Does the 5th Amendment Protect Community Associations Against Uncompensated Government Takings?


Writing at the blog of the Cato Institute, Ilya Shapiro and Trevor Burrus urge the U.S. Supreme Court to take up the case of Mariner's Cove Townhomes Assocation v. United States, which centers on a Takings Clause challenge to the federal government's uncompensated seizure of private property. They write:

This case arises from the federal government's taking 14 of 58 townhouses from one development in the wake of Hurricane Katrina. Mariner's Cove owned a right to collect dues that was appended to those 14 townhomes, and sued the government for extinguishing that valuable right without just compensation under the Fifth Amendment's Takings Clause.

In contrast to most lower courts, however, the U.S. Court of Appeals for the Fifth Circuit held that "the right to collect assessments, or real covenants generally" are not subject to Takings Clause analysis. In other words, the government can take those rights without paying anything to the owners….

The perverse implications of the Fifth Circuit's ruling are clear: it would allow for local governments to require the creation of a community association, benefit from the resulting private delivery of services while collecting taxes from its members, and later take the property without even paying back the very fees that enabled the government's benefit.