The Georgia Condominium Act’s Authorization of Private Takings: Revisiting Kelo and “Bitter with the Sweet”

Homeownership provides owners with certain propertyrights and a sense of security. One of the most importantproperty rights is the Takings Clause of the U.S. Constitution,which prohibits the government from taking private propertywithout just compensation. The Clause has been incorporatedagainst the states and is interpreted as prohibiting any takingthat does not serve a public use. Despite these constitutionalprotections, numerous condominium owners face the threat ofprivate investors taking their units for no public use, withoutjust compensation, and without the owners’ consent.Many state condominium laws allow private investors whoobtain a specified percentage of a condominium’s units to forcethe minority unit owners to sell their units. Although the U.S.Supreme Court has written many opinions interpreting theTakings Clause, the Court has not addressed whether statesmay permit the forcible transfer of condominiums—or otherforms of common-interest homeownership—without theunanimous consent of the owners. Although takings foreconomic development are permitted, no scholarship hasconsidered whether the Court’s reasoning behind its rejection ofthe “bitter with the sweet” doctrine can be applied to the Court’sTakings Clause analysis to prohibit states from statutorilyconditioning condominium ownership upon waiver ofconstitutional protections. This Note suggests that the GeorgiaCondominium Act—and other state condominium terminationstatutes—may unconstitutionally permit investors to effectuateprivate takings by forcing dissenting minority owners to selltheir fee simple interests in their units