COMMUNITY BY COVENANT, PROCESS, AND DESIGN: COHOUSING AND THE CONTEMPORARY COMMON INTEREST COMMUNITY

MARK FENSTER[*]

Copyright © 1999 Journal of Land Use & Environmental Law

I. INTRODUCTION

It seems to me that cohousing is a means for people to make a major step toward community without giving up their privacy, or control over their personal lives.[1]

Though it requires more work, residents at Pioneer Valley [Cohousing] seem to enjoy controlling things where they live. "We run this whole place," Ms. Doyama said, hanging wet clothes next to her neighbors' on a community clothesline. "Nobody is telling us what to do. It's a sense of camaraderie, like we're all in this together."[2]

The common interest community (CIC)[3] is a type of private housing project organized within an association created by either statute or covenants running with the land, whose membership consists of holders of units in the development.[4] It is a central tool of private, commercial housing development, with approximately 205,000 CIC's comprising the residences of forty million Americans in 1998.[5] This prominence has led to the development of a large body of common and statutory law,[6] as well as extensive commentary by advocates and critics who provide vastly different accounts of the social, political, and legal effects of the form. Proponents celebrate the private community by covenant that the CIC form offers, while critics decry the purportedly anti-democratic and coercive effects that the CIC imposes on both its members and on society.[7]

This paper focuses on cohousing, an emerging, small-scale type of residential housing development that illuminates both the theoretical and doctrinal issues in the debates over the CIC. Increasingly popular,[8] cohousing developments are initiated, developed, and managed by residents (occasionally with the assistance of a commercial developer).[9] Cohousing adapts the legal forms of the CIC to a more intensive, deliberative democracy and explicitly strives for a sense of community by neighborhood. With privately owned, individual residences constructed around an extensive "common house" that includes shared cooking, dining, and childcare facilities, cohousing employs participatory management through collective, consensus decision-making.[10]

Cohousing's organizing principle, which operates in residents' active participation in the project's design, development process, and the group's governance, is to resolve competing desires for the inclusivity of community and the exclusivity of privacy. The community serves as the notion of a greater collective "we" that can be invoked while hanging wet clothes on a common line and represents an ongoing goal, something towards which cohousing enables its participants to "make a major step." Privacy, in terms of control over an individual's or family's "private life," as well as a community's collective control over the use of its land, represents the core of selfhood that is continually under threat by the demands of agents external to both the self and to the group, with which the individual most closely identifies.[11] Neither an inclusive public community nor an exclusive privacy is essentially privileged in cohousing. The cohousing movement explicitly attempts to reject the classic isolationism and ideological homogeneity of the American commune,[12] the single family home's private enclave located within wasteful suburban sprawl,[13] and the middle class urban neighborhood that is only drawn together through shared fear of crime and random violence.[14] Cohousing posits a crisis narrative in contemporary housing based upon "[d]ramatic demographic and economic changes" that render "[t]raditional forms of housing" powerless to create and protect those parts of life "that people once took for granted—family, community, a sense of belonging."[15]

Property relations are one important way cohousing attempts to resolve the public-inclusivity/private-exclusivity conflict it identifies. This Article focuses on those moments in the process of cohousing development in which members seek to define their property rights through legal documents, including the founding documents of the group's initial incorporation, formal declarations of organizational form and property rights and restrictions, and bylaws that govern enforcement of these rights and restrictions. Working from the assumption that the creation of a set of covenants is a socially symbolic act that signals to others "a basis of association,"[16] the Article describes and analyzes cohousing groups' attempts in founding legal documents to resolve conflicts between the vision of the private common property of cohousing, and the accepted legal concepts of real property law, particularly those developed for CICs, within which the groups work.[17] In doing so, cohousing works from the assumption that the public/private dyad is equivalent to a commons/property dyad. By articulating a notion of recuperative synthesis in its legal agreements - community achieved through a private, enclosed public sphere and privacy achieved through a complex bundle of individual and common property rights - cohousing can both create a public community and protect private property. The fully realized property rights of cohousing should encompass what CIC proponents celebrate, the creation of community through contract and property ownership, while it overcomes what CIC critics condemn, alienation from public life and exclusion of outsiders through the creation of anti-democratic, gated communities.

This Article argues, however, that cohousing has not overcome the alienating, older models of property relations through the creation of new legal forms specific to cohousing. Instead, cohousing has proceeded by sometimes adopting, and often adapting, the already existing legal forms of the CIC. Due to the widespread acceptance of these established forms by the disciplinary, regulatory regimes of lending institutions, the common law, and state statutes,[18] cohousing developments have tailored their visions of a new community to the conventions of the widely accepted, decidedly conventional community association, consequently reconfiguring and recreating the CIC as a more participatory neighborhood and democracy.[19]

Part I presents a general introduction to the design, composition, and development process of cohousing. Part II explains some of the legal issues that cohousing groups face, and the knowledge and perspectives of law that they circulate among themselves through periodicals, books, and the Internet. Part III presents case studies of the production of legal documents in three different cohousing groups. It focuses on three issues: first, how cohousing groups plan legal documents and non-binding agreements when the rights of individual property owners may conflict with the desire or needs of the community, or the desires of the community might conflict with the legal/financial regulatory system of private residential housing development; second, restrictions on the alienation or leasing of a unit, where sellers' interests in maximizing the price of their property may conflict with the group's concerns about the community's composition; and third, processes of community decision-making and dispute resolution, where concerns with communitarian values may conflict with decisional efficiency. Part IV relates cohousing and its legal forms and processes to the debate over CICs, and evaluates cohousing's attempt to develop intensive common property for its residents as a potential model for low-income housing. In addition, Part IV considers the implications of cohousing for understanding the relationship between community, selfhood, and property that are central to the debates surrounding CICs.

II. COMMUNITY BY DESIGN

Originating in Denmark in the 1970s,[20] the cohousing concept was introduced in the United States in 1988 by architects Kathryn McCamant and Charles Durrett through their influential book and presentations on cohousing.[21] Cohousing's design exemplifies the "romantic resurgence" in contemporary architecture that combines nostalgia for an ideal notion of the simple, meaningful, and authentic historical town with modern concepts of progress and modernity, and an increased standard of living.[22] American cohousing has emerged as a viable alternative to the CIC form, which is a mixture of private and common property that is financed, organized, and designed by private developers, sold to individual homeowners with covenants that run with the land, and overseen by a private govern ment.[23] The CIC form itself is the result of a hybrid of utopian ideas about community, a desire for privacy through private property, and a concern with the maintenance of property values.[24] It is the culmination of the movement from early twentieth century "garden cities," through post-war suburbs created by "community builders," and, during the 1960s and 1970s, "new towns" like Columbia, Maryland and Reston, Virginia, to the concurrent boom in condominium building and the rapid expansion of common interest developments in the last two decades.[25]

Proponents stress the design of cohousing's "physical environment" as integral to the support of community ties through the encouragement of social contact.[26] The placement of houses within a site varies widely among groups[27] with some communities, like Muir Commons in Davis, California, utilizing attached townhouse-type units,[28] while others, like Southside Park in Sacramento, California, include detached houses.[29] Regardless of whether individual units are attached, most cohousing sites cluster individual residences more closely than do most CICs. Clustering offers social advantages by increasing human interaction,[30] environmental advantages by minimizing human development on the land and protecting open space, and economic advantages by reducing the infrastructure costs of developing the property and through shared walls, further reducing building costs as well as costs of heating.[31] Nonetheless, cohousing properties are typically more expensive than similarly sized and equipped individual houses,[32] although savings from the energy efficiency of units and the sharing of amenities and equipment with the community may balance the added cost over time.[33]

As the nucleus of community activity, the common house is typically centrally positioned on the property, so residents walk past it frequently and can see it from their individual units.[34] Common houses generally include a large kitchen and dining hall for common meals, a children's playroom, bulletin boards for community announcements, laundry facilities, a meeting room, a lounge, and a craft workshop.[35] Therefore, they provide not only extra rooms that are either left out of or reduced in size in the individual dwellings, but also facilities that will attract activities shared by the entire community. Unlike the clubhouse or community room of the condominium or community association, the common house in cohousing is designed to be open and accessible to all members of the community at all times for a variety of participatory activities.[36]

III. FORMATION AND DEVELOPMENT PROCESSES

While cohousing's design is central to its purpose of cultivating interactions within a development, the processes of group formation and project development are the initial stages of cohousing community building. Residents initiate a vast majority of cohousing projects and play integral roles in every stage of their development. They break down the conventional division in the development process of residential housing projects between developer-producer and homeowner-consumer and work collectively to create both common and individual property.

A. Initial Group Formation

The movement towards cohousing development begins with the organization of a group of interested individuals. Groups form in numerous ways, typically beginning with a core group of enthusias tic leaders who recruit new members through organizational meet ings that they advertise in local business and media outlets.[37] The leadership role assumed by one person or a few individuals is often crucial to the successful completion of a cohousing project.[38] As the group moves forward in the development and design processes described below, group membership may change as households drop out or enter.[39] Occasionally, continual frustration over the progress of development may lead an entire group to disband.[40]

From their beginnings as a collaborative enterprise, most co housing groups utilize a consensus decision-making process.[41] This requires that a meeting "facilitator" draw an open-ended discussion of an issue towards an end by stating a proposal that summarizes the group's preferences.[42] The group then discusses the concerns that individual members raise about the proposal and amends the proposal until the entire group reaches consensus.[43] Cohousing groups often use a somewhat complex system of hand or colored card signals to demonstrate degrees of agreement and disagreement with the discussion or to request the floor.[44] Members who dissent from the consensus that emerges may either step aside from the process (which then moves forward without them) or block the group.[45] Most cohousing groups include a modification from "pure" consensus within their decision-making process by allowing groups to "fall-back" to majority or super-majority voting if consensus cannot be reached on particular issues or over a specified period of time.[46] While the consensus process takes as much as a third longer to reach a decision than a majority voting process, proponents assert that it results in better solutions to problems, greater commitment to the implementation of the group's solutions, and more effective conflict resolution.[47]

In all, cohousing's processes of resident development and self-governance sacrifice the efficiency that comes from delegating responsibility of property management and maintenance for an ideal of procedural and substantive democracy that both encourages and demands the participation of members.[48]

B. Development Process (1): Project Development

Once a group forms and begins to meet regularly, it creates an initial, relatively open-ended but formal organizing agreement that establishes a purpose, delineates qualifications and financial obligations (if any) for membership, and lays out general meeting and decision-making procedures.[49] As the group grows, it becomes more financially committed to creating the development. The group attempts to find a site and contributes to an initial pool of money to secure the land.[50] This step can often be time consuming, as it re quires group agreement to a general geographic location and a particular parcel of land to be purchased.[51] Most groups attempt to sell or rent all of the units before completion of the project to spread the financial costs and risks of development to as many parties as possible.[52]

Upon securing a site, a group must successfully move its project through the demands and processes of local land use bureaucracies.[53] Neighbors to a proposed site often raise objections and occasionally form coordinated resistance to the necessary approvals from local governments.[54] In Brunswick, Maine, for example, neighbors were concerned that the Cumberland County Cohousing Commu-nity would spoil the rural character of their neighborhood and were suspicious about the "type of people" who would move into the project.[55] After the cohousing group received the necessary approvals from the town planning board for its twenty-seven unit development, approximately one hundred neighbors signed a petition to block future large developments in the area by making zoning more restrictive.[56] Similarly, a condominium developer in Delray Beach, Florida organized local opposition to the Synergy Cohousing group, fearing an invasion of a "commune" into the community and because the project had a density of ten units per acre.[57] Successful cohousing groups have persuaded local governments and opposing neighbors by lobbying and providing testimony of cohousing experts at government and community meetings. Groups also attempt to assure local citizens that the development's residents will be "respectable citizens with worthy intentions."[58]

In all, the entire development process, from initial group formation through the end of construction, can last between two and eight years.[59] For example, members of the Blueberry Hill group in Vienna, Virginia, who planned to move into their community last year, first began making payments toward securing their site in 1994.[60] In the first stage of the group's planning process interested members paid a $100 fee to participate in regular meetings. Once plans became more definite, they paid $5,000 toward their individual residences and common land.[61] When enough members made the requisite financial contributions, the group began the process of choosing an architect. After zoning for the property was approved, members were required to pay $15,000 over a 21-month period to cover building construction, site work, consultant fees, architectural and engineering costs, legal and county fees, and taxes.[62]

Some cohousing groups hire private developers to alleviate the costs, risks, and work that are required during the early periods of a community's development.[63] Developers typically have valuable expertise that can prove helpful in site location, dealing with local government and land use laws,[64] and securing financing.[65] Yet in such cases, developers do not build the project on their own. Rather, residents shape the project and make the most important decisions in its design and development.[66] Some proponents of using private developers in cohousing have argued that because the "community" life of cohousing is not defined by the process of creating physical structures, but by living within them, using professionals to assist in developing cohousing makes the process of building these communities more efficient and more likely to succeed.[67] In other words, the creation of the physical properties of cohousing is secondary to and detached from the practice of community.

C. Development Process (2): Legal Processes of Cohousing[68]

Cohousing projects typically face a number of legal issues that arise at specific stages in the group's development. A group's requirements for legal documents, predicated upon both its need to organize and its need to interact with external actors (such as realtors, builders, and lending institutions), change between the period in which the group attempts to create the physical form of the cohousing development and when, as one guide describes it, "the [group's] purpose will be to live in community."[69] In order to create the physical form, the group must work together both as a financially viable entity that can manage the complexities of real estate development and as a social organization that can collectively formulate plans and reach decisions. Similarly, in the midst of living "in community," the group must continue to adopt and adapt the arrangements and rules to which they previously agreed, and respond to internal conflicts and external pressures (such as the real estate market or local government) that might require new legal action or a redrafting of existing agreements. This is especially important because cohousing groups depend on the recruitment of strangers to reach the number of households necessary to finance the development and to form the community. Formal and widely accepted legal documentation provide group members mutual reassurance that their investments and rights as future homeowners are protected.[70]

Before the acquisition of property, simple documents that groups initially produce either by themselves or with the assistance of lawyers outline the group's general purpose. These documents also explain the decision-making process, qualifications for new members and provisions for member exit, as well as how the collection and maintenance of funds for the group's operation will be accomplished.[71] They enable groups to require commitment to the project through the signing of legally binding agreements and allow the group to sign contracts and borrow money by gaining the confidence of paid professionals, banks, and realtors through a demonstrable commitment of funds.[72] In addition, most cohousing groups include provisions in these early documents for consensus decision-making.[73]

When a major financial commitment like the purchase of prop erty is imminent, groups generally hire a lawyer to help them incorporate or sign a partnership agreement that will require a substantial commitment of funds and will limit their liability.[74] As this stage will also require a group to finance its land purchase (if possible), obtain a construction loan, and begin arranging separate mortgages for the individual units (or, in the case of a cooperative, a blanket mortgage), the group must also choose the development's specific organizational form.[75] To this end, cohousing groups have adopted and adapted the well-established forms developed by CICs.[76]

As a legal form, the CIC is based upon three elements: associational ownership of common property,[77] deed restrictions that limit the individual owners' uses of their property,[78] and a mandatory homeowners association that administers the property and enforces restrictions on its use.[79] The legal relationships upon which the de velopment and its community association are based are created through servitudes that run with the land and are contained in the contractual agreement between the association's developer and the initial purchasers of units.[80] The vast majority of community associations are condominiums, in which common property is owned by all unit owners, or as homeowners associations, in which individual homeowners within a subdivision become members of the association that is typically a nonprofit, nonstock corporation that owns the common property.[81] A small minority of community associations are organized as cooperatives,[82] in which a cooperative housing corporation owns all of the real property and issues stock and proprietary leases to tenant-stockholders.[83]

To date, most American cohousing groups have chosen to or ganize as condominiums, with a minority organizing as cooperatives and subdivisions with community associations.[84] As one how-to guide for cohousing groups describes, "[c]ondominiums are a common legal structure for Cohousing because they are well defined, allowing groups to control common areas and giving individuals title to units. They have the added advantage of being well understood and accepted by the banking industry."[85]

