It appears, under the new supreme law of the land with respect to homeowners associations, the Constitution is subservient to the rewritten, “modernized” doctrine of equitable servitudes. While the Restatement addresses constraints on the validity of covenants, such as “reasonable”, and not violating public policy or the Constitution, the Restatement states that in the event of a conflict between competing rights, the dominant right is not the constitutional right, but that expressed by the common law Restatement.
As for public policy protections, public policy, as reflected in state laws and court decisions, is well entrenched in favor of the association over the individual rights and freedoms of the people, the homeowners. The standard of “reasonableness” is tied to the existing values and objectives of society, and thus, the use of this loose standard only serves to reinforce the holdings of the Restatement and the protective HOA public policy.
Simply stated, the sui generis nature of planned communities forced the courts to deal with a multitude of “first impressions” resulting in new laws. As a result of the national efforts to mass merchandise and promote this new mode of housing, the special interests were influential in attaining many highly favorable decisions, serving to “lock-in” the protection of the HOA/planned community scheme. And these special interests were supported by the property lawyers and the academics that wrote and talked about this new innovation in housing. The opposition was at a disadvantage, as today when a homeowner still cannot get an attorney to represent him, and, consequently, a favorable body of common law developed. That body of common law has become the “modernized” property law found in the restatement of servitudes.
See the complete commentary at HOA-law.
HOA Constitutional Government 