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University of Illinois Law Review


Private residential developments governed by homeowners associations have rapidly proliferated in recent decades. The servitudes that form the backbone of these private developments are usually viewed as autonomy- and value-enhancing private contractual arrangements that are presumptively valid. Unfortunately, the appealing contractual justification for private land use regimes seems to have shut down many of the usual paths of inquiry into the ability of the resulting arrangements to deliver on consumer preferences. In this article, Professor Fennell seeks to bring the theory surrounding these developments up to speed by focusing on factors that can drive a wedge between homeowner preferences and the private land use regimes that the market provides.

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