The document that sets out a condominium's plan of develop ment and ownership, method of operation, and the rights and re sponsibilities of owners is variably called the declaration of the condominium, or the Master Deed, and in homeowner associations, the Declaration of Covenants, Conditions, and Restrictions (the CC&Rs).[86] It is recorded in local land records, is binding upon every person who owns land in the project,[87] is essential to lending institutions in their mortgage approval decisions,[88] and is the document most likely to be reviewed by courts to settle disputes.[89] Accordingly, cohousing experts advise that the declaration should closely follow the relevant jurisdiction's standard forms for the type of organization being created.[90] Most of the agreements and rules specific to a cohousing community should be placed in the by-laws and house rules.[91]

The bylaws are to the declaration what statutes are to a constitution.[92] Bylaws can be more specific to cohousing in general and to the wishes of the group in particular by providing procedures for decision-making and by stipulating binding rules and responsibilities. Except where required by statute, bylaws are private and need not be filed with any public agency.[93] While the bylaws need to be both accessible and stable as rules and provisions that are central to the operation of the group (generally requiring a supermajority or a consensus decision to be changed), they are also more easily amended than the declaration, which plays an important role in the resale of the property and in securing financing.[94]

In some ways, the cooperative form would seem more ideologi cally amenable to cohousing because it combines the common ownership of the land and improvements (including the common house and residential units) with a shareholder ownership interest and proprietary leases for residents. Cooperatives also allow greater control over the sale of the share interest that residents have in their units.[95] However, outside of financial institutions in the few northeastern states that finance cooperative housing, most banks are unfamiliar with cooperatives and are unwilling to finance such pur chases.[96] Furthermore, the Federal National Mortgage Association (FNMA or Fannie Mae), which purchases loans from banks, does not buy co-op loans.[97] Cooperative residents also face joint and several liability for all of the debts of members in the blanket mortgage that the cooperative association takes out.[98] Finally, in some areas co-ops may receive lower appraisals than condominiums because the appraised value may be aligned with rental property.[99]

These additional difficulties in organizing as cooperatives lead most developments to organize as condominiums.[100] Those that do organize cooperatively do so as market rate co-ops that allow members to negotiate the sale price of their shares and transfer the proprietary lease in their units without price controls.[101] No cohousing group to date has organized as a limited equity cooperative, which would provide an even stronger form of restraint on individual property rights by limiting the amount that sellers can demand for their units over their original purchase price.[102] Indeed, the leading cohousing guides advise against the limited equity model.[103]

When construction is complete, groups either supplement or replace some of their previous agreements with the more modifiable documents upon which the homeowners or residents association is based.[104] All CICs provide for the ongoing governance of the property by representative bodies and officials whose powers[105] arise primarily from the servitudes creating the association,[106] as well as from condominium and common interest ownership statutes.[107] If the CIC is incorporated, statutory authority grants power to those corporations.[108] The community's rules formalize and collect in one accessible document, group decisions about such ongoing concerns as limits on pets and work responsibilities for common areas[109] that "tend to be much more fluid and changeable than the bylaws."[110] While the organizational structure and decision-making procedures established in the early legal documents continue to set the framework for the process of dealing with important issues (such as emergency assessments or important disputes between residents), smaller community issues are likely to be addressed in the continually evolving rules written by community members.[111]

D. The Limits to Innovation in the Cohousing Legal Development Process

Published guides on the cohousing legal process often stress that groups should obtain professional representation in drawing up documents and should refrain from creating wholly new or idiosyncratic legal forms. One guide suggests that a cohousing group's Articles of Incorporation be "an absolutely standard document" that "[m]ake[s] sure to observe traditions."[112] The same guide also recommends that for the sake of efficiency, a group should create a "simple, standard" set of bylaws, which is supplemented with a private, internal document establishing the development's more detailed procedures and policies.[113] When phrasing documents, the guide advises groups to "[k]eep things simple. Use English language (as opposed to legalese) agreements if at all possible. And don't re-invent the wheel. Seriously consider modeling your legal structure after someone else's."[114]

Rather than expressing an anti-lawyer populism that tries to avoid the technocratic rules and language of the modern legal document, cohousing's notion of legal simplicity is a pragmatic conservatism arising from "rational" concerns about property values, efficiency and the creation of an accessible, participatory community. Most printed guides warn cohousing groups not to waste their time, and that of their lawyer, creating their own legal documents.[115] One guide gives three reasons "to stay within the . . . 'mainstream' choices" of organizational form: the resale market for individual units, the ability to refinance a mortgage, and the availability of established statutes and common law to help resolve future questions and disputes.[116]

Thus cohousing's general approach to the laws of real property and planned communities is conflicted. In its originating narrative, cohousing perceives property as contributing to the dissolution of community, and cohousing represents a community-enabling solution to the problem of property. Yet the cohousing narrative also depends on, and indeed celebrates, property's ability to create a limited commons,[117] to protect the wealth and privacy of individu als, to establish a binding set of collaborative arrangements for members, and to enable the civilizing and socializing of individuals within the group.[118] Property thus enables the community of cohousing. This conflicted response to property law runs throughout individual cohousing groups' attempts to create legal documents that will "work" (defined in terms of enabling the building of a development) and adequately reflect their desires for "community."

IV. COHOUSING CASE STUDIES

This section describes three cohousing communities, focusing on the ways in which each has attempted to draft agreements that follow established organizational forms while also including two types of provisions that would protect or enable community: limits on alienation and leasing; and specific stipulations as to decision making. The three accounts progress from the community that utilized the most standardized documents to that which for a variety of reasons created the most innovative and restrictive agreements with respect to the rights of individual shareholders.

A. Doyle Street Cohousing

The Doyle Street cohousing project, completed in April 1992[119] as the second newly built cohousing project in the United States, inhabits a converted warehouse in Emeryville, California,[120] a city across the bay from San Francisco and next to Oakland. It was developed by a resident group, none of whom previously knew each other,[121] that included a retired professor and his wife, an attorney raising her child alone, a woman raising her granddaughter alone, and a single professional woman.[122] The group developed Doyle Street with the assistance of two parties: the Cohousing Company, a Berkeley-based consulting group which helped to find the then-abandoned warehouse and aided the residents in their self-organization and decision-making processes, and a private local developer with whom the residents formed a limited partnership and who undertook financial responsibility for the project and oversaw the warehouse's renovation.[123]

Organized as a condominium, Doyle Street's two floors include twelve individual units on two levels that range in size from 780 to 1600 square feet.[124] Common facilities on the first floor (including a kitchen and dining room, children's playroom, laundry, and hot tub) total approximately 2000 square feet.[125] The units include high ceilings that enable sleeping lofts in many of the bedrooms, as well as individualized features like fireplaces and skylights.[126] All of the units' front doors open onto a common patio or terrace.[127] The apartments in Doyle Street, located within one of the most expensive real estate markets in the country, are not inexpensive. The most valuable unit in Doyle Street was recently estimated to be worth $275,000.[128]

Doyle Street faced fairly difficult obstacles in development because of its position as the first urban cohousing development in the United States and its location in both a tight real estate market and one of the most heavily planned and regulated land use regimes in the country. It first had to win approval from the local planning commission. While the process of obtaining approvals from local government is a standard part of the development process for CICs,[129] Doyle Street faced especially strong opposition from neighbors concerned with increased neighborhood density, traffic, and with what was perceived to be the project's inadequate parking facilities.[130] Through a one-month active public campaign members of the group successfully appealed an initial rejection by the city planning commission to the Emeryville City Council.[131]

1. Legal form

An equally important obstacle to the Doyle Street cohousing project was the creation of contractual agreements that would enable the property relations, design, and decision-making elements of cohousing while still satisfying lending institutions at a time when there were no existing cohousing groups in the United States. In meetings with their attorney and developer, group members attempted to develop a set of management documents concerning community participation, the use of common facilities, and the orientation of new households in the community. As part of the mortgage application process, the residents individually submitted the CC&Rs they created to local banks, who in turn submitted them to the FNMA. As Doyle Street's consultants describe the process, Fannie Mae refused to approve the project because it was "too new and untried"[132] and potentially difficult for a bank to resell in the event of a foreclosure.[133] Fannie Mae's rejection effectively barred lenders from selling Doyle Street mortgages on the secondary mortgage market and led banks to withdraw tentative offers of mortgages to group members.[134] In response,

at an emergency group meeting, faced with the possi bility of being unable to finance the purchase of their homes, the residents decided to amend the CC&Rs to make no mention of the cohousing nature of the project. Even the legal name was changed to Doyle Street Condominiums [from the original Doyle Street Cohousing Community Association].[135] While they are free to amend their CC&Rs at any time, at this point, legally, residents have no way to ensure that the project will remain a cohousing community. Although the decision was difficult for the residents, once the changes were made, banks were willing to loan on the project.[136]

By virtue of the banks' unwillingness to lend to a cohousing group that attempted to build the provisions of cohousing into its formal documents, all references to the distinctive characteristics of cohousing had to be stripped from the Doyle Street CC&Rs.

Doyle Street's founding legal documents therefore closely resemble those of the standard condominium. Its articles of incorporation use the generic language of a non-profit condominium management association.[137] The CC&Rs create owners' fee interest in their condominium along with an undivided equal interest in the development's common areas,[138] which includes both the physical rooms and the equipment within them.[139] As established in the Doyle Street declaration, voting rights also follow standard condominium form,[140] reserving for the declarant/developer three votes for each unsold condominium until the total votes of the owners of individual units equaled the total votes of developer, or until the second anniversary of the original issuance of the final public subdivision report for the development.[141] Since the cohousing process attempts to minimize the typical division of the condominium development process between the developer-seller and the resident-consumer, this formal reservation of voting power is typically less important in pre-sold, resident-developed cohousing projects than privately developed CICs. However, in the case of Doyle Street the developer retained voting control because four of the units remained unsold for a time after the initial residents moved in.[142]

2. Restraints on Alienation

The prevailing CC&Rs provide Doyle Street residents with little formal control over the composition of their community in two important ways. First, under the CC&Rs, residents have no power over the process by which owners may rent their unit. Owners need only provide the association with the names of the occupant-renters and with their own addresses and telephone numbers.[143] More importantly, the group retained no right of first refusal or any other restriction on the right of the owners of units to sell.[144]

Despite this, the group has attempted to protect entry into the community by renters and buyers through formal agreements that are separate from the official CC&Rs and bylaws. Through "participation agreements" for owners and renters, original and subsequent residents are urged to make a number of commitments. Buyers are informed that any tenants or buyers are subject to an orientation process and will be required to sign a participation agreement. These new owners will have to commit to playing "an active role" in the community association by participating in the preparation of common meals and contributing to the maintenance and improvement of the property.[145] The renter's agreement recognizes that an occupant must abide by the development's CC&Rs, bylaws, and house rules, as well as share the same active roles and responsibilities in the community owners.[146] The only right that renters do not share with owners is to participate in financial decisions such as the annual budget.[147] On matters "concerning plans or arrangements . . . set up for working, playing or just living together,"[148] renters participate equally in the consensus process, including the power to block consensus or to vote in case consensus breaks down.[149] Thus far, Doyle Street has not experienced any conflicts arising from the active role that renters play in the decision-making process.[150] The agreements are voluntary, although the majority of residents have signed them and their provisions have been followed in every sale and rental so far.[151]

3. Decision-making

On the other hand, the Doyle Street CC&Rs explicitly define a consensus decision-making regime for its condominium association's governance. While the three members of the initial Board of Directors make decisions by a majority vote, once the declarant's voting rights end, the "Appointed Board of Directors" make decisions by consensus.[152] If consensus fails, one member present at the meeting can call for a vote on an issue under discussion. If six members in attendance agree, the group holds a formal vote whose outcome is determined by a majority of the quorum present (as long as no fewer than six eligible voters are in favor of the proposal).[153] Three or more voting members, however, may request that the issue be referred to non-binding mediation.[154] If mediation fails after thirty days, the issue returns to the Board for a majority vote.[155] The CC&Rs also stipulate a specific alternative dispute resolution procedure before parties can formally litigate disputes. Beginning with non-binding mediation,[156] disputants are required to move to non-binding arbi tration[157] as a final step before proceeding to formal litigation in court.[158]

B. New View Cohousing

New View Cohousing, a condominium located in the Boston suburb of West Acton, Massachusetts, began with the formation of a core group of interested households in October 1989.[159] First established by Yvonne Bauer after she read McCamant and Durrett's book on cohousing, the group grew from her circle of friends and acquaintances by recruiting new members through advertisements posted in food co-ops.[160] Membership during its early stages was fluid, with some people departing the group because of their desire to keep the planned cohousing development's prices more affordable, rather than like the traditional, market-rate suburban housing model within which New View eventually developed.[161] After spending more than two years searching and unsuccessfully bidding for land in the Acton area, the group finally found and assembled multiple parcels of land totaling 19.5 acres.[162] Once the group purchased the land, demand for membership grew beyond the number of available slots and the group created a waiting list. The residents that eventually purchased units and moved into New View include "traditional" two-parent families as well as single mothers, older singles, and a lesbian couple.[163]

Situated on a secluded wooded hillside, New View's mixture of attached and detached units is clustered in groups of four or five units with pedestrian paths winding between them and the central parking lot.[164] All of the units are designed with the kitchens in front, overlooking the pathways and common land. The living rooms are set in the back of the house.[165] Residents began to move into the units in April 1996 and broke ground on their common house in 1998.[166] Before the common house's completion, common meals were held as revolving potluck dinners in individual residential units.[167]

The New View units are relatively large and expensive, with nine of the twenty-four units having between 2,200 and 3,000 square feet and costing more than $300,000.[168] The most expensive unit sold for $420,000.[169] While close to the market average for suburban West Acton, the figure is double the median home price for the Boston area.[170]

1. Legal Form

The group's earliest agreement created, documented, and con trolled the use of an "earnest money fund."[171] Initially made up of $1,000 contributions and monthly fees from each household, the fund was intended not only to cover the ongoing costs but also to solidify the group and communicate to banks and developers its commitment to developing a cohousing project.[172] While it shopped for land, the group hired a lawyer to work with its legal committee to create a non-profit corporation that would protect members from potential liability.[173]

Group members ultimately chose to organize as a condominium rather than as a cooperative after learning that in Massachusetts, the condominium form was more advantageous for homebuyers seeking a mortgage.[174] Indeed, because mortgage approval cast a wide shadow over the organization as it developed, the group required that membership be contingent upon "proving pre-qualification for a mortgage in the range . . . expect[ed] ."[175] The charter itself included two provisions distinctive to cohousing: a set of principles about community and property rights, and a consensus decision making process that would be included within the Declaration of Trust discussed infra. The Master Deed, on the other hand, is a straight-forward document describing the property, individual units, common areas and facilities, as well as unit owners' percentage interest in them. It also delineates the powers of the condominium's trustees and the rights of mortgage holders.[176]

2. Restraints on alienation

In its Master Deed, the New View group reserved the right of first refusal for any sale or transfer of a unit. This provision is explicitly allowed in deeds under the Massachusetts condominium statute.[177] The New View Master Deed asserts that the right of first refusal is "exercisable as a means of insuring owner-occupancy of a Unit and to insure the continuance of the mission of the Condominium Trust . . . but only upon the terms and conditions set forth herein,"[178] and with the proviso that the right be used in a non-discriminatory manner.[179] However, in order to comply with requirements set by Fannie Mae and the Federal Home Loan Mortgage Corporation the right of first refusal does not extend to mortgagees in the case of any lease, sale, or transfer of a unit related to a mortgage foreclosure or in case of the transfer of a deed in lieu of foreclosure.[180] Thus far, the limited formal protections of these provisions have not been necessary, as evidenced by the first sale of a New View unit from an original resident to a family on the waiting list.[181]

New View did attempt to enhance its limited control over the composition of the community through restrictions on the renting of units. The original drafts of the Master Deed stipulated that any unit or part thereof could only be leased with the written permission of the Trustees and "in accordance with the By-Laws."[182]

3. Decision-making and Dispute Resolution

While residents may have felt constrained by organizing as a condominium in developing their legal agreements, New View's Declaration of Trust, which constituted the framework of members' collective relationships to each other and individual rights to their property, included an extensive description of the goals of the project and outlined their consensus decision-making process. These descriptions were not based upon the boilerplate of condominium law. Instead, they were the documentary passages in which the New View group attempted to delineate substantive and procedural aspirations for its future decision-making that would develop and protect the group's distinctiveness as a cohousing project.

