I am one of the amicus curiae, along with Richard Epstein, James W. Ely, Donald Kochan, Adam Mossoff, and Ilya Somin, in an amicus brief urging the Supreme Court to hear Mariner’s Cove Townhomes Association v. United States. The case is about whether the right that a homeowner’s association has to collect dues is a compensable right in a government taking. The U.S. Court of Appeals for the Fifth Circuit held that “the right to collect assessments, or real covenants generally” is not a compensable right under the Takings clause. The brief, consistent with many lower court rulings, argues that it is a compensable right. The case is important as Ilya Shapiro and Trevor Burrus explain:
The U.S. housing market has seen a major shift in the past 30 years: the rise of the community association. In 1970, only 1 percent of U.S. homes were community association members; today, more than half of new housing is subject to association membership, including condominium buildings.
…Such associations often shoulder the burden of providing and maintaining infrastructure, services, and utilities, which allows for more diverse and customizable amenities for homeowners than if those decisions were left with remote municipal governments. Because of these benefits, and because they increase the tax base, local governments are increasingly requiring developers to structure developments as community associations.
…The perverse implications of the Fifth Circuit’s ruling are clear: it would allow for local governments to require the creation of a community association, benefit from the resulting private delivery of services while collecting taxes from its members, and later take the property without even paying back the very fees that enabled the government’s benefit.
…The ruling also clashes with the Supreme Court’s recent decision in Koontz v. St. John’s River Water Management District: that an income stream from real property is a compensable interest under the Fifth Amendment. For these reasons, we urge the Supreme Court to take the case and to recognize the compensable property rights of the Mariner’s Cove Townhomes Association and the millions of other Americans choosing—and paying—to live in a community association.