Category Archives: Property

New Article: Law, Urban Space, and Precarious Property: The Governance of Poor People’s Possessions

New Article: Nicholas Blomley, Alexandra Flynn, Marie-ève Sylvestre, & Nicholas Olson, Law, Urban Space, and Precarious Property: The Governance of Poor People’s Possessions, 50 Fordham Urb. L. J. 223 (2023). Excerpt below:

Law is not abstract and ungrounded, but is formed through, and productive of the spaces in which it exists. Such spaces are not abstract, but inherently social and political. To fully understand the work of legal space, it is necessary to learn from those on the legal margins. The geographies of real property law are, for most of us, taken for granted. The precariously housed, however, are forced to experience only the exclusionary territorialization of private property, without any compensatory right to territory of their own. They live the “Lockean hell”: not simply are they “under the power of others — to be dominated by them or dependent on them — in respect of where one may be,” but also they must negotiate the legal reality that “that there is nowhere that [they] are in charge of, nowhere that everyone else has no right to be without [their] leave.” Jeremy Waldron developed an influential analysis of space and law in this context. He notes that spaces in which the houseless can exercise their freedom, including fundamental freedoms such as the right to sleep without being disturbed by others, are hedged in by the territory of private property: For the most part the homeless are excluded from all the places governed by private property rules, whereas the rest of us are, in the same sense, excluded from all but one (or maybe all but a few) of those places. That is another way of saying that each of us has at least one place to be in a country composed of private places, whereas the homeless person has none. The rules of private property are thus, for the houseless person, “a series of fences that stand between them and somewhere to be, somewhere to act.” While a powerful argument, we offer two supplements.

New Book: The Gender of Capital

New Book: Céline Bessière and Sibylle Gollac, The Gender of Capital: How Families Perpetuate Wealth Inequality, Harvard Uni. Press (March 7, 2023). Overview below:

Two leading social scientists examine the gender wealth gap in countries with officially egalitarian property law, showing how legal professionals—wittingly and unwittingly—help rich families and men maintain their privilege.

In many countries, property law grants equal rights to men and women. Why, then, do women still accumulate less wealth than men? Combining quantitative, ethnographic, and archival research, The Gender of Capital explains how and why, in every class of society, women are economically disadvantaged with respect to their husbands, fathers, and brothers. The reasons lie with the unfair economic arrangements that play out in divorce proceedings, estate planning, and other crucial situations where law and family life intersect.

Céline Bessière and Sibylle Gollac argue that, whatever the law intends, too many outcomes are imprinted with unthought sexism. In private decisions, old habits die hard: families continue to allocate resources disproportionately to benefit boys and men. Meanwhile, the legal profession remains in thrall to assumptions that reinforce gender inequality. Bessière and Gollac marshal a range of economic data documenting these biases. They also examine scores of family histories and interview family members, lawyers, and notaries to identify the accounting tricks that tip the scales in favor of men.

Women across the class spectrum—from poor single mothers to MacKenzie Scott, ex-wife of Amazon billionaire Jeff Bezos—can face systematic economic disadvantages in divorce cases. The same is true in matters of inheritance and succession in family-owned businesses. Moreover, these disadvantages perpetuate broader social disparities beyond gender inequality. As Bessière and Gollac make clear, the appropriation of capital by men has helped to secure the rigid hierarchies of contemporary class society itself.

New Book: Excluded – How Snob Zoning, NIMBYism, and Class Bias Build the Walls We Don’t See

New Book: Richard D. Kahlenberg, Excluded: How Snob Zoning, NIMBYism, and Class Bias Build the Walls We Don’t See, PublicAffairs, (July 2023). Overview below:

An indictment of America’s housing policy that reveals the social engineering underlying our segregation by economic class, the social and political fallout that result, and what we can do about it

The last, acceptable form of prejudice in America is based on class and executed through state-sponsored economic discrimination, which is hard to see because it is much more subtle than raw racism.

While the American meritocracy officially denounces prejudice based on race and gender, it has spawned a new form of bias against those with less education and income.  Millions of working-class Americans have their opportunity blocked by exclusionary snob zoning.  These government policies make housing unaffordable, frustrate the goals of the civil rights movement, and lock in inequality in our urban and suburban landscapes.

Through moving accounts of families excluded from economic and social opportunity as they are hemmed in through “new redlining” that limits the type of housing that can be built, Richard Kahlenberg vividly illustrates why America has a housing crisis. He also illustrates why economic segregation matters since where you live affects access to transportation, employment opportunities, decent health care, and good schools. He shows that housing choice has been socially engineered to the benefit of the affluent, and, that astonishingly the most restrictive zoning is found in politically liberal cities where racial views are more progressive.

Despite this there is hope. Kahlenberg tells the inspiring stories of growing number of local and national movements working to tear down the walls that inflicts so much damage on the lives of millions of Americans.