The aspirations appear in the section of the Declaration of Trust devoted to enumerating the organization's purposes. The first part of this section describes the condominium's "general purposes," and defines the general statutory rights and powers of the trustees to "exercise, manage, administer and dispose"[183] of the trust under Massachusetts law.[184] However, the other. entitled "Furthering Goals of Condominium,"[185] is specific to New View as a cohousing project. It lists eight general goals that describe the condominium as one "whose architectural and social organization will enrich the daily lives of the Unit Owners,"[186] that will "encourage, through shared responsibilities and other means, a sense of community among Unit Owners,"[187] and that will be "a secure and enriched setting for children,"[188] "environmentally gentle,"[189] and "affordable."[190] Standing out in a document where the majority of legal language comes from the boilerplate of condominium law, this section, though vague and lacking enforcement provisions, is an attempt to define the group's goals in its future substantive decisions in a legally binding contract that runs with the land. Exceeding the common utilitarian contents of the model condominium declara tion,[191] this statement of purpose is at once a set of structuring principles that will prove difficult to follow if they are not made enforceable in the bylaws and house rules, and a symbolic, communitarian intervention into the legalistic discourse of contract and property that seems weighed towards defining individual rights and obtaining approval from external actors — namely lenders seeking to protect their investment in loans to individuals from what mortgage holders might consider their mortgagees' excessive mutual obligations to fellow community members.

If these goals attempt to construct a substantive framework for New View's future, the New View declaration's "modified consensus" process, which must be used for all decisions made by the trust and its individual unit owners, provides a procedural framework for future decision-making.[192] This process requires that in order to adopt a proposal, all of those eligible to vote must either agree with it or stand aside.[193] Its "fall-back" provisions allow for a proposal that does not pass within a specified time to be tabled until a subsequent meeting[194] and, after three failed attempts to reach consensus, to come to a vote.[195] According to one original member, the group has relied on voting only twice in its ten years of existence.[196]

The New View declaration includes an alternative dispute resolution framework that seeks to avoid litigating conflicts. Under the declaration, disputes that cannot be resolved through good faith negotiation efforts by the parties must first go through a formal mediation process. They may then be subject to binding arbitration.[197]

4. Conclusion

Designed as a suburban project with homes that are typical in size and price for the suburb in which it is located, New View adapted the condominium cohousing form through provisions that attempt to retain cohousing community ideals in its legal documents. These provisions set unenforceable substantive goals and establish standard cohousing procedural frameworks for decision-making.

C. EcoVillage Cohousing

In its development process and organizational forms, the Eco Village Cohousing Cooperative (EVCC) strayed further from the typical condominium/homeowners association model. Completed in August 1997, it is located two miles west of downtown Ithaca, New York.[198] Its land was originally part of a 176-acre parcel of fields, woods, and wetlands owned by EcoVillage at Ithaca (EVI), a nonprofit educational institution with ties to Cornell University.[199] EVI sold a portion of its land to EVCC, holding the remainder in a land trust with plans to sell a limited number of discrete parcels for additional "eco-village" cohousing neighborhoods on its site.[200] EVI maintains the undeveloped land for preservation, agriculture, and passive recreation.[201] EVCC's pre-existing relationship with EVI made land purchase relatively easy, allowing the group to bypass the lengthy and difficult process through which more typical cohousing groups like Doyle Street and New View must go.

The "eco-village" concept that EVCC attempts to embody en courages the mixed use of land for domestic, agricultural, and commercial use while limiting the use of power and water.[202] Although consistent with the general concept of cohousing,[203] only a few currently existing cohousing projects in the United States call themselves eco-villages. In the words of one cohousing community member, who suggests making only minor modifications to existing building methods, ecovillages are difficult to create because an "ecologically sound building site" is more expensive to build and more difficult to maintain than a conventional development.[204] In addition, such a project is more likely to meet with resistance from conventional local building codes and departments.[205]

EVCC includes thirty units, all of which are attached duplexes lining a pedestrian walkway the width of a small street. Homes range in size from 922 square feet one-bedrooms to 1642 square feet four-bedrooms, while the majority are 1300 square feet three-bedrooms.[206] The EVCC common house, located at one end of the central walkway, includes a dining area that overlooks the property's pond, restaurant-style kitchen, children's play room, sitting room, private offices, guest room, crafts room, teen room, root cellar, and laundry facilities.[207] The carport is detached from the neighborhood, and includes a wood shop and recycling/storage shed.[208] All of the structures at EVCC are designed to achieve high-energy efficiency through solar power, insulation, and shared hot water. In addition, individual units forego full-sized kitchen appliances and their own laundry facilities under the assumption that residents will take advantage of the facilities at the common house.[209] The basement of the common house includes office space that is part of the proprietary leases of the residents who use the small offices for their businesses.[210] The smallest unit, a one-bedroom, cost $90,000, while the largest and most expensive unit is a four-bedroom, which sold for $155,000.[211]

Residents typically share three meals per week in the common house and each resident helps to prepare a common meal approxi mately once per month.[212] The common house is also the site of evening events like parties, potlucks, and talks by invited speakers. Residents share the common work of cooking, cleaning, and outdoor maintenance through a rotating "work team" system.[213]

The EVCC resident group is organized as a housing cooperative in which members purchase shares associated with their unit through a proprietary lease.[214] The cooperative acted as its own developer, hiring a private firm as architect and development consultant, and contracting directly with private builders.[215] One important reason for EVCC's greater self-sufficiency is that since its inception, the group has included Susan McGreivy, a gay rights activist and attorney, who previously worked for the ACLU in Los Angeles. While not a member of the New York Bar Association, McGreivy has overseen the production of most of EVCC's agreements and documents with the help of local counsel.[216] She remains an active member of the EVCC community, attending meetings and assuming a leadership role due to her familiarity with the charter, by-laws, and proprietary lease. She also continues to coordinate EVCC's dealings with local government concerning land use issues.[217]

1. Early Legal Documents

EVCC's earliest charter, written in August 1992, was intended by prospective members to raise capital and define the financial and time commitments that the "core group" and waiting list households would be required to make.[218] Non-financial commitments of households included regular attendance at resident meetings and participation in at least one committee or task group. Absence at more than three of the twelve monthly meetings in a calendar year was grounds for losing core group member status.[219] In addition, core group households were required to pay an initial $250 fee and commit to paying ongoing fees that the core group decided to levy (those on the waiting list paid $50, which could be credited to the initial core group membership fee should they move up in status).[220] Although parts of the charter emphasized the participatory nature of the cohousing project and required signors to read the leading book on cohousing,[221] it said little about what practices or relationships distinguished cohousing and Ecovillage from other housing models.

As EVCC began to organize formally, EVI hosted four land use planning forums from September 1992 to March 1993 on the use of its property.[222] At these meetings were the early members of what would become EVCC, as well as architects, landscape architects, students, professors, planners, ecologists, and energy experts.[223] The result was a document called the "Guidelines for Development," which was approved by the EVI Board of Directors in October 1993. The Guidelines provided fairly detailed directions for the general design of future cohousing developments, including the placement of buildings and roads, and the kinds of building materials to use.[224] They also supplied directions to protect and limit human impact on the site's environment, including guidelines for energy and water use and for solid waste and water disposal. In addition, the Guidelines contained suggestions that residents rely upon agriculture produced organically on-site and that residents limit their use of automobiles on the property.[225]

Prior to the completion of the Guidelines for Development, current members of the EVCC signed a joint venture agreement (JVA),[226] which was later revised and expanded in an amended joint venture agreement (AJVA) effective May 1993.[227] Each document provided more detailed definitions of the rights of signors than the original EVCC charter,[228] required an increasing financial commitment from the group's members,[229] and placed larger barriers to the withdrawal of signors.[230] The amended agreement also included express and detailed provisions for waiting list members.[231] Furthermore, the AJVA provided a fuller definition of the decision-making procedures of the group by referring directly to the consensus process outlined in the original charter.[232] More importantly, the AJVA precisely defined the polis of the emerging EVCC community by explicitly excluding from the "consensus pool" those who were not "responsible parties" to the agreement (i.e., fully committed members and those on the highest level of the waiting list).[233] The agreements thereby protected the emerging EVCC community through the strength of each individual's commitment, which was expressed by the ability and willingness to commit the funds required to become legally binding members.

2. Alienability of Shares

As the EVCC progressed, revised legal documents began de-fining the limits of the residents' property rights in their cooperative shares and specifically the alienability of their homes. The EVCC's Certificate of Incorporation, signed in May 1995, stipulated that the new corporation's bylaws and proprietary lease had to "restrict the facility with which shares in the Corporation may be transferred, assigned, or otherwise used."[234] Under the certificate, shareholders seeking to transfer shares were obligated to pay a transfer fee or "flip tax" on a percentage of the profit realized in the sale.[235] This obligation served three purposes: first, it limited speculation and profit-taking on shares and private property in the community; second, it recaptured some of the increasing value that the community was helping to create in the private property located within it; and third, according to the proprietary lease, established that half of the proceeds would be used to assist lower-income potential purchasers share in the EVCC.[236] The EVCC also required that shareholders receive written consent from at least two-thirds of the corporation's directors before transferring shares to others, except in the case of a transfer to a spouse or domestic partner.[237]

The EVCC proprietary lease established procedures for the re view of prospective buyers in a proposed share transfer.[238] These procedures also require that two-thirds of the corporation board approve any sale[239] and that the corporation maintain a waiting list of interested parties.[240] Within three days of the receipt of intent to transfer a lease, the board of directors is obliged to notify all members on the waiting list of the shares' availability and the seller's asking price.[241] The corporation also retains the right of first refusal to purchase shares on the market before any transfer as long as the EVCC makes a matching offer within ten days.[242] The proprietary lease also institutionalized the flip tax, setting a "present" rate at 20% of the net gain, reduced by expenses of the sale and the cost of the seller's documented improvements to the unit, and reduced either by inflation or by the local county Board of Realtors' annual average appreciation factor for housing.[243]

The proprietary lease also stipulates review procedures for the rental of units. Residents may not sublet or take in an additional tenant without majority approval from the board of directors,[244] and residents must "present the proposed sublessee or additional tenant to meet the residents of the neighborhood over the course of several days."[245] Subleases, which must be submitted to the board,[246] are required to contain provisions concerning the community at large, such as parking and the use of common facilities, and should also address "participation in Corporation activities."[247] Furthermore, leases must include the House Rules as an appendix.[248]

These provisions allow the community to have some control over new entrants.[249] At the same time, the provisions enable residents to discriminate in the selection of new entrants, a power that is used in cooperative housing structures owned by upper-income groups,[250] which may adversely affect the building of a richer, more diverse community.[251] EVCC thus established, fairly early on in the project, restraints on alienation that were central to the legal incorporation of the group and its procedural construction and protection of community.

3. Decision-making Procedures

Beginning in its early charters, EVCC has relied upon consensus decision-making, which one version of the charter describes as a "group decision . . . arrived at without voting, through a process whereby all members feel that they have been adequately heard, . . . [and] so that all are satisfied with the process."[252] While the charter fails, except in general language, to specify the precise procedures for this process, it does describe the voting "fall back" procedures in detail, requiring that a voted decision be made at a meeting where two-thirds of the households are represented and an 80% majority is reached.[253] Prior to taking a vote, the group must discuss "whether a decision on this issue is so urgent that it justifies abandoning consensus,"[254] a proposition with which at least 80% must agree.[255] These procedures, used at every meeting before and in the time since construction was completed, remain in place despite the fact that they are not provided for in either the Proprietary Lease or the Bylaws. Instead, the Bylaws describe a standard voting procedure for meet ings of the shareholder-lessees that distribute one vote per household, require a quorum of 70% of the households,[256] but allow the cooperative's directors, as a first order of business after the first annual meeting, to establish a "rules of Order" for EVCC that employs a consensus process.[257] In so doing, the EVCC documents first establish the development as a "normal" cooperative under New York law and then, once it has begun, enable EVCC to aspire to become a cohousing project through its procedural framework.

The Bylaws also attempt to avoid litigation through the use of alternative dispute resolution. Disputes must first be taken to an internal mediation procedure through a "process committee" appointed by the coop's directors.[258] If this does not bring about a successful resolution, aggrieved parties must agree to "set the matter aside for a period of twenty-four hours of reflection" before the directors submit the dispute to a local dispute resolution center.[259] If this step also fails, then parties may submit the dispute to binding arbitration for money damages only.[260] Unlike Doyle Street,[261] EVCC attempts to foreclose the availability of courts to resolve disputes within the group or between individual residents and the group itself.

4. Conclusion

In its agreements and documents, EVCC embodies more of a commitment to the ideals and practices associated with cohousing than Doyle Street and New View do in their documents. This con trast is the result of a combination of factors, including New York State's cooperative laws, EVCC's location in a liberal college town rather than in an urban or suburban area, and the stronger commitment of participants to agree to greater restraints on property rights in favor of community and commitment to cohousing principles. Further, EVCC has the participation of a resident who was trained in law and had the time and inclination to develop the group's legal documents.

V. COHOUSING AND/AS CICS: THE POSSIBILITIES AND PROBLEMS OF COMMON RESIDENTIAL PROPERTY BY COVENANT

This section considers cohousing in light of current critiques of CICs and theories of limited common property. It also notes the policy implications of the cohousing model and addresses the model's potential to address societal needs for affordable housing.

A. Cohousing and Common Interest Communities

The prominence of the CIC as both a private community created by contract and a dominant form in the private residential housing development industry has stirred forceful debate among legal and political science scholars. This debate raises a number of issues that are relevant to understanding cohousing.

For its proponents, the CIC is a utopian project that enables partnerships between public and private entities and allows for the development of diverse middle class values and alliances for "building and sustaining community."[262] More libertarian advocates praise CICs for creating a market of private communities that are legally protected through the "true social contract" of the covenants to which individual owners assent in the provisions of a CIC's original governing documents.[263] In the drafting and enforcement of covenants, CICs "provide some value that traditional governments cannot, whether it be a good or service, an opportunity for private rulemaking, or assurances of stability."[264]

Critics, however, characterize such utopianism as "inherently mistaken" in its assumption that the ownership of private property is the "ideal basis for a sense of community."[265] Instead, they argue, CICs' creation of "privatopias" based upon exclusion and isolation are threats to democracy and social interaction.[266] Other skeptical commentators decry abuses and structural inequities in the CIC market, including the control of the associational creation process by developers;[267] the coercion of consumers into buying houses in CICs because of the pervasiveness of the CIC form in the market for new homes;[268] the de facto exclusion of lower income individuals from the vast majority of CICs through lot size, house size, and the resulting price;[269] and CICs' anti-democratic governance processes.[270] Whether due to distributional inequities or market failures that lead to an exclusive, imperfect CIC form, or because of the procedural failures of CICs' governing structures and practices, these critics—many of them communitarians who might otherwise celebrate a utopian longing for the small-scale polity of the neighborhood association—find the CIC to be anti-democratic and coercive both internally for its residents and externally for its effects on the community.[271]

The difference between proponents and critics is basic. For contractarians, residents "consent" to the government to which they agree by contract, and that consent should be respected and protected by the state.[272] For communitarians, residents merely "assent" to the contractual arrangement of the CIC, and legislators and the judiciary should not assume their consent, nor should their assent be allowed to create negative externalities for society.[273] By using covenants to bind voluntarily original and future residents to its community and by insuring the presence of both assent and consent through a remarkably active, elaborate, and deliberative contractual negotiation and governing process, however, cohousing should attract both CIC proponents and critics.

Yet, the legal processes and documents of cohousing developments demonstrate the problems of both approaches. To the extent that most cohousing groups feel constrained by the regulatory system of property law and financing, their ability to contract freely with each other and to create innovative social contracts is impaired. Similarly, legal constraints—intended to protect consumers from the allegedly coercive nature of the CIC form and developer practices, and to protect society from the exclusionary and rights infringing practices of gated communities—may create a regulatory regime that makes the creation of cohousing communities more difficult to achieve.

