111 Iowa L. Rev. 2007 (2026)
 

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Abstract

Many cities and states facing a severe housing crisis have taken steps to reform restrictive land use regulations that block the production of new housing. These efforts have been hindered, however, by the prevalence of homeowners associations (“HOAs”) that impose overlapping restraints on housing production through private deed restrictions. In response, many cities and states have considered enacting laws to “override” or invalidate these private deed restrictions. I argued in a previous article that state legislatures have the power to override private deed restrictions, notwithstanding potential arguments under the Constitution’s Takings and Contract Clauses. Increasingly, however, local governments have also been taking the initiative to reform their land use regulations. Accordingly, this Article takes on a related question—do local governments have the power to override deed restrictions? This question is more complicated because the doctrine of home rule and other related principles place some limitations on local land use powers that do not apply to state governments. In particular, local governments may be restricted in their ability to affect “private law” obligations, possibly including the enforceability of private deed restrictions. Nevertheless, I argue that local governments do have the power to override deed restrictions, and that, in fact, local governments may be better positioned to do so than state governments are. Local governments possess knowledge of local conditions that enable them to tailor overrides appropriately, and local governments’ sensitivity to the concerns of landowners makes it unlikely that they would overreach in regulating private property rights. More broadly, local government scholars today are divided over whether local land use control has the potential to be something more than just a license for “Not in My Backyards” (“NIMBYs”) to block needed housing. This Article shows that local power and local knowledge need not be synonymous with “no,” and there is a way to affirm the capabilities of local democracy without it devolving into unchecked parochialism.

Published:
Wednesday, July 15, 2026