Real Estate & Property Law

The Right to Exclude Others From Gated Communities

By rht

The Garden Island reports that the Kauai County Council is considering a ban on "gated communities" --

A stalled plan to ban gated communities should return to County Council?s agenda by the end of February, Mayor Bryan Baptiste said yesterday. 
   
?It?s not a public safety issue to me,? he said. ?It?s so we don?t isolate ourselves from each other."

All I can say about the issue is, what about the right to exclude others?  This may be the most fundamental "stick" in the bundle of rights known as property, and can't be taken away by regulation, no matter how well-intentioned the proposal may be.  After all, if you can't keep others off your property, what have you got left?  According to the U.S. Supreme Court, nothing (except perhaps a per se regulatory takings claim).  As the Court held in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987):

We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). In Loretto we observed that where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others, see 458 U.S., at 432 - 433, n.9, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public [483 U.S. 825, 832] benefit or has only minimal economic impact on the owner," id., at 434-435. We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.

This concept isn't anything new.  My Damon Key partners Charlie Bocken and Diane Hastert argued and won the Kaiser Aetna case in the U.S. Supreme Court, and Diane and I prevailed on the same issue in a follow-up Ninth Circuit case, Boone v. United States, 944 F.2d 1489 (9th Cir. 1991).  We also secured the right to just compensation in the Court of Federal Claims for a taking of the right to exclude in Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999). 

Full post as published by inversecondemnation on February 09, 2008 (boomark / email).