By appropriating the CIC form for the creation of a more intensive, deliberative, and democratic "community association," cohousing demonstrates both the potential of the CIC form to create innovative, community-oriented property relations, and its shortcomings in current practice.

B. Cohousing, CICs, and Limited Common Property

Similarly, by providing a more intensive use of and reliance upon common property, cohousing is an important model for the theory and practice of resource management in the residential housing context. Neither thoroughly privatized nor state-controlled,[274] cohousing developments, like CICs, create limited common property, "property held as a commons among the members of a group, but exclusively vis-a-vis the outside world."[275] Limited common prop erty excludes other potential users of the common pool of resources (in this case, land and commonly held facilities built upon it) and regulates the use and users of the resources to prohibit or ameliorate the resources' depletion.[276]

To form common property, members of a group must share the ability to communicate with each other and have the capacity to make credible commitments to each other. They must also be able to agree on behavioral norms and possess the ability and willingness to monitor each other and sanction noncompliance.[277] Furthermore, the group must create norms, rules, and property rights that are recognized by external authorities.[278] As indicated by the cohousing case studies, future cohousing residents are concerned with developing internal norms and commitments and in having those commitments recognized by external legal authorities. These processes differ from the majority of privately developed CICs, whose CC&Rs and physical design are created prior to consumers' involvement in the development and purchase of the individual unit. Although formally similar to those of CICs, the "institutional arrangements" of cohousing—the rules in use by a development to determine who may use commonly held property[279]—are predicated upon collaborative decision-making and contemporaneous use of property (as in the use of the common house for common meals). Cohousing's creation of limited common property enables the private, individual homeowner to create and opt into a public community with shared resources and activities.

Cohousing attempts explicitly to balance the private concerns of the homeowner with the public desires of the community member through the creation of a "commons." Like the private community associations whose corporate forms and legal structure provide part of its legal context, cohousing is legally private to those outside the boundaries of the community.[280] Even a cohousing's "commons" is private. Cohousing as a model of residential development, therefore, does not address the criticisms of CICs as exclusionary "privatopias" that isolate developments from their surrounding communities. Privatopias, critics allege, play on individuals' fears of the encroachment (racial or class) of the inner city in soliciting new residents[281] and develop a local micro-government that implicitly secedes from the municipality and county in which they are located.[282] Cohousing itself is relatively homogeneous in the racial, social, and economic backgrounds of its participants,[283] due at least in part to self-selection and the requirements of available capital, knowledge, and time to participate.[284]

Such exclusion from surroundings and diverse populations, though clearly troubling to many in cohousing,[285] is one of the key features of limited common property. Theories and histories of the commons posit that "open access" regimes, in which entry is unlimited and no coordinated management exists, are more susceptible to the purportedly "tragic" consequences of the commons.[286] Moreover, such exclusion should not be surprising given the mix of libertarian-contractarian and communitarian desires embedded in cohousing's attempt to create an intensive community. A normative goal of libertarian theories of property, contract, and community in a world where power and resources are unevenly distributed is to protect the rights of (some) individuals to opt into their own communities and exclude others.[287] A normative goal for communitarians is to protect the rights of one or a limited number of majoritarian groups to create and protect communities such that no others could invoke legal rights that would threaten the groups' commitment to community.[288] Furthermore, as Iris Marion Young has argued, homogeneity in a communitarian movement should not be surprising given communitarianism's "commitment to an ideal of community [that] tends to value and enforce homogeneity," that might lead to "interactions dissolving into unity or commonness,"[289] and that "in practice operates to exclude those with whom the group does not identify."[290]

The problems of exclusion notwithstanding, the internal community structures built into cohousing accentuate the social and relational aspects of property and encourage group identity through common property.[291] Cohousing residents collectively utilize and supervise the commonly held land and facilities of their developments —unlike more traditional CICs, which are typically built around professionally managed recreational facilities like a golf course or swimming pool that residents utilize individually—and sacrifice the maximum private ownership of land by clustering smaller units together. Cohousing thereby attempts to reject the traditional, legal relationship among fee simple owners as well as the somewhat more complex legal relationship among condominium unit owners and housing association members in favor of evolving a group identity in common property.[292] Accordingly, cohousing represents a small step toward collaborative action in property relations and away from the utilitarian approach to property that allots privileges through commodification.[293] Cohousing provides a more intensively communitarian model of limited common residential property than traditional CICs. It also provides an innovative model for individuals, families, and groups dissatisfied with current private housing options.

C. Cohousing as a Model for Affordable Housing

Notwithstanding the relative homogeneity and implicit exclusion of current private cohousing developments, cohousing's model of a democratic development process, community self-governance, and limited commons may provide a model, or at least an inspiration, for affordable housing.[294] A recent HUD report describes six cohousing projects, including the Ecovillage Cohousing Cooperative in Ithaca, whose units' prices average below the reported median for their respective housing markets.[295] Praising cohousing as a model of "innovation for homeownership," the report notes that cohousing projects' shared construction and maintenance costs for individual units help keep the price and ongoing expenses of units relatively low.[296]

Resident-designed and resident-managed affordable housing has historical precedent. In the first half of the twentieth century, unions in New York used an advantageous state law to establish cooperative housing projects, including five buildings built by the Amalgamated Clothing Workers in the Bronx.[297] During the New Deal, unions and some housing advocates attempted to establish federal legislation enabling the construction of cooperative, low-income housing. Their efforts, tied to the Wagner Public Housing Act, failed due to the resistance of members of Congress who feared the cost of such projects and the social implications of such a model for housing and due also to lobbying by real estate, business, and banking interests.[298]

Currently, cohousing could be an important part of what affordable housing advocates call a "third sector" of affordable housing creation and maintenance.[299] Third sector housing is owned privately by individuals or non-profit organizations (rather than by the state or city), is "socially oriented" in that its purpose is to serve the social needs of its occupants, and is price-restricted to preserve affordability for future owners or renters.[300] Cohousing attracts "third sector" proponents by encouraging collaboration and by linking renters and/or owners "together in common cause."[301] The same self-creation of community that should attract libertarian and communitarian commentators to cohousing has led one commentator to praise cohousing's "potential to empower women of color, particularly Latinas, [t]hrough the steps of identifying their own needs, planning a community to meet those needs, working with other residents, architects, city governments, contractors, nutritionists, health care professionals and education professionals, and seeing their plans materialize through construction of their own community¼."[302]

This combination of private individual autonomy, achieved through opting into a cohousing group and gaining a private resi dential unit, with public group formation, identification with a community, and mutual support is an important, innovative model for the future of affordable housing.

As part of the solution for affordable housing, some cohousing groups have included low-cost units within their developments. These include Common Ground in Aspen, Colorado, which is exclusively comprised of permanently affordable units, and Depot Commons in Morgan Hill, California, which includes twelve single-parent families attempting to move off of welfare.[303] Southside Park, in downtown Sacramento, California, included affordable housing as part of a deal with the city to gain approval for its high-density plan of development, and received assistance from the city's housing and redevelopment agency to enable residents to receive low-income housing subsidies.[304] Cohousing not only offers a model for affordable housing developments, it also serves as a model for small-scale, mixed-income urban projects that allow for a mix of diverse groups of individuals.

VI. CONCLUSION

Cohousing is a diverse movement based upon a concept sufficiently open to allow some groups to resemble middle class urban and suburban condominium developments and others to be intensive projects of cooperation and environmental conservation. The creation of legal documents, one part of the cohousing process, allows these small participatory groups to deliberate upon and construct a community by covenant by arranging property rights and setting forth procedural and substantive foundations for the future. Yet the available legal forms and the regulatory system of housing development structure the choices the groups can make in how they organize and bind themselves.

Cohousing's collective participation in the production of private and limited common spaces is an important model for fostering democratic accountability in the development and use of real property. Cohousing allows direct, collective control over spending for and management over the construction and maintenance of public and private spaces exercised through a governing structure that fosters deliberation and consensus.[305] To the extent that original residents initiate and participate in a cohousing project's development, these residents' identification with the community is likely to be greater. To the extent that most cohousing groups impede an easy exit through restraints on the alienation of property, cohousing induces the internal participation of its residents.[306] Finally, to the extent that most cohousing groups facilitate deliberative decision-making by requiring a consensus process, cohousing may increase both the potential power of the individual resident's voice and the likelihood that it will be used.

If homeownership constitutes an ideal of Sperfected citizenship" by integrating the individual or family unit into wider systems of property rights, social value, and political rights,[307] then cohousing may constitute a form of direct, participatory democracy that would not only create a property right, but also connect the rights of ownership and citizenship to an engaged and engaging local community.[308] Cohousing's attempts to resolve the conflict between public/community and private/property in formal legal doctrines and documents may ultimately be part of the ongoing efforts to construct a sense of place with an appropriate set of property arrangements, arranged in law and in practice.

_______________________________

[*] Land Use & Environmental Law Fellow, Shute Mihaly & Weinberger, San Francisco, California; Ph.D., University of Illinois at Urbana-Champaign (Institute of Communications Research), 1992; J.D., Yale Law School, 1998. Many thanks to Carol Rose for extensive comments on earlier drafts. Thanks also to Robert C. Ellickson and Wayne Hyatt for helpful discussions while the project was still in its formative stages. Finally, I am exceptionally grateful to the following cohousers for their assistance: Joani Blank, Susan McGreivy, and Jim Snyder-Grant. Return to text.

[1] See CHRIS HANSON, THE COHOUSING HANDBOOK 3 (1996). Return to text.

[2] Lorraine Mirabella, A Neighborly Lifestyle and Sense of Community, BALTIMORE SUN, Nov. 27, 1995, at 1A. Return to text.

[3] While Hyatt claims that the term community association "is increasingly used as a generic term inclusive of all forms of housing that require a mandatory membership association," WAYNE HYATT, CONDOMINIUM AND HOMEOWNER ASSOCIATION PRACTICE: COMMUNITY ASSOCIATION LAW (2d ed. 1985) § 1.05(a)(1), at 17, Natelson rejects it as misleading and ambiguous. See ROBERT G. NATELSON, LAW OF PROPERTY OWNERS ASSOCIATIONS § 1.1.2 n.4, at 5 (1989). For the sake of simplicity — this is not intended as an extended treatment of the concept as it operates in the homebuilding industry and the law, but as a background in which cohousing groups and developments exist — I will use the following terms, and leave to others the debate over terminological clarification: "A community association . . . refers to the organization in any form of real estate development with a mandatory membership" obligation created by either servitude or statute. The common interest community is the development itself. See Hyatt, supra § 1.05(a)(1) at 10; § 2.01 at 25. This is also the term used in the Uniform Common Interest Ownership Act, see UCIOA §1-103(7) cmt. 8, as well as in the forthcoming Restatement for servitudes, see RESTATEMENT OF PROPERTY (SERVITUDES), § 6.2, at 134 (Tentative Draft No. 7, 1998). Return to text.

[4] See SUSAN F. FRENCH & WAYNE S. HYATT, COMMUNITY ASSOCIATION LAW 4 (1998); NATELSON, supra note 3, §1.1.1, at 3-4. Return to text.

[5] See Felicia Paik, Private Properties, WALL ST. J., Mar. 27, 1998, at W8; see also James L. Winokur, Critical Assessment: The Financial Role of Community Associations, 38 SANTA CLARA L. REV. 1135, 1138-41 (1998) (describing the likely dominance in the near future of CICs in residential markets, and calling for state and local governments to consider the financial health of CICs for local governments and land use policy). Return to text.

[6] The clearest indices of this development are the treatises and recent casebooks devoted to the law of CICs. See sources cited, supra note 3; see also Todd Brower, Communities Within the Community: Consent, Constitutionalism, and Other Failures of Legal Theory in Residential Associations, 7 J. LAND USE & ENVTL. L. 203, 228-29 (1992) (describing state regulation of contracting process in CICs). Return to text.

[7] See infra notes 262-73 and accompanying text. Return to text.

[8] As of the spring of 1998, an estimated 3,000 people lived in fifty cohousing developments in the United States. See Darcie Lunsford, Delray Beach housing concept goes back to basics, S. FLA. BUS. J. , Feb, 27, 1998, at 1A (quoting president of the Cohousing Network, a national cohousing organization). This marks a steep increase from the fall of 1997, when there were an estimated twenty-eight established cohousing communities in the United States, with twenty-six more under construction, and as many as 150 groups formed to start new projects. See Mary McAleer Vizard, Putting Up Housing With A Built-In Sense of Community, N.Y. TIMES, Sep. 7, 1997, at Sec. 9, p. 1, col. 4. A 1998 report prepared for the U.S. Department of Housing & Urban Development included cohousing as one type of "the 'Next Generation' of American housing that will result in improved quality, durability, environmental efficiency, and affordability for tomorrow's homes." U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, BUILDING INNOVATION FOR HOMEOWNERSHIP 4, 100 (1998). Return to text.

[9] Even where a private developer oversees the project, future residents shape its final design, and cohousing consultants assist in the development. See John Rebchook, Communal Living Gardens: Cohousing on Old Elitch Gardens Site, ROCKY MOUNTAIN NEWS (Denver, Co.), Feb. 21, 1999, at 6G (discussing role of one developer in the development of numerous Colorado cohousing communities and the processes by which residents of one of his projects worked with the architect in designing the project's common space, layout, and aesthetics). Return to text.

[10] Basic introductions to cohousing include DORIT FROMM, COLLABORATIVE COMMUNITIES (1991); HANSON, supra note 1; KATHRYN MCCAMANT & CHARLES DURRETT, COHOUSING: A CONTEMPORARY APPROACH TO HOUSING OURSELVES (1994). Return to text.

[11] To this end, one book on cohousing presents an apocryphal tale of the return of a hypothetical working mother named "Anne" to her ideal cohousing neighborhood. Anne's experience of cohousing is a re-entry into domestic sanctuary. Her trek moves from the driveway where she leaves her car (and therefore her ties to work and the pressures of the "outside world") and leads her through the playgrounds of her older daughter and her friends, a group of active, creative neighborhood children; the common house where she sees the evening's cooks, two of her neighbors, fixing the community dinner; past the common house patio where some of her neighbors are sharing a pot of tea in the afternoon sun; past neighboring residential units where people whom she knows go about their daily lives; and into her own home, where she drops her things before walking "through the birch trees behind the houses" to pick up her younger child from the community day care center. See MCCAMANT & DURRETT, supra note 10, at 13-14. Simultaneously at home in her community and her private residence, with her family integrated into a coherent neighborhood, Anne seems to have found a protective refuge from many of the crises of the private family and the public sphere in the domestic, semi-public, semi-private realm of cohousing. Of course, cohousing's emphasis on collective domestic recuperation can only solve part of Anne's crisis—by allowing her to "unwind at last" after a presumably hard day at work. See id. at 13. Return to text.

[12] Cohousing communities are not as close-knit, isolated, or insulated as communal utopias. They do not share most or all of their property or a specific set of ideological principles. See Donald E. Pitzer, AMERICA'S COMMUNAL UTOPIAS 3, 5 (Donald E. Pitzer ed., 1997); see also Rebchook, supra note 9 at 6G (quoting spokesperson's comparison between 1960s-era communes where "freeload[ing]" residents lived off the land, and contemporary cohousing developments where residents purchase their residential units and earn their living outside the community). Furthermore, cohousing projects are not nearly as intensive as what one author described as "political perfectionists"—examples of which include religious groups such as the Rajneesh in Oregon and the Kiryas Joel community in New York—who develop and implement community laws and governance to socialize members' behavior thoroughly, and who sacrifice modern, liberal notions of the individual in favor of a total commitment to the group's interconnected welfare. See Mark D. Rosen, The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, 84 VA. L. REV. 1053, 1064-67 (1998). Return to text.

[13] See, e.g., MCCAMANT & DURRETT, supra note 10, at 201 (criticizing the wasteful land and resource consumption of suburban sprawl); Eleanor J. Bader, Cohousing: Collective Living for the 90s, DOLLARS & SENSE, Jan. 1, 1999, at 22 (contrasting suburbanites who "rarely know their neighbors" to the "connected, collective lifestyle" of cohousing dwellers); William A. Davis, Instant Community, BOSTON GLOBE, Mar. 26, 1998, at E1 (describing the unhappiness of one new cohousing resident with the "complete isolation" that she felt from her neighbors when she "lived a middle-class suburban version of the American dream"). Return to text.