New Article: Lead and Landlords

New Article: Karen Czapanskiy, Lead and Landlords, Belmont L. Rev. (Forthcoming). Abstract below:

Lead is a toxin that humans cannot safely consume. As has been known for decades, people frequently suffer exposure to lead because of its use in paint and gasoline. In recent decades, water has been added to the list of delivery systems. Often, lead enters water when pipes containing lead are used to transport water from a public water system (PWS) to the tap in a home or a business— at least nine million homes in the United States.

Many PWS and local, regional and state governments have been working to eliminate lead contamination from lead pipes. Significant new funding for these efforts was included in the Infrastructure Investment and Jobs Act signed by President Biden in November 2021. Unfortunately, some of the people who historically have borne the greatest burden of lead exposure are less likely than others to see the benefits. One important reason for the differential is that people of color and people with little income and wealth are more likely to live in rental housing. In most jurisdictions, landlords are viewed as having exclusive power to decide whether to replace the portion of the water service which is called “private” – the lateral portion of the service line that connects the main service line to the individual building. Getting the consent from the landlord to replace the lateral service line is not always easy. When a landlord does not replace the line or consent to its replacement by the PWS, tenants continue to be exposed to significant levels of lead in water contaminated by the pipes.

In this article, I argue that the accepted practice of requiring the consent of the landlord before replacing the lateral service line is at least questionable law. In making this claim, I’m asserting that property rights are properly subject to limits that affect a landlord’s autonomy around the question of whether a lead service line should be replaced on her property. While this assertion is contrary to the usual approach, it is anything but alien to property law. Unless judges and legislators are urged to consider more deeply the costs of landlord authority and opportunities to limit it, assumptions will continue to prevail over amore considered analysis.

New Article: Tragedies of the Cultural Commons

New Article: Etienne C. Toussaint, Tragedies of the Cultural Commons, 110(6) Cal. L. Rev. 1777 (2022). Abstract below:

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses the origin story of hip-hop music to advance this thesis, making three claims about law and culture. First, it argues that cultural theories of poverty and crime (embedded with racial stereotypes and cultural biases) shaped the political response to the growth of Black urban ghettos in New York City during the 1970s and 1980s. Second, via a textual analysis of Grandmaster Flash & The Furious Five’s 1982 hip-hop song The Message, this Article contends that early hip-hop cultural views of democratic life were in rivalry with the dominant cultural discourse of conservative politicians and leading public intellectuals. Third, this Article breaks new ground by conceptualizing the socioeconomic inequities that plague Black urban ghettos as “tragedies of the cultural commons.” Building upon Garrett Hardin’s famous Tragedy of the Commons allegory, this framing employs the concept of the commons to illuminate how racism can mold the symbiotic relationship between law and democratic culture.

Taken together, this Article’s critical legal history of the rise of early hip-hop culture suggests that if law is in fact both constitutive of and constituted by dominant cultural views, then in the United States, Black cultural expressions of democratic life have historically labored under the hegemonic rivalry of a White supremacist vision of law and order. Further, hip-hop culture emerges as a counter-cultural vision of democratic life — an example of what Sheila R. Foster calls “urban collective action” or what Lisa T. Alexander calls “cultural collective efficacy.” If racial injustice in America is indeed the byproduct of law’s flawed empire, then perhaps reforming law’s empire demands a reconstruction of the democratic cultural commons.

New Article: A National Survey of Tenant Protections

New Article: A National Survey of Tenant Protections, FreddieMac, (Feb. 6, 2023). Overview beloew:

Housing is a Fundamental Need

For renters, that need is met by multifamily property owners, and to a lesser extent, public housing authorities that provide rental housing. The relationship between these property owners (landlords) and renters (tenants) — and the obligations they have to each other — impact not just property owners and renters, but also local, state, and national economies, and rental market dynamics overall. Federal, state and local governments have sought to establish standards in landlord tenant relations and practices through a range of laws that provide various tenant protections, balancing the interests of landlords and tenants while maintaining a stable rental housing system.

Surveying Tenant Protections

In this paper, we compiled a list of 18 tenant protection questions and surveyed the state-level landlord-tenant statutes in all 50 states, DC and Guam to determine how these tenant protections are treated under the law across the country. We grouped our research questions into five focus areas covering different parts of the renting experience, including tenant screening, rent payments and security deposits, habitability and retaliation, pre-eviction protections and certain aspects of the eviction process.

New Article: The Slow, Inevitable Death of Middle-Class Housing

New Article: Ginia Bellafante, The Slow, Inevitable Death of Middle-Class Housing, N.Y. Times, (Jan. 15, 2023). Excerpt below:

By the time it was completed in the early 1940s, the Parkchester apartment complex in the Bronx had distinguished itself on several levels. The development was the original live-play space, to borrow the current argot, incorporating a movie theater with 2,000 seats and a branch of Macy’s; it was responsible for the largest order of kitchen cabinets ever placed in the country’s history. Given current economic assaults on all but the very affluent, Parkchester’s origins seem almost quixotic in retrospect: especially elegant housing for the middle class. After it opened, the development ranked as the second most valuable property in New York, following Rockefeller Center.

