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Private Property Protection

Policy

Community Associations Institute (CAI) supports protections that enable property owners to challenge governmental taking of common or private property. CAI opposes legislative or judicial actions that would limit or restrict the ability and rights of community associations to maintain control over association common property.

Background

The Fifth Amendment of the United States Constitution is applicable to the states through the Fourteenth Amendment. The Takings Clause of the Fifth Amendment states, "Nor shall private property be taken for public use, without just compensation." Protection of private property rights embodies an essential part of our constitutional form of government.

The U.S. Supreme Court has addressed the issue of the Takings Clause of the Fifth Amendment of the U.S. Constitution through several court cases by proclaiming a two-part test. The test’s first prong is when a court must determine whether a governmental regulation substantially advances a legitimate state interest. The second prong is where a court must determine whether the government regulation has deprived the property owner of all economically viable use of his property. The Supreme Court has adopted and urges the use of this test when determining cases of private property protection.

RECOMMENDATION

CAI recognizes the need for property owners and community associations to rely on the standard handed down by the Supreme Court in private property disputes. CAI opposes legislative and judicial actions that would limit or restrict community associations’ right or ability to maintain control over association common property. Legislative Action Committees, when involved, are encouraged to communicate with CAI’s Government and Public Affairs department and legal counsel to protect private property interests.

policy history

Adopted by the Board of Trustees, October 25, 1997

Approved by the Government & Public Affairs Committee, October 17, 2001

Approved by the Board of Trustees, May 3, 2002

Approved by the Government & Public Affairs Committee, September 20, 2011

Adopted by the Board of Trustees, October 13, 2011

 

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