Here's the amicus brief of Atlantic Legal Foundation which urges the Supreme Court to review the Fifth Circuit's decision in United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 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. 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 Association filed a cert petition and was supported by several lawprofs.
ALF's amicus brief argues:
The decision of the Fifth Circuit below raises the question whether the Takings Clause requires the government to compensate private parties for the lost value of real covenants associated with land it condemns. In Louisiana, and in many states, such real covenant rights are "intimately and inherently involved with the land and therefore binding [upon] subsequent owners" and thus compensable if taken by eminent domain. United States v. 0.073 Acres of Land, More or Less, Situate Parishes of Orleans and Jefferson, La.,705 F.3d 540, 546 n.4 (5th Cir. 2013); see also Adaman Mut. Water Co. v. United States, 278 F.2d 842, 849 (9th Cir. 1960).
This issue is particularly important for homeowners associations which depend on fees or dues paid by owners of individual units into a common fund used to defray the costs of providing services to the community, such as water, waste water treatment and disposal, maintenance of streets and roads, landscaping, and security. These are functions often provided by local governments, and, when borne by homeowners associations, local governments are relieved of those costs. If the Fifth Circuit’s holding stands, homeowners associations will no longer be able to rely on such dues and fees if part of the development is taken by eminent domain, and the full burden of providing those services will fall upon the remaining non-expropriated households, thus jeopardizing the community’s ability to provide those services.
Br. at 3-4. More here, from ALF's site.
Follow along on the Court's docket here.
Brief Amicus Curiae of Atlantic Legal Foundation in Support of Petitioner, Mariner's Cove Townhomes Ass'n,...