Delivering more than 12,000 apartments, Parkchester arrived during a moment of great enthusiasm for the capacity of urban design to advance the social good, merging two philosophical styles typically set in opposition — Le Corbusier’s high-rise model, with its promise of clean, efficient density, and the principles of the City Beautiful movement, a cri de coeur for artful embellishment and expansive green space.

New Article: The Landlord & the Tenant

New Article: Raquel Rutledge and Ken Armstrong, The Landlord & The Tenant, ProPublica, (Nov. 2022). Excerpt below:

A young mother rents a house near Milwaukee. The previous tenant tells her, “Baby, they shouldn’t have let you move in.”

New Article: Harvard and the Housing Crisis: The Non-Profit Corporate Landlord Behind Boston’s Housing Crisis

New Article: Sarah Rosenkrantz, Harvard and the Housing Crisis: The Non-Profit Corporate Landlord Behind Boston’s Housing Crisis, the [f]law, (Nov. 2022). Excerpt below:

In the twelve days between March 10th and March 22nd, 2020, thousands of students across Greater Boston were forced out of their residences, left scrambling to find alternative housing. A month later, Governor Baker would sign into law an eviction moratorium, halting eviction proceedings during the course of the ongoing COVID-19 health emergency and ensuring tenants could stay in their homes. This served to temporarily halt the eviction mill, which for so long had been powered by the large corporate landlords of Greater Boston. Over generations, these landlords had amassed immense amounts of property and wealth, often while driving systemic displacement, evictions, and gentrification. But finally, thanks to the moratorium and efforts of legal aid organizations, the momentum of these landlords was stalled, as they began to face resistance in court. 

New Article: The Color of Property and Auto Insurance: Time for Change

New Article: Jennifer Wriggins, The Color of Property and Auto Insurance: Time for Change, 49(2) Fl. St. Uni. L. Rev. 203 (2022). Abstract below:

Insurance company executives issued statements condemning racism and urging change throughout society and in the insurance industry after the huge Black Lives Matter demonstrations in summer 2020. This time period presents a crucial opportunity both for examining insurance as it relates to race and racism, including history and current regulation, and for actual, overdue changes in insurance in the U.S. Two of the most important types of personal insurance are property and automobile.

Part I begins with history, focusing on property insurance, auto insurance, race, and racism in urban areas around the mid-twentieth century. Private insurers deemed large areas of cities where African Americans lived to be “blighted” and refused to insure all homes in these areas, despite lacking clear evidence of increased risk. This created a property insurance crisis in the cities. Affordable automobile insurance in areas such as Harlem was hard to come by; complaints of race discrimination went back to the 1930s.The federal government got involved in the late 1960s after state and local remedies were insufficient. The federal Urban Property Protection and Reinsurance Act of 1968 (UPPRA) was aimed to incentivize private insurance companies to enter the urban market and to support states in establishing plans (known as Fair Access to Insurance Requirements or FAIR Plans) that would require companies to cover a certain amount of risk in urban areas.

The UPPRA and FAIR plans led to a robust urban property insurance market at minimal cost to the government and industry, Part II finds. The federal program later was discontinued and largely forgotten, probably due to its success. This forgotten history tells us that insurance markets have not functioned in a neutral way and that for long periods companies did not sell property insurance based on objective neutral data but based on at least in part on racial prejudice. It further shows that the federal government can play a socially positive rule in insurance markets without miring the government in taking on the entire risk or costing taxpayers huge sums. Yet the reform measures did not end redlining or challenge many of the equity issues involved in insurance. Property and auto insurance companies have shifted in recent decades from explicit race-based exclusions to the use of facially neutral practices for pricing and underwriting such as algorithms, machine learning, and credit scores. However, insurance antidiscrimination law (which is largely state law) has not kept pace. No federal law directly bans race discrimination in auto insurance, and federal housing antidiscrimination law has not been consistently applied to housing insurance practices which have a disproportionate impact on racial minorities.

Three reforms would improve current practices, Part III asserts. First, insurance regulation should require more disclosure with requirements parallel to those of the Home Mortgage Disclosure Act. Insurers should be required to collect and disclose specific data on insurance applications and declinations, membership in protected groups, and other information. Second, a private cause of action should potentially be made available for insurance discrimination when insurance practices lead to a disparate impact on African Americans and other racial minorities. Third, insurance regulation should be shifted away from rate regulation which currently serves no useful purpose; this would make more room and time for the other proposed reforms which might lead to long overdue changes in property and auto insurance regulation and practices.