Joseph William Singer, NIMBY Covenants Are Not Protected by the Takings Clause, Thurgood Marshall Law Review (forthcoming 2026).
Abstract: Several states have abolished single-family zoning, but they have left in place covenants that limit land to single-family home structures. They have expressed worry that abrogating such covenants would constitute an unconstitutional taking of property under the Fourteenth Amendment. It is reasonable to worry about how the Supreme Court would analyze abolition of such covenants but, in fact, abolition of single-family home covenants because they are deemed to violate public policy will not require compensation. Invalid property rights are not “property” at all within the meaning of the Takings Clause. And even if they are, states have ample power, as they have always done, to change property law to promote liberty and a well-functioning real estate market that promotes the general welfare. Abrogating single-family covenants would be neither a categorical taking nor a regulatory taking under the Penn Central ad hoc test. Covenants have, from the beginning, been highly regulated by the states to free land from undue limits on its use and transfer. States that make policy determinations that single-family home restrictions are distorting the housing market, exacerbating the affordable housing shortage, and preventing non-owners from acquiring property interests in homes have legitimate authority to abolish single-family home covenants without compensation. Private owners cannot be allowed to hoard land in a manner that prevents others from acquiring housing.