Private government
Suburban developments give homeowners the opportunity to pick and choose the lifestyle they wish to pursue. Rules regarding all manner of issues can be put into place, from fences, trees, building styles and construction materials, right down to whether you can hang out your laundry or park an RV in front of your house. Obviously, potential buyers should review these rules carefully, to assure that the rules reflect their values. Generally, these rules are contained in a document containing a series of restrictive covenants. The covenants are “annexed” to the deeds on the lots of the subdivision, meaning that they will stay with the lots from their creation forward.
The deal is, if you do not like the rules, don’t buy the property. However, either because people do not pay attention to these rules, or because they do not think people will enforce them, there is an endless series of disputes in court between those seeking enforcement of the covenants and those who are violating them.
With a basic set of restrictive covenants, it is the neighbors in the development who have standing to take a violator to court, seeking enforcement of the rules. Generally,though, the covenants will create a homeowners association and empower the association to bring action to enforce the rule. These associations can be basically unfunded volunteer cores, or firmly established organizations with employees, duties and powers, security functions, and the right to a user fee, paid by the lot holders in the development.
The result is a form of private government. In fact, in some communities, the homeowners associations provide so much of the basic infrastructure for the neighborhoods that there is little need for an extensive local government. This is why you find part-time governments in communities with more than a hundred thousand people living in them, while in traditional urban settings, a town of forty thousand takes a huge city government to function.
Unlike public governance, with homeowners associations, if you do not like the laws, again, you should not move in. With public government, all you can do is cast your vote and hope that enough people agree with you to fix the problem. This “vote with your feet” or vote with your mortgage system seems to fit modern Americans better than the traditional “social contract” that supports local governments. But not everyone is happy, and some states have undertaken to reign in these private governments.
Marcia Oddi of the Indiana Law Blog has had some good coverage of these issues and has a nice summary of recent developments up now.
