Document Type

Article

Publication Date

2024

Abstract

The United States is currently suffering a pervasive and unsettling shortage of housing and increased housing unaffordability. Rents are at an all-time high, which has a disproportionate impact on people of color and people earning lower incomes as they are more likely to rent rather than owns their homes. Moreover, people solidly in the middle class are finding it increasingly difficult to purchase residences within their budgets.

Critics have identified “single-family zoning”—allowing only one single-family home per lot--as a major cause of housing supply and affordability problems. In response, a handful of states and cities have recently passed legislation that voids or limits this zoning by allowing small-scale multifamily units. Proponents claim that the increased density will help address shortages, lack of affordability, and racial and social exclusion.

Properties under single-family zoning may also be subject to private covenants that limit density of land use with substantive restrictions similar to those imposed by zoning. Thus, unless existing private anti-density restrictions are also removed or limited, they will still bar multi-family development even though zoning has been relaxed.

After analyzing Takings arguments against voiding existing single-family covenants, this article suggests and explores a different approach. Existing single-family covenants can be voided under a longstanding doctrine that bars enforcement of covenants violating public policy. The article explores how and why the doctrine remains viable and provides the public policy basis for application to single-family covenants. It also argues that a voided covenant is not “property” requiring Fifth Amendment compensation. Thus, these covenants can be removed by government, most likely by legislation, without draining the public purse.

Comments

Missouri Law Review, Vol. 89, Issue 1 (Winter 2024), pp. 1-58

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