A coalition of law professors including property law scholars Richard Epstein, James Ely, and Ilya Somin, along with the Cato Institute have filed an amicus brief supporting the cert petition in Mariner's Cove Townhomes Ass'n v. United States, No. 12-1453 (cert. petition filed June 12, 2013).
That's the case in which the Fifth Circuit held that the association's right to collect maintenance fees, recognized as property under Louisiana law, was not "compensable property" in an eminent domain action. In United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), the court held concluded that the "consequential loss rule" governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.
The Cato/lawprofs' brief argues:
By adopting the minority view in the split among the circuits and the States, the Fifth Circuit’s holding undermines the growing practice by which more than sixty million Americans now share property rights through covenantal arrangements like those that were taken from the Mariner’s Cove Townhomes Association.Membership in a community association has, over the last 30 years, become a common feature of home ownership in the Nation. More and more citizens choose to enter into these property-rights-sharing arrangements because they provide substantial benefits. They likewise benefit local governments, which increasingly rely on such associations to shoulder the responsibility for, and fiscal burden of, providing and maintaining infrastructure, utilities, and other services that are traditionally provided by the government. By shifting a greater burden for paying for such services to the remaining members of the association without compensation, the Government’s taking here presents a textbook case of "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Ark. Game & Fish Com'n v. United States, 568 U.S. ___, 133 S. Ct. 511, 518 (2012) (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).
Br. at 2-3. More to follow.