[14] See MCCAMANT & DURRETT, supra note 10, at 201 (contrasting the "strong neighborhoods" of cohousing to the "strong security gates" and fearfulness of "Neighborhood Watch" programs that mark contemporary urban neighborhoods). Return to text.

[15] MCCAMANT & DURRETT, supra note 10, at 9. In this respect, cohousing assumes its creation of an "authentic" community—a rhetorically powerful construction that posits the neighborhood as a warm and welcoming shelter from the demands and difficulties of the outside world. See Dana Young, The Laws of Community: The Normative Implications of Crime, Common Interest Developments, and "Celebration", 9 HASTINGS WOMEN'S L.J. 121, 127 (1998) (comparing cohousing to Native American communities and describing cohousing as "a voluntary, rather than ascriptive tribe . . . [that] strives for community in its truest sense"). Cohousing also asserts a particular understanding of contemporary life, as well as the proper goals of the individual and the group. Consequently, it establishes "as outside the group" those who by difference or disparity of income do not belong within the community. See CAROL J. GREENHOUSE ET AL., LAW & COMMUNITY IN THREE AMERICAN TOWNS 184-85 (1994). Yet cohousing also constitutes an attempt, like so many rural and urban places in the modern era, to re-imagine the common local community after the widespread enclosure of common lands in sixteenth century England. See RAYMOND WILLIAMS, THE COUNTRY AND THE CITY 105-07 (The Hogarth Press 1993) (discussing the social and cultural effects of the enclosure movement in England and the struggle for survival of a sense of local "community").

The "new urbanist" movement, which uses the traditionalist CIC form in designing and planning neighborhoods and towns, shares cohousing's utopian longing for small-town life and its crisis narrative of contemporary housing. See generally PETER CALTHORPE, THE NEXT AMERICAN METROPOLIS: ECOLOGY, COMMUNITY AND THE AMERICAN DREAM (1993); WILLIAM FULTON, THE NEW URBANISM: HOPE OR HYPE FOR AMERICAN COMMUNITIES? (1996); PETER KATZ, THE NEW URBANISM: TOWARD AN ARCHITECTURE OF COMMUNITY (1994); JAMES HOWARD KUNSTLER, HOME FROM NOWHERE: REMAKING OUR EVERYDAY WORLD FOR THE TWENTY-FIRST CENTURY (1996); PHILIP LANGDON, A BETTER PLACE TO LIVE: RESHAPING THE AMERICAN SUBURB (1994). However, new urbanism focuses its reform efforts almost exclusively on the design and planning elements of CICs, and, critics argue, fails to address larger land use issues, the notion of shared common property, and residents' participation in local governance (issues that cohousing attempts to explicitly address). See ANDREW ROSS, THE CELEBRATION CHRONICLES: LIFE, LIBERTY, AND THE PURSUIT OF PROPERTY VALUE IN DISNEY'S NEW TOWN 78-79 (1999); STUART C. AITKEN, FAMILY FANTASIES AND COMMUNITY SPACE 132 (1998). See generally PHILIP LANGDON, A BETTER PLACE TO LIVE: RESHAPING THE AMERICAN SUBURB 107-47 (1994) (describing new urbanist towns in terms of their innovative design and architecture). But see id. at 104-05 (describing innovations proposed by neo-traditionalist proponents in CIC covenants that would enable greater decision-making power by residents). Return to text.

[16] Clayton P. Gillette, Mediating Institutions: Beyond the Public/Private Distinction: Courts, Covenants, and Communities, 61 U. CHI. L. REV. 1375, 1396-97 (1994). Return to text.

[17] Cohousing developments face numerous important transactions in which they interact with legal institutions and create formal legal relationships. These include dealings with applicable regulatory, zoning, and environmental regimes; negotiations for the purchase of land, financing, and construction financing; and title examination and surveys. See Rob Sandelin & Dan Suchman, Legal Issues, in Cohousing Resource Guide (Rob Sandelin, ed.) (visited Nov. 6, 1999) . While some of these issues are mentioned in the paper, they are beyond its scope. Return to text.

[18] The terms "regulatory" and "disciplinary" in this context are intended to note the systemic roles of law and finance in private development through which the process of producing legal documents and developing a legally recognized organizational form are inextricably intertwined with obtaining the finances necessary to build a cohousing project. The notion of "regulation," from Alan Hunt's application of Michel Foucault's theory of power/knowledge to the sociology of law, refers to "the deployment of specific knowledges encapsulated in legal or quasi-legal forms of interventions in specific social practices whose resultants have consequences for the distribution of benefits and detriments for the participants in the social practices subject to regulation." ALAN HUNT, EXPLORATIONS IN LAW AND SOCIETY 314 (1993). The legal/financial regulatory system of private residential housing development is productive in that it enables groups to gain legal recognition and secure capital. It is also disciplining in that it directs groups into certain kinds of organizations and relationships.

Working within this legal/financial regulatory system is also largely mandatory. Groups often cannot seek alternative legal regimes within states (although they can find somewhat different regimes across states) and they must receive assistance in financing. Such regulatory regimes in different states may affect a cohousing group's ability to organize and the organizational form it chooses. For example, the New York state banking law that allows cooperative shares to act as collateral for blanket mortgages has led to greater acceptance of the cooperative form by New York lending institutions for in-state projects. See N.Y. BANKING LAW §§ 103(5), 235.8-a, 380.2-a (McKinney 1999). The California Department of Real Estate, on the other hand, restricts the pre-selling of subdivisions (including planned developments, condominiums, and cooperatives) by requiring the filing of an extensive notice of intention with the Real Estate Commissioner before any parcels can be offered for sale or lease. See CAL. BUS. & PROF. CODE § 11010(b) (1987) (requiring reporting and detailing specific information to be included). California also mandates that the Commissioner issue a public report once the subdivision is approved that is to be given by the seller to each prospective buyer, see id. § 11018, and requires that prospective purchasers of common interest developments must be given a statement of general information about the development and access to the articles of incorporation, the bylaws of the owners' associations, as well as to the CC&Rs, see id. § 11018.1(c). In the interest of consumer protection, California's state laws and regulations make developing and financing cohousing projects in the state more difficult. See e-mail from Kathryn McCamant, Cohousing Company, to author (Nov. 5, 1997) (on file with author). Return to text.

[19] But see Young, supra note 15, at 128 (concluding that cohousing and CICs take "inherent[ly] . . . different approaches to private property"). Return to text.

[20] See MCCAMANT & DURRETT, supra note 10, at 12. On the origins of cohousing in Denmark and the role of Danish architect Jan Gudmand-Høyer in designing, developing, and promoting the concept, see id. at 135-41. Since 1972, approximately 200 cohousing projects have been completed in Denmark. See HANSON, supra note 1, at 2. Return to text.

[21] See MCCAMANT & DURRETT, supra note 10, at 203. Return to text.

[22] NAN ELLIN, POSTMODERN URBANISM 4 (1996). Return to text.

[23] See EVAN MCKENZIE, PRIVATOPIA 19 (1994). Return to text.

[24] See id. Return to text.

[25] See ROBERT JAY DILGER, NEIGHBORHOOD POLITICS: RESIDENTIAL COMMUNITY ASSOCIATIONS IN AMERICAN GOVERNANCE, 41-60 (1992); MCKENZIE, supra note 22, at 19; Stephan E. Barton & Carol J. Silverman, History and Structure of the Common Interest Community, in COMMON INTEREST COMMUNITIES 3, 3-12 (Stephan E. Barton & Carol J. Silverman, eds. 1994). Return to text.

[26] MCCAMANT & DURRETT, supra note 10, at 40, 173. Return to text.

[27] See id. at 44 (noting that most cohousing communities have attached dwellings, but that some consist of detached single-family houses). Return to text.

[28] See id. at 207-15. Return to text.

[29] See id. at 249-57. Return to text.

[30] Clustering in cohousing encourages interaction in a number of ways, including the creation of heavily utilized common areas that include facilities like children's play areas. See MCCAMANT & DURRETT, supra note 10, at 40. Relegating parking to the periphery of the site encourages pedestrian circulation. See HANSON, supra note 1, at 118-19; MCCAMANT & DURRETT, supra note 10, at 175-77. Designing individual units to open into the cluster with the most utilized rooms, such as the kitchen, in the front of the units with windows that look out onto pedestrian pathways also encourages interaction. See HANSON, supra note 1, at 119; MCCAMANT & DURRETT, supra note 10, at 179-80. Return to text.

[31] See HANSON, supra note 1, at 13. In addition, many cohousing groups standardize the designs of private units by either using a single plan for all units, or by employing a small number of plans that vary according to the unit size (i.e., one design for all one-bedroom units, and another for all two-bedroom units, etc.). See MCCAMANT & DURRETT, supra note 10, at 54-55. While this sacrifices the individuality of units, standardization not only saves money for those who might otherwise have made distinct design decisions, it simplifies and saves time in the construction process. See HANSON supra note 1, at 140-41. Return to text.

[32] See Vizard, supra note 8 (comparing the average new and existing house price of between $100,000 and $120,000 in Saugerties, New York to the $130,000 price of a house in Cantine's Island, a cohousing development in Saugerties); Richard Higgins, Seeking Common Ground: Newton Group Looks to Join Cohousing Movement, BOSTON GLOBE, Oct, 1, 1995, at West Weekly (estimating that while the expected price of a unit in a new cohousing development would be comparable to the "market rate" for houses in the area, the additional time and effort that the initial residents must invest in the development process makes it more expensive). Cf. MCCAMANT & DURRETT, supra note 10, at 284 (claiming that cohousing units are "usually comparably priced" with other residential units in an area, but noting that because cohousing also has costs associated with land acquisition, construction, consultants, and financing, cohousing developments "may incur extra expenses owing to a more lengthy design and approval process, a high level of customization, or any of numerous possible delays or setbacks"). But see Sarah Means, Housing Trend Builds Community Bonds, WASH. TIMES, July 25, 1997, at F1 (noting that homes in cohousing developments in the suburbs of Washington, D.C. sold for below or comparable prices to their county's average). Return to text.

[33] See Vizard, supra note 8. Return to text.

[34] See MCCAMANT & DURRETT, supra note 10, at 177. Return to text.

[35] See HANSON supra note 1, at 132-33; MCCAMANT & DURRETT, supra note 10, at 40-41; FROMM, supra note 10, at 233-38. Return to text.

[36] See MCCAMANT & DURRETT, supra note 10, at 41. More recent cohousing projects have increased the amount of common area in proportion to the size of residential units. Whereas the common property in European cohousing projects constituted 10-15% of the development, see FROMM, supra note 10, at 217, in America cohousing developments, the amount of indoor area held in common is typically over 40% in a 30 unit development. Currently, the size of the average common house has increased to 10,000 square feet (compared to the 1,500 square feet of cohousing's "first-generation" in Denmark), while the average size of individual private units has steadily declined to between 750 and 800 feet. See HANSON supra note 1, at 121-22. Return to text.

[37] See, e.g., Vizard, supra note 8 (describing how one cohousing resident first heard of the group's initial organizing meetings through a radio interview); Mirabella, supra note 2 (noting that the Pioneer Valley Cohousing group in Amherst, Massachusetts, began when its initial organizer placed an advertisement in a local newspaper); Higgins, supra note 32 (describing initial organizing meetings for a cohousing group in Newton, Massachusetts, attended by representatives from sixty-seven households). See generally HANSON, supra note 1, at 10 (describing the formation of a hypothetical cohousing group with a core group of friends soliciting additional members through fliers posted in grocery stores, laundromats, video stores, and public bulletin boards); FROMM, supra note 10, at 164-65 (describing how to "grow" a group through flyers and meetings with slide shows to explain the concept). Return to text.

[38] See, e.g., Kimberly H. Byrd, Past with a Future, HERALD-SUN (Durham, N.C.), Sep. 8, 1996, at G4 (describing the role of Charles and Carol Eilber in organizing, designing, and selling units in the Solterra community in Durham, North Carolina). The name that some in the cohousing community have given to such leaders is "burning soul," which was first used by Danish cohousing advocates "to describe a group member who has kept the vision alive when the goal seem[s] far away." MCCAMANT & DURRETT, supra note 10, at 230. In the early days of the cohousing movement in the U.S., McCamant and Durrett themselves were leaders in a number of the projects they helped develop in northern California. See id. at 208 (describing McCamant and Durrett's role in Muir Commons in Davis, California, the first cohousing project in the U.S.).

One cohousing advocate notes, however, that such leadership should ideally not come at the expense of group cohesion and responsibility. See HANSON, supra note 1, at 37. Return to text.

[39] See, e.g., Judith Evans, Cohousing, a Neighborly Thing to Do, WASH. POST, Jan. 27, 1996, at E1 (describing the changing membership of the Frederick [Maryland] Cohousing group over its six years of existence prior to the building of its development). Return to text.

[40] See, e.g., Evans, supra note 38 (describing how the Montgomery Upcounty Cohousing group in Maryland disbanded after the group failed to secure land during its three-year attempt to develop a cohousing community). Return to text.

[41] See MCCAMANT & DURRETT, supra note 10, at 161. Return to text.

[42] See FROMM, supra note 10, at 169. Return to text.

[43] See id. Return to text.

[44] See id.; HANSON, supra note 1, at 27-28. Return to text.

[45] See FROMM, supra note 10, at 169. But see HANSON, supra note 1, at 32-33 (advocating a "true consensus" approach in which the group decides whether to honor an individual dissenter, who has "the right to be heard but not to veto and the responsibility to accept the will of the group when a dissent is not accepted"). Return to text.

[46] See MCCAMANT & DURRETT, supra note 10, at 169; FROMM, supra note 10, at 169 Return to text.

[47] See FROMM, supra note 10, at 168-69. Return to text.

[48] See MCCAMANT & DURRETT, supra note 10, at 42 Return to text.

[49] See, e.g., id. at 53 (reproducing the Initial Organizing Agreement of the Sun and Wind Cohousing Organizing Group). Return to text.

[50] See, e.g., Vizard, supra note 8 (describing the process by which Greyrock Commons in Fort Collins, Colorado, began). Return to text.

[51] See, e.g., Evans, supra note 39 (describing the fate of Montgomery County Cohousing group in Maryland, which folded after its fifth attempt to secure a site failed when outbid by a private developer). Return to text.

[52] See MCCAMANT & DURRETT, supra note 10, at 39. Return to text.

[53] See id. (describing costs of meeting requirements of local ordinances, such as fire sprinklers and minimum numbers of parking spaces); Evans, supra note 39. Return to text.

[54] See, e.g., Higgins, supra note 32, at 3 (recounting successful efforts of "anxious" owners of neighboring property in Westborough, Massachusetts, to block a cohousing group's development). Return to text.

[55] See Peter Pochna, Development Values Community, PORTLAND PRESS HERALD, Jan. 25, 1996, at 1B. As one neighbor told a local newspaper, "It feels very much like it won't coincide with our community and our lifestyles. They are getting their own private little community, and we are losing ours." Id. Return to text.

[56] See id. Return to text.

[57] See Lunsford, supra note 8; Steve Liewer, Neighbors Battle Co-Housing Plan, SUN-SENTINEL (Fort Lauderdale) Oct. 11, 1996, at 1A. Return to text.

[58] MCCAMANT & DURRETT, supra note 10, at 39; see also Liewer, supra note 57 (describing Synergy Cohousing members' attempts to persuade neighbors and the local Land Use Advisory Board that "their community is not about flower children and free love"). Return to text.

[59] See Means, supra note 32. Return to text.

[60] See id. Return to text.

[61] See id. Many groups utilize different levels of membership before major expenditures begin to accrue. Puget Ridge Cohousing in Seattle, for example, had three levels before groundbreaking: full membership, which required investment of ten percent of the estimated cost of the individual unit; associate membership, which required payment of substantially less money and enabled the member to participate in decisions made at group meetings; and prospective membership, a level that required no investment (interested parties remained here until they attended five group meetings; participation in decisions or speaking was not allowed). See Marci Malinowycz, RE: membership building, Cohousing-l Electronic Mailing List [hereinafter Cohousing-l] (Dec. 1997) (visited Nov. 5, 1999) . Return to text.

