Professor Boyack's Paper on SSRN's Top 10 Download List
Washburn Law Associate Professor Andrea Boyack's paper "Freedom of Contract and the Endangered Right to Transfer" was posted on the Social Science Research Network the last week in August.
The paper was in the top 10 downloaded papers in its subject area the following week.
Here is an excerpt from the abstract: "Private community restrictions on property transfer deserve closer scrutiny by the courts because they often conflict with public policy objectives and unjustifiably compromise owners' property rights. Covenants that run with the land are a strange legal hybrid, neither completely contract nor solely property. As servitudes, they are specifically enforceable and bind subsequent owners of the property in perpetuity. In common interest communities, these covenants further diverge from traditional contracts in being adhesive and non-negotiable conditions bundled into home acquisition. Their terms are prescribed by developers and lenders, not by community members themselves. Yet courts typically uphold transfer restraints in covenants based on freedom of contract principles without fully vetting implications for property rights and market efficiency."You can access and download the paper here: "Freedom of Contract and the Endangered Right to Transfer".