Category Archives: housing

Op-Ed: “Designing a More Inclusive City”

Allison Arief, Designing a More Inclusive City, New York Times, October, 20, 2017. [“City Center Plaza, like so many urban plazas everywhere, gives the appearance of public space while simultaneously restricting access to it.”]


New Article: “Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?”

Louis S. Rulli, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?, 19:5 Univ. Pen. L. Rev. 1112, (2017).

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the
government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments. The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens—many are whom are innocent of any wrongdoing—and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property. This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the ham (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture of the property owner.

Op-Ed: “Why is ‘Affordable’ Housing So Expensive to Build”

Joe Cortright, Why is ‘Affordable’ Housing So Expensive to Build, City Lab, October 19, 2017. [As costs keep rising, it’s becoming harder and harder for governments to subsidize like they’ve done in the past.]

Op-Ed: “America’s affordable-housing stock dropped by 60 percent from 2010 to 2016”

Tracy Jan, America’s affordable-housing stock dropped by 60 percent from 2010 to 2016,The Washington Post, October 23, 2017. [“The number of apartments deemed affordable for very low-income families across the United States fell by more than 60 percent between 2010 and 2016”]

New Article: “The Gendered Impact of Illegal Act Eviction Laws”

Leora Smith, The Gendered Impact of Illegal Act Eviction Laws, 52 Harv. L. Rev. 538 (2107). [Abstract below]

In Toronto and New York City, “illegal act” eviction laws allow public
housing providers to evict every member of a household on the basis of a single
illegal act committed by a single person in their home. Leaseholders and their
dependents can be evicted even if they were not involved in the illegal act underpinning the eviction. An analysis of illegal act evictions carried out over the last six years by North America’s two largest public housing providers, Toronto
Community Housing Corporation and New York City Housing Authority, suggests
that illegal act evictions laws have a grossly disproportionate impact on
women. In both Toronto and New York City, women are far more likely than
men to be evicted for actions that they did not personally commit. In both cities,
in at least 88% of instances where a leaseholder was evicted because of actions
committed by another person, the leaseholder was a woman. Also in both cities,
women threatened with illegal act evictions actually committed the underlying
illegal act in less than 35% of instances. Men who face eviction are more likely
to do so for their own actions. These trends hold true despite the fact that the
laws governing each jurisdiction are interpreted quite differently. The results
from this limited investigation beg further study and suggest that illegal act eviction
laws unfairly impact women – regularly punishing them for the actions of

Op-Ed: “For Homeless Advocates, a Discouraging Lesson in Los Angeles: Money is Not Enough”

Adam Nagourney, For Homeless Advocates, a Discouraging Lesson in Los Angeles: Money is Not Enough, New York Times, September 29, 2017. [Opponents of housing development for the homeless have taken a ‘by any means’ approach.]

New Article: “The Power to Exclude and the Power to Expel”

Donald J Smythe, The Power to Exclude and the Power to Expel, SSRN, September 5, 2017. [Abstract below]

Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate the motivations of various parties with interests in the direction of American property law. As the analysis indicates, affluent residents and upscale businesses owners have incentives to pressure suburban governments for zoning regulations that effectively exclude less affluent residents from their neighborhoods. Affluent residents and corporations who want to relocate into urban neighborhoods have incentives to pressure city governments to use eminent domain to facilitate urban redevelopment projects, and the takings often effectively expel many less affluent residents and smaller businesses from their neighborhoods. The analysis accords with the historical evidence. In the early twentieth century suburban governments began to use zoning ordinances to exclude poor and less affluent residents from suburban neighborhoods. Around the middle of the twentieth century, city governments began to use takings to effectively expel less affluent residents and smaller businesses from urban neighborhoods. The United States Supreme Court upheld the powers of local governments to exclude and expel, and state courts acquiesced to them. The consequence has been high and rising land prices, housing unaffordability, homelessness, and the perpetuation of the de facto segregation of the American people by income, wealth, race, ethnicity, religion, and national origin.

New Article: “Limiting the Collective Right to Exclude”

Boyack, Andrea J., Limiting the Collective Right to Exclude (May 24, 2017). Fordham Urban Law Journal, Vol. 44, 2017. [Abstract below]

For decades, society’s disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society’s housing woes may indeed be intractable if we continue to treat a group’s right to exclude with the level of deference that such exclusionary efforts currently enjoy, this treatment is unjustifiable. Courts should acknowledge and consider the broad public and private costs that are created by a group’s unfettered right to exclude. A more balanced approach would weigh individual autonomy to control property and various public harms resulting from community exclusions against legitimate community needs to exclude certain residents and uses. Judicial limits of the collective right to exclude may enable real progress toward fair and affordable housing to be achieved at last.

New Book: ” Evidence and Innovation in Housing Law and Policy”

From the Property Prof Blog: This just in from Lee Ann Fennell (Chicago): Cambridge University Press has just published Evidence and Innovation in Housing Law and Policy (Lee Anne Fennell & Benjamin J. Keys, eds. 2017).  All chapters are downloadable in PDF as well as viewable in HTML through the Open Access version. The impressive list of contributors include: William A. Fischel, David Schleicher, Richard A. Epstein, Ingrid Gould Ellen, Brian J. McCabe, Lior Jacob Strahilevitz, Georgette Chapman Phillips, Matthew Desmond, Stephanie M. Stern, Christopher Mayer, Ian Ayres, Gary Klein, Jeffrey West, Atif Mian, Amir Sufi, Patricia A. McCoy, Susan Wachter, Raphael W. Bostic, and Anthony W. Orlando.

Chapters of note for this blog include (available for free by clicking on the link and then the PDF icon):

3 – The Unassailable Case against Affordable Housing Mandates pp 64-84 By Richard A. Epstein

8 – Behavioral Leasing: Renter Equity as an Intermediate Housing Form pp 177-202 By Stephanie M. Stern

10 – The Rise and (Potential) Fall of Disparate Impact Lending Litigation pp 231-254 By Ian AyresGary KleinJeffrey West

13 – When the Invisible Hand Isn’t a Firm Hand: Disciplining Markets That Won’t Discipline Themselves pp 322-342 By Raphael W. BosticAnthony W. Orlando

New Article: “Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri”

Karen Tokarz and Zachary Schmook, Law School Clinic and Community Legal Services Providers Collaborate to Advance the Remedy of Implied Warranty of Habitability in Missouri, 53 Wash. U. J. L. & Pol’y 169 (2017). Abstract Below:

This Essay discusses the economic and public policy concerns regarding the implied warrant of habitability law and the ability of tenants in the state of Missouri can raise effective defenses to rent and possession/eviction actions. The authors, Tokarz and Schmook, director and supervising attorney, respectively, of Washington University’s Civil Rights and Community Justice Clinic, evaluate these issues in light of Kohner Props., Inc. v. Johnson, which currently awaits a decision from the Missouri Supreme Court. Tokarz and Schmook use statistical analysis to identify recent trends in favorable results for landlords in disputes with tenants and stress the effects the Missouri Supreme Court’s decision in Kohner could have in future cases involving tenant rights.