[62] See Means, supra note 32. Return to text.

[63] See, e.g., Jennifer Greaney, Cohousing Plans Show a Future Look, SUNDAY TELEGRAM, [Worcester, Ma.], Mar. 24, 1996, at B1 (discussing a cohousing group in Grafton, Massachusetts, that is working with a developer). Return to text.

[64] See HANSON supra note 1, at 46; Vizard, supra note 8. Return to text.

[65] See Vizard, supra note 8. Return to text.

[66] See MCCAMANT & DURRETT, supra note 10, at 39. Return to text.

[67] See, e.g., Mike Malone, Working woth [sic] a developer, Cohousing-l, supra note 61 (May 1998); Rob Sandelin, Re: Re: Robs Conference Report, Cohousing-l, supra note 61 (archives Nov. 1994). Return to text.

[68] This section is based largely on the information made available to cohousing groups from cohousing-specific books and Internet sites detailing the legal experiences of established cohousing developments and providing suggestions for handling legal issues as they arise in the development process. See, e.g., HANSON, supra note 1; MCCAMANT & DURRETT, supra note 10; Sandelin & Suchman, supra note 17. Hanson is a cohousing developer; McCamant and Durrett, whose book is in its second edition, run a consulting group called the Cohousing Company; while Sandelin is an important presence in the national cohousing community and on the cohousing-l electronic mailing list.

These sources are well known among cohousing veterans, and newly interested parties are typically encouraged to read at least one of them. For examples of how people are referred to these guides, see the Charter of the Ecovillage Residents' Group, Ithaca, New York (Aug. 1992) [hereinafter Ecovillage Charter] (requiring that new members read the McCamant & Durrett book as part of the requirements for membership) and the Cohousing Web Page (visited Nov. 6, 1999) (characterizing Rob Sandelin's Cohousing Resource Guide, of which Sandelin & Suchman's legal guide are part, as an important resource).

Because of the complex set of legal and administrative contexts faced by groups in their state and municipal jurisdictions, these guides cannot and do not provide simple how-to instructions. Yet, in their descriptions of the general concerns that cohousing groups often address as they form and begin interacting as a unit, these guides introduce both the recurring issues that new groups can expect to face and successful approaches that groups have used in the past. The guides provide a practical, fairly conservative approach to the forms of legal agreements under which cohousing communities assign, share and respect property rights, make decisions, and resolve disputes. Return to text.

[69] HANSON, supra note 1, at 156. Return to text.

[70] Cf. Mary Frain, Joys in the 'hood; Neighbors Try Cohousing, SUNDAY TELEGRAM (Worcester, Massachusetts), Jan. 21, 1996, at B1 (describing failure of one cohousing group because of lack of sufficient trust among members to invest in the project). Return to text.

[71] See HANSON, supra note 1, at 163-64 (reproducing the initial organizing agreement of Winslow Cohousing Group of Bainbridge Island, Washington); MCCAMANT & DURRETT, supra note 10, at 164 (listing the necessary contents of the basic initial organizing agreement for cohousing groups). Return to text.

[72] See HANSON, supra note 1, at 156; MCCAMANT & DURRETT, supra note 10, at 164; Sandelin & Suchman, supra note 17. Return to text.

[73] See, e.g., HANSON, supra note 1, at 163 (reproducing initial organizing agreement of Winslow Cohousing Group of Bainbridge Island, which includes a section committing the group to a "consensus-seeking" decision-making process); id. at 262-63 (reproducing a provision for cooperative decision-making in "prototypical" cohousing bylaws); id. at 265-66 (reproducing a provision for consensus decision-making in Operating Guidelines of Victoria Cohousing Development Society in Victoria, British Columbia). Return to text.

[74] See MCCAMANT & DURRETT, supra note 10, at 164-65. Cohousing guides suggest different types of corporations for cohousing groups. Sandelin & Suchman assert that the nonprofit corporation is "the most common form of association used by cohousing groups." Sandelin & Suchman, supra note 17. Furthermore, the nonprofit corporation is "by far the most common" form of organization for community associations in general. See FRENCH & HYATT, supra note 3, at 34. Chris Hanson, however, asserts that the standard, for-profit corporation is the simplest and most flexible form of organization and is most likely to be recognized and approved by lending institutions. See HANSON, supra note 3, at 158-59. On the problems of partnership agreements for cohousing groups, see id. at 157 (noting that because of the diversity of individual members' financial capacities and knowledge, and their differing abilities to take risks, the shared responsibilities and liabilities of partnerships make the form less attractive and logical for cohousing groups). Return to text.

[75] See HANSON, supra note 1, at 177-79. Return to text.

[76] See generally HANSON, supra note 1. Return to text.

[77] See NATELSON, supra note 3, § 1.2, at 13. Return to text.

[78] See HYATT, supra note 3, §1.05(a)(2), at 12. Return to text.

[79] See Barton & Silverman, supra note 25, at 3. Return to text.

[80] See FRENCH & HYATT, supra note 4, at 41. Return to text.

[81] See DILGER, supra note 25, at 16-20; HYATT, supra note 3, § 1.05(c)(1), at 20. In 1990, 61% of community associations were organized as condominiums, and 35% were organized as homeowners associations. See DILGER, supra note 25, at 19. Return to text.

[82] In 1990, only 1% of community associations were organizations as cooperatives. See DILGER, supra note 25, at 19. This figure might be somewhat higher, as it was based upon membership in the Community Association Institute, an organization in which smaller common development communities and those located in New York, where groups are more likely to be organized as cooperatives, are underrepresented. See id. at 123-24. Return to text.

[83] See FRENCH & HYATT, supra note 4, at 23. On the general differences between condominium and cooperative, see RICHARD R. POWELL & PATRICK J. ROHAN, POWELL ON REAL PROPERTY § 54A.01(6) (1998). On the different tax, financing, and securities implications of the cooperative form see PAUL GOLDSTEIN & GERALD KORNGOLD, REAL ESTATE TRANSACTIONS 532-34 (1997). Return to text.

[84] See MCCAMANT & DURRETT, supra note 10, at 235-36. Cohousing is similar in this regard to the majority of private housing development in the U.S., where the cooperative form "has been outstripped in usage by the condominium in virtually every section of the country, with the possible exception of New York State." 4 THOMPSON ON REAL PROPERTY §36.05(b) (David A. Thomas ed., 1994). Return to text.

[85] Sandelin & Suchman, supra note 17. The same authors warn, however, that in markets where condominiums have been overbuilt, they can be undervalued. Moreover, in some states, restrictive condominium statutes set monthly maintenance fees and dictate voting percentages based upon the size of the unit. This might burden a consensus decision-making process which is based upon similarly weighted ability to assent to or block proposals. See id. Return to text.

[86] See HYATT, supra note 3, §7.02, at 356. Return to text.

[87] See FRENCH & HYATT, supra note 4, at 35. Return to text.

[88] See Rob Sandelin, RE: Daily Management and CC&R's, Cohousing-1, supra note 61 (Sept. 1996). Return to text.

[89] See, e.g., Nahrstedt v. Lakeside Village Condominium Ass'n, Inc., 878 P.2d 1275, 1290 (Cal. 1994) (holding that a restriction placed in the CC&Rs will be "presumed to be reasonable and enforced uniformly against all residents of the [CIC] unless the restriction is arbitrary," imposes burdens that outweigh the benefit to the community, or violates public policy). Return to text.

[90] See, e.g., Rob Sandelin, RE: Daily Management and CC&R's, Cohousing-1, supra note 61 (Sept. 1996). Return to text.

[91] See id. Return to text.

[92] See FRENCH & HYATT, supra note 4, at 36. Return to text.

[93] For a discussion of the role of bylaws in cohousing generally, see Sandelin & Suchman, supra note 17. See also HANSON, supra note 1, at 261-64 (providing bylaws for a "prototypical" cohousing group, which outlines qualifications of members, dues and fees, rules for meetings, outlining decision-making process, establishing and describing a management board, giving duties of secretary and treasurer, and making provisions for adoption, amendment, and appeal of the bylaws). On the decision as to whether to record the bylaws with the declaration in the local land records, see FRENCH & HYATT, supra note 4, at 36 (noting the advantages under some state laws of recording bylaws). Return to text.

[94] See Sandelin & Suchman, supra note 17. Return to text.

[95] Restrictions on the transfer of units in a cooperative may include requiring the cooperative's approval of a prospective buyer, see, e.g., 1050 Tenants Corp. v. Jakobson, 365 F. Supp. 1171, 1172 (S.D.N.Y. 1973), aff'd, 503 F.2d 1375 (2nd Cir. 1974); B.C. Ricketts, Annotation, Transfer of, and Voting Rights in, Stock of Co-op. Apartment Association, 99 A.L.R.2d 236, 238 (1965), or a preemptive right of the cooperative association to purchase the unit, see Gale v. York Center Community Coop., Inc., 171 N.E.2d 30, 32 (Ill. 1960); Sanders v. The Tropicana, 229 S.E.2d 304, 306 (N.C. Ct. App. 1976). Return to text.

[96] See Sandelin & Suchman, supra note 17. Return to text.

[97] See id. Return to text.

[98] See generally PATRICK J. ROHAN & MELVIN A. RESKIN, COOPERATIVE HOUSING LAW AND PRACTICE (1990). Return to text.

[99] See Sandelin & Suchman, supra note 17. Return to text.

[100] See MCCAMANT & DURRETT, supra note 10, at 235-36. Return to text.

[101] The Ecovillage Cohousing Cooperative in Ithaca, New York does attempt to recapture some of the increase in value in property through a "flip tax" on every sale, but does not limit a seller's asking price. See infra note 235 and accompanying text. Return to text.

[102] For an account of a group of limited equity cooperatives in California owned and occupied by low- and middle-income households arguing that the limited equity form, at least in this context, provides greater opportunities for direct democracy and a vibrant, if at times highly contentious, community, see Allan David Heskin & Dewey Bandy, Community and Direct Democracy in a Limited-Equity Cooperative, in COMMON INTEREST COMMUNITIES 192, 192-209 (Stephan E. Barton & Carol J. Silverman, eds. 1994). Return to text.

[103] See HANSON, supra note 1, at 159-160; MCCAMANT & DURRETT, supra note 10, at 235. Return to text.

[104] See MCCAMANT & DURRETT, supra note 10, at 165. Return to text.

[105] These powers rely largely upon the use of liens against property — a substantial power, given the financial and emotional investment that owners make in a primary residence, but not equivalent to, say, the powers of incarceration or eminent domain that sovereign governments enjoy. See NATELSON, supra note 3, § 3.4.2, at 96-97. See, e.g., Telluride Lodge Ass'n v. Zoline, 707 P.2d 998, 1000 (Colo. Ct. App. 1985), rev'd on other grounds, 732 P.2d 635 (Colo. 1987) (upholding association's foreclosure on liens placed on homeowners who refused to pay assessment). Return to text.

[106] These covenants run with the land. See, e.g., Lake Wauwonoka, Inc. v. Spain, 622 S.W.2d 309, 312-13 (Mo. Ct. App. 1981) (finding the basis of the contract for assessment of members of association to be an affirmative covenant that runs with the land); Neponsit Property Owners' Ass'n, Inc. v. Emigrant Industrial Savings Bank, 15 N.E.2d 793, 795 (N.Y. 1938) (confirming that assessment covenants run with the land). Return to text.

[107] See NATELSON, supra note 3, § 3.4.3, at 98-101; see also UNIF. COMMON INTEREST OWNERSHIP ACT § 3-116 (1994) (enabling lien on property for late assessment payment). See, e.g., OKLA. STAT. ANN. tit. 60, § 524(a) (1994) (enabling condominium association to enforce unpaid assessments through a lien on property); FLA. STAT. § 718.116(5) (1999) (enabling condominium association to enforce assessment with lien, but requiring recorded notice of lien). Return to text.

[108] See NATELSON, supra note 3, § 3.4.3, at 97-98. Like cities, CICs elect representative governing bodies, raise funds for repair, maintenance, and improvements, and regulate and maintain bounded tracts of land. See Robert C. Ellickson, Cities and Homeowners Associations, 130 U. PA. L. REV. 1519, 1522-23 (1982); Wayne S. Hyatt & James B. Rhoads, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 WAKE FOREST L. REV. 915, 918 (1976). Yet, unlike with the sovereign power of the surrounding city, the CIC cannot use force upon those under its jurisdiction beyond its boundaries, condemn property, redistribute wealth, and enjoy sovereign immunity (unless waived). See NATELSON, supra note 3, at § 11.1, at 490. Return to text.

[109] See id. Some groups do not collect the decisions they make about rules within a single document, relying instead upon meeting minutes for their institutional memory. See id. Return to text.

[110] Sandelin & Suchman, supra note 17. Return to text.

[111] See id. Return to text.

[112] HANSON, supra note 1, at 165. Return to text.

[113] See id. Return to text.

[114] Id. at 166. Return to text.

[115] See, e.g., Sandelin & Suchman, supra note 17. Return to text.

[116] Id. Return to text.

[117] See Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129, 132 (1998). Return to text.

[118] See CAROL M. ROSE, PROPERTY & PERSUASION 149-50 (1994). Return to text.

[119] See MCCAMANT & DURRETT, supra note 10, at 224. Return to text.

[120] See id. at 217. Return to text.

[121] See id. Return to text.

[122] See id. Return to text.

[123] See id. at 218. Return to text.

[124] See id. Return to text.

[125] See id. Return to text.

[126] See id. at 219. Return to text.

[127] See id. Return to text.

[128] See Stefan Fatsis, A Shared Experience: Cohousing Emerges As A '90s Alternative Suburban Lifestyle, CHI. TRIB., Feb. 25, 1996, at 3I. Return to text.

[129] See HYATT, supra note 3, § 4.02(c), at 85-88. Return to text.

[130] See MCCAMANT & DURRETT, supra note 10, at 219-22. Return to text.

[131] See id. Return to text.

[132] Id. at 223. Return to text.

[133] Telephone interview with Joani Blank, resident of Doyle Street Cohousing (May 4, 1998). Return to text.

[134] See MCCAMANT & DURRETT, supra note 10, at 223. On the history and operation of FNMA and the secondary mortgage market generally, see Robin Paul Malloy, The Secondary Mortgage Market—A Catalyst for Change in Real Estate Transactions, 39 SW. L. J. 991, 992-95, 1001-10 (1986). On the growing importance of the secondary market and the resale of mortgages by local banks on the national and international markets, see Michael H. Schill, Uniformity or Diversity: Residential Real Estate Finance Law in the 1990s and the Implications of Changing Financial Markets, 64 S. CAL. L. REV. 1261, 1272 (1991). Return to text.

[135] See Certificate of Amendment of Articles of Incorporation, (Mar. 1992) (on file with author) (amending Articles of Incorporation of Doyle Street Cohousing Community Association, Feb. 10, 1992, to change the name of the corporation to Doyle Street Condominium Association). Return to text.

[136] MCCAMANT & DURRETT, supra note 10, at 223-24. Return to text.

[137] See Articles of Incorporation of Doyle Street Cohousing Community Association (Feb. 1992) (on file with author). Return to text.

[138] See Doyle Street Condominiums, Declaration of Restrictions and Declaration Establishing a Plan of Condominium Ownership § 1.5 (Mar. 1992) (on file with author) [hereinafter Doyle Street Declaration]. Return to text.

[139] See id. § 1.6. Return to text.

[140] Provisions allowing the developer to retain initial voting control over a condominium or homeowners' association are included in the applicable uniform act, see UNIF. COMMON INTEREST OWNERSHIP ACT §103(d)-(e) (allowing phase out of developer control according to the percentage of units sold and a set date), and have also been upheld by courts, see, e.g., Investors Limited of Sun Valley v. Sun Mountain Condominiums, Phase I, Inc. Homeowners Ass'n, 683 P.2d 891, 894 (Idaho Ct. App. 1984) (holding developer voting control for a certain time period after completion to be legitimate); Barclay v. Deveau, 429 N.E.2d 323, 326-27 (Mass. 1981) (holding that absent overreaching or fraud, developer and unit owners may include provisions for initial developer control in CC&Rs). See also HYATT, supra note 3, § 7.06(a)(14), at 402 (providing and discussing sample provision). Return to text.

