The Publicness of Private Land Use Controls

Abstract

Real burdens, or land-use “servitudes” as they are called in the United States, are usually thought of as strictly private legal devices. Yet in many countries, including the United States, they serve public functions. They are used to constitute residential community associations. These institutions differ from traditional civil society institutions in that they are designed to provide public goods in much the same way as cities do. Generally, they allocate public goods more efficiently than do local governments, which are unable to respond to differences in preferences for various goods and services within given political boundaries. At the same time, however, the very fact that residential community associations perform many of the same public functions as municipalities creates certain tensions between these associations and the neighbouring municipalities. A fair and equitable resolution of these tensions requires that residential community associations be characterised as quasi-public for the purpose of legal regulation. To date, that view has been impeded by the fact that they are created through private land-use controls. For residential community associations to fulfill their potential to reinvigorate both civil society and the public sphere, they must be viewed for legal purposes as quasi-public, owing certain obligations to the society outside their boundaries.