Homeownership provides owners with certain property
rights and a sense of security. One of the most important
property rights is the Takings Clause of the U.S. Constitution,
which prohibits the government from taking private property
without just compensation. The Clause has been incorporated
against the states and is interpreted as prohibiting any taking
that does not serve a public use. Despite these constitutional
protections, numerous condominium owners face the threat of
private investors taking their units for no public use, without
just compensation, and without the owners’ consent.
Many state condominium laws allow private investors who
obtain a specified percentage of a condominium’s units to force
the minority unit owners to sell their units. Although the U.S.
Supreme Court has written many opinions interpreting the
Takings Clause, the Court has not addressed whether states
may permit the forcible transfer of condominiums—or other
forms of common-interest homeownership—without the
unanimous consent of the owners. Although takings for
economic development are permitted, no scholarship has
considered whether the Court’s reasoning behind its rejection of
the “bitter with the sweet” doctrine can be applied to the Court’s
Takings Clause analysis to prohibit states from statutorily
conditioning condominium ownership upon waiver of
constitutional protections. This Note suggests that the Georgia
Condominium Act—and other state condominium termination
statutes—may unconstitutionally permit investors to effectuate
private takings by forcing dissenting minority owners to sell
their fee simple interests in their units.
"The Georgia Condominium Act’s Authorization of Private Takings: Revisiting Kelo and “Bitter with the Sweet”,"
Georgia Law Review: Vol. 55:
1, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol55/iss1/8