[141] See Doyle Street Declaration, supra note 138, § 5.4(ii)(a) & (b) Return to text.

[142] See Telephone interview with Joani Blank, supra note 133. Return to text.

[143] See Doyle Street Declaration, supra note 138, § 3.3(iii). Return to text.

[144] See id. § 10.11. Return to text.

[145] See Doyle Street CoHousing Community Unit Owner's Participation Agreement (on file with author). Return to text.

[146] See id. Return to text.

[147] See Joani Blank, Responsibilities of Renters, Cohousing-l, supra note 61 (Jan. 1998). Return to text.

[148] Joani Blank, Re:Who gets to vote?, Cohousing-l, supra note 61 (April 1998). Return to text.

[149] See id. Return to text.

[150] In the words of one original resident of Doyle Street who regularly rents out a room in her unit:

[a]s to someone's concerns that renters will not be as respectful of the property or as concerned about it, I think there is enough experience in cohousing to strongly suggest that when in Rome, most people do as the Romans, and when renters and owners all know one another quite well, as we typically do in cohousing, there is a sense of belonging and "ownership" of the community life, that is shared to some extent by everyone who lives there. Whether someone owns or rents his/her home seems unrelated to how engaged that person is in the life of the community.

Joani Blank, Re: Renters, Cohousing-l, supra note 61 (Feb. 1998). Return to text.

[151] See Telephone interview with Joani Blank, supra note 133. The precise content of the orientation, and the degree of participation expected of short-term renters, however, are continually being rewritten. See id. Return to text.

[152] See Doyle Street Bylaws, § 6.8 (Feb. 1992) (on file with author). Return to text.

[153] See id. § 7.7 Return to text.

[154] See id. Return to text.

[155] See id. § 7.8. Return to text.

[156] See Doyle Street Declaration, supra note 138, § 12.17(iii). If unable to agree on a mediator, the parties each nominate a representative who, working with each other, selects the mediator. See id. Evidence produced for the purposes of the mediation is to be excluded from any future court proceedings or arbitration hearings, pursuant to the Declaration. See id. § 12.17(iii)(i); see also CAL. EVID. CODE § 1152.5(c) (West 1997) (excluding evidence made in the course of mediation from court proceedings, except for documents explicitly providing otherwise). Return to text.

[157] See Doyle Street Declaration, supra note 138, § 12.17(iii); CAL. CIV. P. CODE §§ 638-645.1 (West 1997). Return to text.

[158] See Doyle Street Declaration, supra note 138, § 12.17(iii). Return to text.

[159] See Tina Cassidy, A New View of Neighborhood: Acton Cohousing Community Seeks to Recreate Life in Small-town America, BOSTON GLOBE, Oct. 1, 1995, at Real Estate A1. Return to text.

[160] See id. Return to text.

[161] See id. Return to text.

[162] See id. Return to text.

[163] See id. Return to text.

[164] See id. Return to text.

[165] See id. Return to text.

[166] See Fatsis, supra note 128. Return to text.

[167] See id.

168 See id. Return to text.

[169] See id.; Joan O'Brien, New View of Housing Neighborhood Near Boston Epitomizes Cohousing Ideals, SALT LAKE TRIB., May 5, 1996, at J1. Return to text.

[170] See Fatsis, supra note 128. Return to text.

[171] See Jim Snyder-Grant, Re: Membership sale agreement questions, Cohousing-l, supra note 61 (archives April 19, 1994). Return to text.

[172] See id. Return to text.

[173] See id. Return to text.

[174] See id. Return to text.

[175] Jim Snyder-Grant, Re: membership building, Cohousing-l, supra note 61 (Oct. 1997). Return to text.

[176] See Master Deed, New View Condominium (1993) (on file with author). Return to text.

[177] See MASS. GEN. LAWS ANN. ch. 183A, § 12 (c) (West 1997). Return to text.

[178] Master Deed, New View Condominium, supra note 176, § 16. Return to text.

[179] See id. When owners wish to sell their units, they must provide written notice to the condominium trustees of the price, terms, and conditions they have accepted or would be willing to accept from a purchaser. The trustees then have thirty days to exercise an option to buy at the same price and under the same terms and conditions, and the condominium association has a duty to complete the purchase of the property "promptly and properly." Id. Before exercising the right of first refusal and purchasing a unit, all of the individual owners must give prior approval. See Declaration of Trust, New View Condominium, § 6.9 (1993) (on file with author). Return to text.

[180] See Master Deed, New View Condominium, supra note 176, § 17(a)(3). On the necessity of this provision for lender approval of residents' mortgage applications, see Jim Snyder-Grant, Re: Resale of units (right of first refusal), Cohousing-l, supra note 61 (Dec. 1997). Return to text.

[181] See Jim Snyder-Grant, Re: In a nutshell!, Cohousing-l, supra note 61 (Feb. 1998). One longtime cohousing resident argues, however, that screening would-be entrants is unnecessary because only those already interested in and committed to cohousing will purchase a unit in a cohousing development. See Joani Blank, Re: Members Leaving Cohousing Groups, Cohousing-l, supra note 61 (Feb. 1998). Some existing cohousing developments do not keep waiting lists, under the assumption that interested buyers are self-selected. See Marci Malinowycz, RE: Selling Units after move-in, Cohousing-l, supra note 61 (Dec. 1997) (written by Tom Whitmore) (noting, however, that would-be buyers of units at Puget Ridge in Seattle, Washington are expected to attend at least one meeting and meal, and that the group has used its right of refusal once to allow a member to move to a unit of a different size). Return to text.

[182] Master Deed, New View Condominium, supra note 176, § 10(a)(iv). Return to text.

[183] Declaration of Trust, New View Condominium, supra note 179, § 2.1. Return to text.

[184] See MASS. GEN. LAWS ANN. ch. 183A, § 10(b) (West 1997) (describing the rights and powers of the corporation, trust or association over the condominium). Return to text.

[185] Declaration of Trust, New View Condominium, supra note 179, § 2.2. Return to text.

[186] Id. § 2.2(i). Return to text.

[187] Id. §2.2(ii). Return to text.

[188] Id. § 2.2(iv). Return to text.

[189] Id. § 2.2(v). Return to text.

[190] Id. § 2.2(vi). Return to text.

[191] See, e.g., HYATT, supra note 3, §7.06(a), at 380-413 (providing sample provisions for condominium declaration, which include definitions of common elements and the rights and responsibilities of declarant-developer and individual unit owners). Return to text.

[192] Declaration of Trust, New View Condominium, supra note 179, Art. III. Return to text.

[193] See id. Return to text.

[194] See id. Return to text.

[195] After three failed attempts to come to a consensus on a proposal (a process that must be given at least thirty minutes each time), any participant may move to vote. If two-thirds agree, then a vote is taken among eligible participants, with the requirements that the proposal passes with at least a two-thirds vote. If no vote is taken, the proposal continues to be discussed at meetings until consensus is reached or a vote is taken. If the proposal concerns an especially urgent matter, the group can call an emergency meeting, without the notice requirement of seven days before a meeting can be held. See id. Return to text.

[196] See Jim Snyder-Grant, Re: consensus (when to skip it), Cohousing-l, supra note 61 (March 1999). Return to text.

[197] See Declaration of Trust, New View Condominiums, supra note 179, § 10.2 (1993). Return to text.

[198] See EcoVillage Cohousing Cooperative (visited Nov. 10, 1999) . Return to text.

[199] See The EVA Times (last modified Aug. 9, 1999) . EcoVillage at Ithaca, Inc. (EVI), which sold the land upon which EVCC sits and continues to own the surrounding land, is a not-for-profit foundation with ties to Cornell University's Center for Religion, Ethics, and Social Policy. See id. Fifty of the acres at EVI were given to the Finger Lakes Land Trust as a conservation easement, which limits building on the parcel to lean-tos, agriculture structures, and a research/education/visitor center. Currently, West Haven Farm, a Community Supported Agriculture project committed to sustainable, organic agriculture, is located on the easement property, and this and other agricultural uses are permitted by the easement. EcoVillage at Ithaca may add other portions of the land to the conservation easement in the future. See Betsy Darlington, EcoVillage Donates Conservation Easement, (visited Nov. 10, 1999) . Return to text.

[200] Another cohousing development, called the Second Neighborhood Group (SoNG), has been in the planning stages since August 1996, see The EVA Times, supra note 199, and holds regular meetings on-site, see SoNG: Second Neighborhood Group of EcoVillage at Ithaca (last modified Aug. 9, 1999) . A third group is just beginning to form through the efforts of a private developer. See Ecovillage at Ithaca, Neighborhood IIII [sic] (visited Nov. 10, 1999) . Return to text.

[201] See The EVA Times, supra note 199. Return to text.

[202] See Max Lindegger, Crystal Waters Permaculture Village, in ECO- VILLAGES AND SUSTAINABLE COMMUNITIES, MODELS FOR 21ST CENTURY LIVING 18-19 (Jillian Conrad ed. 1995). Return to text.

[203] See HANSON, supra note 1, at 4. Return to text.

[204] John Poteet (aka porcupin), Re: Cohousing Groups Calling Themselves Ecovillages, Cohousing-1, supra note 61 (Feb. 1999). Return to text.

[205] See id. Return to text.

[206] See Ecovillage Cohousing Cooperative, supra note 198. Return to text.

[207] See id. Return to text.

[208] See id. Return to text.

[209] See id. Return to text.

[210] See Vizard, supra note 8. Return to text.

[211] See id. Return to text.

[212] See Ecovillage Cohousing Cooperative, supra note 198. Return to text.

[213] See id. Return to text.

[214] See Bylaws of Ecovillage Cohousing Cooperative, Art. III, §1 (on file with author). Return to text.

[215] Interview with Susan McGrievy, resident of Ecovillage Cohousing Community, in Ithaca, N.Y. (Feb. 14, 1998). Return to text.

[216] See id. Return to text.

[217] See id. Return to text.

[218] See Ecovillage Charter, supra note 68. Return to text.

[219] See id. § 6. Return to text.

[220] See id. § 7.1. Return to text.

[221] See id. § 2. Return to text.

[222] See EcoVillage at Ithaca, Guidelines for Development (Oct. 1993) (on file with author). Return to text.

[223] See id. Return to text.

[224] See id. Return to text.

[225] See id. Return to text.

[226] First Resident Group of Ecovillage at Ithaca Joint Venture Agreement (on file with author) [hereinafter EVCC Joint Venture Agreement]. Return to text.

[227] First Residents' Group of Ecovillage at Ithaca Amended Joint Venture Agreement, (May 1993) (on file with author) [hereinafter EVCC Amended Joint Venture Agreement]. Return to text.

[228] Both documents defined the roles and rights of membership differently. They described the rights and responsibilities of members in terms of three separate conceptual terms. Both included the notion of "responsible parties" (those who have signed the joint venture agreement and met with all of its conditions), as "households" (the individual or group of individuals who will occupy one unit in the development). They differ, however, in their third term: where the original agreement used the concept of "membership" as a generic term referring to those who participated in the development, the amended agreement used the term "household member" to describe the individual of each unit designated as a voting member. In addition, the amended agreement defined responsible parties as the "consensus pool" and the right of the household as the "housing slot," the "reservation of the right to build a living unit" in the development. See EVCC Joint Venture Agreement, supra note 226, § 4; EVCC Amended Joint Venture Agreement, supra note 227, § 5. Return to text.

[229] The original JVA required a contribution of $2,000 from each household. See EVCC Joint Venture Agreement, supra note 226, § 7(b). By the time of the AJVA, the joint venture was estimating that by October 1994 the group would have to commit to $145,000 in investments, split between no more than twenty members. See EVCC Amended Joint Venture Agreement, supra note 227, §§ 9(m), (n). Return to text.

[230] Both agreements only allowed withdrawal when the number of households reached a certain level (fifteen in the original agreement; twenty in the amended agreement). See EVCC Joint Venture Agreement, supra note 226, § 19(a); EVCC Amended Joint Venture Agreement, supra note 227, § 11(a). Both offered reimbursement of funds put into the venture only upon the investment of a new household, the closing of construction financing, or the sale of the joint venture asset by the withdrawing household. See EVCC Joint Venture Agreement, supra note 226, §§ 19(a)-(c); EVCC Amended Joint Venture Agreement, supra note 227, §§ 11(c)(i)- 11(c)(I)-(iii). Both agreements expressly stated that no interest would be paid to a withdrawing household. See EVCC Joint Venture Agreement, supra note 226, § 19(d); EVCC Amended Joint Venture Agreement, supra note 227, § 11(d). Return to text.

[231] See EVCC Amended Joint Venture Agreement, supra note 227, § 13. The later agreement limited full membership in the group to twenty because of concerns that the development would not receive approval for more than twenty units. The "Escrow Account Waiting List" enabled the identification and participation of households beyond this limit and set two levels. "Peepers," were at the top of the waiting list and were required to deposit the amount assessed against all full members of the group and had full rights to participate in meetings and block consensus. "Tadpoles" paid $2,000 (the amount required by the original joint venture agreement), attended and spoke at meetings, but could not block consensus. Tadpoles were allowed to exit freely from the group and receive their original contribution, while the Peepers were forced to agree in writing not to withdraw funds from the escrow account unless they were informed that no housing slot would be available to them. See id. §§ 13A-B. Return to text.

[232] See id. § 7(a). Return to text.

[233] See id. § 7(c). Return to text.

[234] Certificate of Incorporation of Ecovillage Cohousing Cooperative, Inc., § 17 (May 1995) (on file with author). Return to text.

[235] See id. § 17(b). Return to text.

[236] See Proprietary Lease of Ecovillage Cohousing Cooperative, Inc., § 51(d) (on file with author). Return to text.

[237] See Certificate of Incorporation of Ecovillage Cohousing Cooperative, Inc., supra note 234, § 17(c). Return to text.

[238] The selling shareholder must present the proposed purchaser to the board, and must attempt to have the buyer meet other shareholders "over the course of several days." Proprietary Lease of Ecovillage Cohousing Cooperative, Inc., supra note 236, § 48(b). Return to text.

[239] See id. § 48(c). The vote must take place within ten days of the Board's receipt of a written intent to transfer. See id. § 48(d). Return to text.

[240] See id § 49(a). Return to text.

[241] See id. Return to text.

[242] See id. §§ 50(a), (b). Return to text.

[243] See id. §§ 51(d), (e). As per the proprietary lease, the flip tax policy was to be reviewed by shareholders no earlier than one year after all thirty units had been occupied, and could be reviewed and amended by the directors at their discretion at any time thereafter. See id. § 51(f). Return to text.

[244] See id. § 38(a). Return to text.

[245] Id. § 38(b). Return to text.

[246] See id. § 40(b). Return to text.

[247] Id. § 40(c). Return to text.

[248] See id. § 40(d). Return to text.

[249] This power is limited by New York law that prohibits a cooperative from withholding consent to the sale of stock because of "the race, creed, national origin, or sex of the purchaser." N.Y. CIV. RIGHTS LAW § 19-a (McKinney 1999). In other contexts in which participants assume collective control, such as in producer cooperatives, the ability to choose new participants is essential to the control of the community and to the creation of a sense of a shared "common life." MICHAEL WALZER, SPHERES OF JUSTICE 162 (1983). Yet the control of entry into a cohousing community may, of course, be relatively unimportant. It is likely that prospective buyers would already know about the responsibilities of cohousing ownership (and, if not, would be so informed by the sellers). They may also be aware that the price of entry into a cohousing project with extensive common facilities would likely be higher than similar properties not affiliated with a cohousing development, whether due to comparative cost of an individual unit or the increased demands of community participation. See id. Accordingly, prospective entrants would already be self-selected. In addition, the norms of a cohousing community would make it unlikely that a departing member would attempt to sell her property to an unwitting and seemingly "unsuitable" (in the sense of seeming unprepared or unwilling to participate in the community) buyer. Return to text.

[250] See Henry Hansmann, Condominium and Cooperative Housing: Transactional Efficiency, Tax Subsidies, and Tenure Choice, 20 J. LEGAL STUD. 25, 31-32 & n. 15 (1991). Return to text.

