressed a desire to protect its children. Two-thirds of the community believes that banning television will go toward that goal. The members of the community are evidently extracting great beneficial effects from having that restriction in place. While it may place a burden on the affected parties, going without television can hardly be said to be “so disproportionate to the beneficial effects that the restriction should not be enforced.”

Dissent: By-laws passed after the declaration is filed should not be given nearly as much deference as the declaration itself. While the majority does not address this, the main point of enforcing declarations is so that citizens will knows what they are getting into when they buy into a community and they will not clog up the courts with lots of lawsuits. However, enforcing bylaws past ex post will not have the same effect.

Communities will pass by-laws to their heart’s content if this decision is followed. The majority’s liberal use of the “disproportionate to the restrictions beneficial effects” clause will be exploited. While the public policy argument will ban outright discrimination, this policy will allow other types of arbitrary behavior to go on unchecked.

The Florida statutes regarding Condominiums demands of condominium complex owners that condo owners be allowed to use cable t.v. services free of charge. This is to prevent conduct such as this before us. The legislature should consider passing a statute such as this so that consumers can be protected against this type of arbitrary conduct.

Also, in the future, residents should pass a bill of rights along with their declarations, so that they can be protected against these types of actions. The Bill of Rights suggestion is explained in more detail in the Susan French article. Until then, however, we should not enforce obvious invasions upon landowners’ rights.

6. REVIEW PROBLEM 2E (H55) (NO PRESS: OPINION/DISSENT)

Comments & Models Posted after 3d Written Assignment Submitted

7. REVIEW PROBLEM 2F (H55) (NO UNMARRIED COHABITANTS)

Rev. Prob. 2F: Professor’s Comments: No Comments from Original Exam; 2018 Comments Forthcoming After Class Discussion

Rev. Prob. 2F: Best Student Answers

Student Answer #1: By-law 3-17 raises the issue of how far a Homeowners' Association should be able to go in regulating the conduct of its inhabitants.

Laguna test: In Laguna the court suggested a rational relationship test with two prongs:

(1) Is there a rational relationship to protection and preservation and proper operation of the property? In this case, one could argue there is a rational relationship to the interest that the Homeowners' association is trying to preserve, allowing raising of children in atmosphere of traditional values. The FVHA prob. could pass this test, as long as its behavior is consistent in general with its stated purpose. In Laguna, although it was a rat. rel. test, the court applied it strictly. So it is difficult to predict.

(2) The other prong is fair and non-discriminatory. From Laguna, it is unclear whether this simply means in accordance with the law (i.e., FHA & State) or if it is a more strict test. If it is only compliance with law, then it will be fine for FVHA. However, if the court chooses a stricter test, it is possible the provision could be construed as discriminatory to homosexuals and others.

Nahrstedt Gave a more deferential test toward the Homeowners' Association. The court held it was an okay regulation unless it--

(1) violated public policy--not likely here since public policy usually promotes marriage and abstinence from sex outside of marital relationship (see for example County of Dane v. Norman).

(2) no rational relationship to purpose/oper. of land--probably can pass this since rat. rel. asks "Could they believe there would be a relationship." The purpose of promoting traditional values is probably legitimate.

(3) No disproportional burden--in one way it seems there is no dis. burden because there is notice about it when people enter into the association. On the other hand, like a very hefty regulation, even more so than a pet restriction to restrict living arrangements. Tough call.

Conclusion of legal Analysis: Most likely the courts would find this restriction passes a deferential rat. relationship test. If court applies a more stringent disc. test, or looks more for rel. to actual land or property, then FVHA might not pass muster for by-law 3-H.

Policy: One reason we might want to enforce restriction is because they can probably be changed if maj. of residents want them changed and there are other places to live, most likely. Before making a policy determination, I would want to know whether it is a conservative area where everyone is traditional, a lot of these types of associations. Hard to get housing? What are the provision for changing the rules. Is there fair notice? Also, Susan French would argue that a Bill of Rights could protect the individuals in this situation. Maybe a right to privacy in sexual matters should not be alienable through a homeowners' association.

Student Answer #2: First, does the state have statute making condo by-laws binding? If not, then a real covenant/equitable servitude analysis is necessary. Under this analysis, if the by-law was not properly recorded then subsequent purchasers could not be bound by a real covenant, which is an interest in land. There is intent to bind, and notice and also privity, but does the by-law touch and concern? Big problem, since does not seem connected with land, as opposed to people. Under the Bigelow/Clark test, it is arguable that the community land is made more valuable, but then is the individual unmarried person's home made less valuable? This seems contradictory. The Third Restatement eliminates touch and concern, and instead focuses on unreasonable restraint against alienation and public policy, which analysis dovetails with that for a binding by-law under a state regulation.

Assuming state has regulation, then Laguna test asks whether the restriction is rationally related to the preservation and proper operation of the property. The purpose does not help much, because it is unclear how traditional values equals proper operation. How will the sexual relation be known except through eavesdropping? Will children find out? Does by-law in fact forbid any two unmarried people from living together? Too restrictive. Also under Laguna, the by-law must be fair and non-discriminatory. Does this mean mere compliance with fair housing law, which is okay, or something more? What about the right to free association? The Nahrstedt test raises similar concerns: 1. Violation of public policy? 2. rational relation? 3. no disproportionate burden?

The answer to the question will seem to turn on whether courts want to strike down a "little illiberal government." The article, Rule of Law in Residential Association, gives support to a court wanting to find a violation of public policy. In the first instance, the "enforceability" of the by-law with regular constant surveillance of every home. This would not be allowed. The by-law requires the sacrifice of too many constitutional rights, and is wholly unworkable. It will not be enforceable as written.

7. REVIEW PROBLEM 2G (H56) (LAWYERING: SIGN ON CAR)

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Some Prof’s Comments May Follow Class Discussion

7. REVIEW PROBLEM 2H (H56) (POLICY Qs)

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See 9/17 Slides For Ideas about 2H(1)

Feedback on 2H(2) after Submission

8. REVIEW PROBLEM 2I (H56)

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Feedback after Submission

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[1] (1) Not against public policy; (2) rationally related to protection, preservation, operation or purpose of affected land; and (3) harm not greatly disproportionate to any benefits to the community.

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