Category Archives: Property

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.

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News Coverage: “‘We don’t have anything’: landlords demand rent on flooded Houston homes”

Oliver Milman,’We don’t have anything’: landlords demand rent on flooded Houston homes, The Guardian, September 4, 2017. [“Displaced families say they are struggling to pay rent on damaged dwellings, as an acute housing crisis grips south-east Texas after Hurricane Harvey”]

News Coverage: “Poorer tenants fear being pushed out by planned Congress Heights complex”

Abigail Hauslohner, Jonathan O’Connell, Poorer tenants fear being pushed out by planned Congress Heights complex, Washington Post, Oct. 14, 2015. [An overview of the issues facing low income tenants in the Districts Congress Heights area.]

 

New Article: “Cities, Inclusion and Exactions”

Audrey G. McFarlane, Randall K. Johnson, Cities, Inclusion and Exactions, 102 Iowa L. Rev. 2145 (2017). Abstract Below:

 

Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction. Drawing from the experience of Baltimore, Maryland’s inclusionary zoning ordinance, this Article considers the impact that the uncertainty in the law may have had on the type of inclusionary zoning ordinance adopted by the city. This Article argues that the conversation about inclusionary zoning,land use regulation, and exactions has been formulated in the context of imagery about development that leaves places like Baltimore out. The imagery in these narratives is of an individual landowner powerless in the face of government overreach. The reality is different in those places where land developers are not powerless and instead are often politically influential repeat players. Thus, the real problem presented may be not how to craft doctrine to prevent cities from asking too much of developers, but instead to craft doctrine that ensures cities do not give away too much.

Op-Ed: “Evict the Rich”

Op-Ed: Peter Moskowitz, Evict the Rich, The Outline, Aug. 22, 2017 [arguing for the use of eminent domain to build affordable housing].

News Coverage: “L.A. County’s Latest Solution to Homelessness Is a Test of Compassion: Residents can get up to $75,000 to build a “granny flat”—if they open it up to a homeless family”

News Coverage: Linda Poon, L.A. County’s Latest Solution to Homelessness Is a Test of Compassion: Residents can get up to $75,000 to build a “granny flat”—if they open it up to a homeless family, Citylab, Aug. 18, 2017.

New Article: “Move Along to Where? Property in Service of Democracy (A Tribute to André van der Walt)”

New Article: Timothy M. Mulvaney & Joseph William Singer, Move Along to Where? Property in Service of Democracy (A Tribute to André van der Walt). Abstract below:

When the police in cities that prohibit sleeping in public spaces command that people on the streets “move along,” advocacy groups for the homeless have started a campaign that pointedly asks “move along to where?” This question seeks to highlight the reality that homeless persons are being subjected to an order with which they have no capacity to comply. In this instance, the state is defining and rigidly enforcing property rights without concern for the consequences of its doing so; it apparently is only after this exercise in definition and enforcement that the state can move to respect fundamental democratic values—such as dignity and equality—in the space that remains.

Inspired by the work of André van der Walt, we here present the alternate thesis that property exists in service of the values that characterize our democracy. We advance this thesis through the lens of two stories of eviction—the leading cause of homelessness in the U.S.—in which our democratic values seemingly and, in our view, unacceptably are taking a backseat to property.

Op-Ed: “Good riddance to monuments, but they’re only scabs on a deeper wound”

Op-Ed: Jacques Morial, “Good Riddance to Monuments, but they’re Only Scabs on a Deeper Wound”, The Lens, May 30, 2017.

Article: Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification

Article: Bethany Y. Li, Now is the Time: Challenging Resegregation and Displacement in the Age of Hypergentrification, 85 Fordham L. Rev. 1189 (2016).

Gentrification is reaching a tipping point of resegregating urban space in global cities like New York and San Francisco, often spurred by seemingly neutral government policies. The displacement resulting from gentrification forces low-income people from their homes into areas of concentrated poverty. Low-income communities consequently lose space, place, social capital, and cultural wealth that residents and small businesses have spent decades building up. This Article argues that communities at this tipping point must integrate litigation strategies directly aimed at stemming the adverse impacts of gentrification. Community organizing is integral to antidisplacement efforts, but litigation—and its injunctive powers—should play a larger role in protecting residents in hypergentrified neighborhoods. Using a rezoning that spurred gentrification in New York City’s Chinatown and Lower East Side as a case study, this Article considers how the Fair Housing Act, state constitutions, and a new vision of property law could counter the negative and often racially discriminatory effects of gentrification on low-income communities.

Article: Housing Defense as the New Gideon

Article: Kathryn A. Sabbeth, Housing Defense as the New Gideon, 43 Harv. J. L. & Gender (forthcoming).

New York City is poised to become the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of losing their homes. Although millions of Americans are evicted every year, until recently, scholars and policymakers largely ignored the eviction phenomenon. New research demonstrates the frequency of eviction and the breadth of its economic and social impacts on individuals, their families, and society at large. Relying on studies showing that housing defense lawyers decrease eviction rates and promote positive social outcomes, NYC legislators concluded that a right to housing defense counsel would be both morally right and cost-effective. They introduced Intro 214-A to establish such a right and, in February 2017, the NYC mayor announced that his administration will provide the funds the bill needs to move forward. This Article is the first to analyze this ground-breaking legislation.

The right to appointment of criminal defense counsel recognized in Gideon v. Wainwright grew out of the Supreme Court’s response to the Civil Rights Movement. Using NYC’s housing defense bill as a case study, this Article identifies three ways in which the civil right to counsel has the potential to build on the Gideon model and expand it for today. First, in targeting the secondary effects of the eviction phenomenon, the NYC legislature moves beyond procedure to promote substantive outcomes. Second, its focus on housing defense recognizes a set of concerns that disproportionately impact Black women, thus building on the racial equality aims underlying Gideon and adding a move toward gender equality. Third, whereas the criminal defense model defends individuals against state power, the new bill applies to tenants of public and private landlords, thus checking abuses of private power.

The Article also addresses the dynamics of defensive lawyering, a feature of both the old and the new models of appointment of counsel. Defensive lawyering suffers from systemic limitations and fails to challenge social problems that could be addressed through affirmative suits—such as discrimination, harassment, and unsafe conditions. The availability of counterclaims in civil litigation, however, makes the civil defensive position more flexible than its criminal cousin, and may overcome some of these limits. The Article concludes that the new right to counsel holds significant promise.