[251] See William H. Simon, Social-Republican Property, 38 UCLA L. REV. 1335, 1409-10 (1991) (arguing that institutions that choose their own members may base their decisions on "surface" similarities between applicant and group, thereby losing the opportunity for "deeper understandings and associations" that arise in such chance circumstances as the archetypal military combat unit). Return to text.

[252] Charter and Bylaws of the First Residents' Group, Ecovillage at Ithaca, N.Y. § 10.1, (Mar. 1994) (on file with author). Return to text.

[253] See id. § 10.5. Return to text.

[254] Id. § 10.5.5. Return to text.

[255] Id. § 10.5.6. Return to text.

[256] See Bylaws of Ecovillage Cohousing Cooperative, Inc., Art. VII, § 7 (on file with author). Return to text.

[257] See id. Art. VII, § 11. Return to text.

[258] See id. Art. XVI, § 2(a)(i). Return to text.

[259] Id. Art. XVI, § 2(a)(ii). Return to text.

[260] See id. Art. XVI, § 3. Return to text.

[261] See supra note 158 and text accompanying. Return to text.

[262] Wayne S. Hyatt, Common Interest Communities: Evolution and Reinvention, 31 J. MARSHALL L. REV. 303, 311 (1998) (quoting letter from Brent Herrington, Celebration Community Manager and President of CAI Research Foundation, to Charles Fraser and to author (July 26, 1997)). Return to text.

[263] Ellickson, supra note 108, at 1526-27; see also Richard Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S. CAL. L. REV. 1353, 1354 (1982) (arguing that because of the volitional nature of the covenants creating community associations, courts should provide rigid and ready enforcement of servitudes as an essential protection of rights of contract and property). Return to text.

[264] Gillette, supra note 16, at 1381. Indeed, developers themselves see this "good" as a community, perceiving residential association as "the 'engine' and platform for social, recreational, and civic activities." Hyatt, supra note 262, at 311. Return to text.

[265] MCKENZIE, supra note 23, at 26. Return to text.

[266] See id. at 12, 18. Critics especially decry those CICs that separate themselves from their surroundings by gates. See, e.g., EDWARD J. BLAKELY & MARY GAIL SNYDER, FORTRESS AMERICA: GATED COMMUNITIES IN THE UNITED STATES (1997). So-called "gated communities" are especially popular in California, where an estimated nine out of every ten new middle- and upper-income housing developments are "forking up" as gated communities by erecting walls and secured fences. See PETER SCHRAG, PARADISE LOST: CALIFORNIA'S EXPERIENCE, AMERICA'S FUTURE 118 (1998). Return to text.

[267] See, e.g., James L. Winokur, Choice, Consent, and Citizenship in Common Interest Communities, in COMMON INTEREST COMMUNITIES: PRIVATE GOVERNMENTS AND THE PUBLIC INTEREST 87, 98 (Stephen E. Barton & Carol J. Silverman, eds. 1994); Gregory S. Alexander, Freedom, Coercion, and the Law of Servitudes, 73 CORNELL L. REV. 883, 894 (1989). See also Uriel Reichman, Residential Private Governments: An Introductory Survey, 43 U. CHI. L. REV. 253, 285-88 (1976) (criticizing continued developer control throughout most of the sales period by virtue of various vote-weighting procedures contained in the declaration). Return to text.

[268] See Winokur, supra note 267, at 98-99; Winokur, supra note 5 and accompanying text. Return to text.

[269] See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1843, 1860 (1994). Return to text.

[270] See, e.g., DILGER, supra note 25, at 137-39. Furthermore, unit owners who become unhappy with servitudes face the difficult choice of an expensive and difficult exit through sale or grudging compliance with the rules of the community. See Alexander, supra note 267, at 888. Return to text.

[271] For an argument that CICs infringe the constitutional rights of their members and therefore should be deemed state actors, see Steven Siegel, The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty Years After Marsh v. Alabama, 6 WM. & MARY BILL RTS. J. 461, 555-58 (1998). For an argument that residential associations infringe upon the constitutional rights of non-members and should therefore be treated as state actors, see David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 YALE L. J. 761, 790-91 (1995). In addition, one commentator has argued that judges should treat the typical CC&Rs of CICs as contracts of adhesion. See Evan McKenzie, Reinventing Common Interest Developments: Reflections on a Policy Role for the Judiciary, 31 J. MARSHALL L. REV. 397, 421-22, 426-27 (1998). Return to text.

[272] See McKenzie, supra note 271, at 420-21 (distinguishing consent to be governed and assent to contract). Return to text.

[273] See id. Return to text.

[274] Garrett Hardin's original solutions to the "tragedy of the commons" were either to assign property rights to commonly held land or to socialize it. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1244 (1968). For an excellent critique that identifies the limited common property model as disproof of Hardin's overbroad thesis, see David Feeny et al., The Tragedy of the Commons: Twenty-Two Years Later, 18 HUMAN ECOLOGY 1 (1990). Return to text.

[275] Rose, supra note 117, at 132; see also Robert C. Ellickson, Property in Land, 102 YALE L. J. 1315, 1398 (1993) (describing homeowners' associations as limited-access commons). Return to text.

[276] See Feeny et al., supra note 274, at 5, 10, 11 (providing numerous examples of limited common property regimes throughout human history and around the world); Rose, supra note 117, at 177-79 (describing limited common property regimes in American history and law); GLENN G. STEVENSON, COMMON PROPERTY ECONOMICS 47-48 (1991) (describing successful limited common property regimes). Return to text.

[277] See Elinor Ostrom, Covenants, Collective Action, and Common-Pool Resources, in THE CONSTITUTION OF GOOD SOCIETIES 23, 25 (Karol Edward Soltan & Stephen L. Elkin eds., 1996). Return to text.

[278] See id. Return to text.

[279] See Elinor Ostrom, Institutional Arrangements for Resolving the Commons Dilemma, in THE QUESTION OF THE COMMONS 250, 250 (Bonnie J. McCay & James M. Acheson eds., 1987). Return to text.

[280] "Boundaries structure relationships. But they structure them badly, in part because boundary imagery masks the existence of relationships and their centrality to concepts like property and privacy." Jennifer Nedelsky, Law, Boundaries, and the Bounded Self, in LAW AND THE ORDER OF CULTURE 162, 177-78 (Robert Post ed., 1991). The boundaries protecting the internal cohousing community, constructed through contract and property ownership or rental, mask the relationship between the internal community and the individuals and groups that exist outside. The same could be said of cohousing's design, which is based upon the interaction of residents with each other within commonly held, but still private, spaces, notwithstanding possible "gestures" to the surrounding neighborhood such as architectural compatibility and shared pedestrian paths. See FROMM, supra note 10, at 218 (suggesting a "range of gestures" to create an inclusive "public edge" of the cohousing community). Return to text.

[281] See generally Nedelsky, supra note 280, at 178-182. Return to text.

[282] See MCKENZIE, supra note 23, at 18. Return to text.

[283] Relative homogeneity is in some respects likely to be an asset for the stability and long-term survival cohousing groups. Shared preferences and understandings about the community's goals and operations, as well as the development of norms of reciprocity and trust — which are more likely to arise within relatively homogeneous groups — will aid in the creation of group social capital, "the shared knowledge, understandings, and patterns of interaction that a group of individuals brings to any productive activity." Ostrom, supra note 277, at 31-33. Return to text.

[284] Cohousing residents are typically white, relatively wealthy, well educated professionals who have already owned a house and are free of debt. See HANSON, supra note 1, at 196-97. Approximately 13% of residents in existing cohousing communities in the U.S. are nonwhite, although cohousing groups do include a range of ages among their residents, attracting both couples with small children and "empty nesters," adults whose grown children have moved away from home. See id. at 196-97 (listing the general demographic profile of people interested in cohousing); MCCAMANT & DURRETT, supra note 10, at 144 (on demographic trends in European cohousing, which shows an increase in elderly populations). Return to text.

[285] Some existing cohousing groups have attempted to address cohousing's exclusivity, as it manifests in the movement's relative lack of diversity. Their attempts, which have ranged from self-imposed mechanisms to enhance ethnic and racial diversity, to employing government programs that either require or reward the inclusion of affordable homes, have been met with mixed results. Some groups have attempted to attract diverse participants by creating membership quotas that would forbid them from adding white members until they successfully recruit non-white individuals or families. These attempts have been largely unsuccessful. See HANSON, supra note 1, at 196-97. Return to text.

[286] See, e.g., STEVENSON, supra note 276, at 2, 3. Return to text.

[287] See supra notes 263-64 and accompanying text. Return to text.

[288] See GILLIAN ROSE, MOURNING BECOMES THE LAW 4-5 (1996). Moreover, cohousing groups develop and live in their communities within a broader social and economic system that limits their abilities to create new, utopian social relations able to overcome the public/private dyad that so limits libertarians and communitarians. For example, cohousing fails to adequately address the issue of the separation between private domestic space and public work space in contemporary land use. As feminist critics of current housing arrangements have argued, the domestic segregation of this sense of public/private, based upon a domesticity/work conflict, denigrates both the first term in each dyad and the gender associated with it. Effective solutions would seek to construct "transitional spaces and activities" that enable the binding together of the two and to create "a different kind of space, supportive and interpersonal, which cannot be seen in the concepts of the simple dichotomous divided city." GILLIAN ROSE, FEMINISM AND GEOGRAPHY 135 (1993). A minority of existing cohousing projects, such as Ecovillage at Ithaca, have included office space that is separate from the residential units in their design, see supra note 210 and accompanying text, and several communities being planned are following the trend, see Vizard, supra note 8. Yet, the integration of office space remains relatively exceptional in cohousing design, and the movement remains largely concerned with creating alternative residential communities that are located within commuting distance of residents' workplaces. Return to text.

[289] Iris Marion Young, The Ideal of Community and the Politics of Difference, in FEMINISM/POSTMODERNI SM 300 (L.J. Nicholson ed., 1990). Return to text.

[290] IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 270 (1990). Return to text.

[291] See Joseph William Singer, The Reliance Interest in Property, 40 STAN. L. REV. 611, 655 (1988) (calling for "social relations" approach to property that would emphasize ongoing, situated interpersonal relationships that develop over time, from which rights emerge and within which power relations exist). Return to text.

[292] See Simon, supra note 251, at 1388-92. Return to text.

[293] See GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970, at 379-81 (1997) (describing and critiquing dominance of neo-classical economic approach in contemporary legal theories of property); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY, 69, 69-71 (J. Ronald Pennock & John W. Chapman eds., 1980) (describing basic assumptions of utilitarian economic approach). Return to text.

[294] See Michael Pyatok, Housing as a Social Enterprise: The Ambivalent Role of Design Competitions, J. ARCHITECTURAL ED. 147, 159 (Feb. 1993); see also Anthony Ward, The Suppression of the Social in Design: Architecture as War, in RECONSTRUCTING ARCHITECTURE (Thomas A. Dutton & Lian Hurst Mann, eds. 1996) 27-70, 57-58 (citing examples of successful public housing built with residents participating in design and management); Michael Dear & Jurgen von Mahs, Housing for the Homeless, by the Homeless, and of the Homeless, in ARCHITECTURE OF FEAR (Nan Ellin, ed. 1997) 187-200 (describing efforts to build communities for homeless in Los Angeles based upon the participation of residents). Cf. Duncan Kennedy & Leopold Specht, Limited Equity Housing Cooperatives as a Mode of Privatization, in A FOURTH WAY? PRIVATIZATION, PROPERTY, AND THE EMERGENCE OF NEW MARKET ECONOMIES 267, 267-68 (Gregory S. Alexander & Grazyna Skapska eds., 1994) (proposing a privatization regime for public housing units formerly owned by the Hungarian state that would grant property rights to current occupants and establish them as self-managing, joint-tenancy shareholders with rights to retain part of any profit upon sale, while requiring that some of the surplus profits be used by a local development bank to promote fair housing goals in the locality). But see ELLIN, supra note 22, at 157-58 (describing the failures and summarizing the critiques of the architect-and planner-run community design movement of the 1960s and 1970s). Return to text.

[295] See BUILDING INNOVATION FOR HOMEOWNERSHIP, supra note 8, at 102-17. Return to text.

[296] Id. at 100. Return to text.

[297] See GWENDOLYN WRIGHT, BUILDING THE DREAM: A SOCIAL HISTORY OF HOUSING IN AMERICA 198-99 (1981); see also FROMM, supra note 10, at 128-31 (describing the Amalgamated apartment cooperatives, like cohousing developments, as "collaborative communities"). Return to text.

[298] See GAIL RADFORD, MODERN HOUSING IN AMERICA: POLICY STRUGGLES IN THE NEW DEAL ERA 188-95 (1996). Return to text.

[299] See DAVID OSBORNE & TED GAEBLER, REINVENTING GOVERNMENT: HOW THE ENTREPRENEURIAL SPIRIT IS TRANSFORMING THE PUBLIC SECTOR 44 (1992). Return to text.

[300] See John Emmeus Davis, Introduction: Toward a Third Sector Housing Policy, in THE AFFORDABLE CITY: TOWARD A THIRD SECTOR HOUSING POLICY 1, 5-6 (John Emmeus Davis ed., 1994). Return to text.

[301] Id. at 15. Another affordable housing advocate has also praised the collaborative nature of cohousing as a model for low- and lower middle-income housing development. See Peter W. Salsich, Jr., Solutions to the Affordable Housing Crisis: Perspectives on Privatization, 28 J. MARSHALL L. REV. 263, 291 (1995); Peter W. Salsich, Jr., Urban Housing: A Strategic Role for the States, 12 YALE L. & POL'Y REV. 93, 133 n.217 (1994). Return to text.

[302] Laura M. Padilla, Single-Parent Latinas on the Margin: Seeking A Room With A View, Meals, and Built-In Community, 13 WIS. WOMEN'S L. J. 179, 184 (1998). Return to text.

[303] See Eleanor J. Bader, Low-Income Cohousing, DOLLARS & SENSE, Jan./Feb. 1998, at 24. Return to text.

[304] See Robert Nusgart, Where living space is shared: Advocate of cohousing says it may provide solution for Baltimore, BALTIMORE SUN, June 22, 1997, at 1L; Dana Oland, Common Ground, SACRAMENTO BEE, July 6, 1996, at G1 (noting the role of a municipal); see also Tony Perez-Giese, May We Share? A new CoHousing development in Boulder proves that communing is alive and well, DENVER WESTWORD, Jan. 16, 1997 (describing how the Monad cohousing group in Boulder, Colorado, received quicker approval from the city's housing division because of its proportion of affordable homes). But see HANSON, supra note 1, at 51-52 (cautioning that only a handful of cohousing groups have sought such assistance due to the costs of the slow and complex movements of government bureaucracy). Ironically, a private developer has used one cohousing group to fulfill its legal obligation to build affordable homes within a larger private development. See Donna Spreitzer, Living in My Thesis: Cohousing in Davis, California (1992) (unpublished M.A. thesis, School for International Training (Brattleboro, VT)) (last visited Nov. 5, 1999) . Return to text.

[305] See PETER AMBROSE, URBAN PROCESS AND POWER 212-14 (1994). Return to text.

[306] See ALBERT O. HIRSCHMAN, EXIT, VOICE AND LOYALTY 40-43 (1970). Return to text.

[307] See CONSTANCE PERIN, EVERYTHING IN ITS PLACE: SOCIAL ORDER AND LAND USE IN AMERICA 76-77 (1977). Return to text.

[308] As a model for participatory affordable housing communities, cohousing suggests communitarian notions of community-building and "insurgent" new social movements that bring about wider social change. On the tradition within twentieth century communitarian theory of privileging a participatory, small-scale government, see Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 CORNELL L. REV. 1, 48-49 (1989). On the concept of "insurgent citizenship," in which local, heterogenous movements subvert and transform the state by forcing the state's regulatory apparatus to respond, see James Holston, Spaces of Insurgent Citizenship, in MAKING THE INVISIBLE VISIBLE: A MULTICULTURAL PLANNING HISTORY 37-56, 46-48 (Leonie Sandercock, ed. 1998). Return to text.