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» Overview
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| Time | Session | Presenters |
|---|---|---|
| 8:30 AM | Registration |
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| 9:00 AM | Introduction & Welcome
Watch Video |
Peter W. Salsich Jr. McDonnell Professor of Justice in American Society, Saint Louis University School of Law |
| 9:15 AM | Session one |
Moderator |
Property Ownership in the U.S.: New Definitions for a New Era
Watch Video |
Matthew T. Bodie Associate Professor of Law, Saint Louis University School of Law |
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Punishing Perseverance: The Perverse Reward for Low-Income Homeowners in the Modern Age of Urban RedevelopmentWatch Video |
Damon Y. Smith Assistant Professor, Rutgers University School of Law–Camden |
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| Urban redevelopment projects have long been decried as catalysts for the dissolution of low-income urban communities, particularly low-income communities of color. I posits that this problem has not been alleviated in modern redevelopment efforts and that increasing evidence indicates that stable homeowner-occupied, low-income neighborhoods are increasingly targeted for urban redevelopment. The perverse result of this targeting is that homeowners living in urban neighborhoods maintained in a manner typically enforced by common-interest communities in the private land use context are increasingly likely to lose their homes through the use of eminent domain in the public land use context. I will explore several reasons for this phenomenon, including the need to market the resulting project to retail businesses and middle- and upper-income purchasers, the regional view of "safe" and "no-go" areas within distressed urban communities and the proximity of targeted neighborhoods to geographically peripheral and transportation-rich corridors within the host city. Two case studies are explored to illustrate these points, one in the Cramer Hill neighborhood of Camden, N.J. and another in the Emerson Park neighborhood of East St. Louis, Ill. I suggest that the legal and public policy protections afforded to low-income homeowners should be equal to those provided to middle- and upper-income homeowners and that recent anti-Kelo v. City of New London state legislation and state court rulings have exacerbated this problem rather than remedying it. I will conclude with suggestions for a new wave of reformation for state laws defining blight and increasing procedural protections for low-income homeowners in designated redevelopment areas. |
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Clouded Title in the Informal Housing Market: Challenges and Opportunities for ReformWatch Video |
Heather K. Way Director, Community Development Clinic, University of Texas School of Law |
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| An important trademark of homeownership in the United States is the ability to hold and pass clear title to one's home. Recognizing the importance of clear title, states have instituted laws and systems which facilitate the clean transfer of title from seller to buyer, from owner to heir. These legal systems — while so critical to securing the benefits of homeownership — are inaccessible to many in the United States. Income, educational, cultural and language barriers push many homeowners outside these legal systems into a realm of clouded title. With the current mortgage crisis and tightening of the credit market, more families buying homes will be pushed into alternative and unregulated sources of financing: seller-financing, rent-to-own, and contract for deed sales. All of these transactions place vulnerable populations at an even higher risk of purchasing property with clouded title. Using examples from recent field work conducted by the University of Texas School of Law Community Development Clinic, I will discuss how widespread title problems are in many low-income communities and the personal as well as community-wide implications of these title problems. I will then explore the different barriers that families face in obtaining clear title to property in the United States, with a focus on Texas. In conclusion, I will examine some potential opportunities for reform, and ways in which policymakers, lawyers and law clinic students can be involved to ensure that our state legal systems of title and property ownership are accessible to all homeowners. |
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Rental Restrictions on Single Family HomesWatch Video
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Ngai Pindell Professor of Law, William S. Boyd School of Law |
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| In recent years, community associations and cities have increasingly employed provisions that restrict the renting of single family houses. Community associations enact these provisions as private restrictions in deeds while cities enact ordinances or insert these provisions as contract terms within development agreements with developers. The motives for these provisions vary — they arguably help to deter investors from purchasing homes and renting them out, maintain property values and deter vacancy. But they are challenged under several legal doctrines and statutes including takings, due process, the dormant commerce clause, authority and the Fair Housing Act. I will evaluate the usefulness and future of these provisions in light of their legal and policy challenges. In particular, what is the likely effect of these restrictions on the availability of housing for low income households? Do they maintain stable communities by preventing speculators from wildly inflating housing values or do they limit rental and ownership opportunities for lower income residents? | ||
Putting the Trust Back Into the Land: An Examination of the Role that Land Trusts Can Play in Securing the Benefits of Brownfield SubsidiesWatch Video |
Sarah L. Coffin Assistant Professor of Public Policy Studies, Saint Louis University |
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| While U.S. policy makers less well-versed in the nuances of brownfield redevelopment have been reluctant in the past to promote residential reuse of brownfields, evidence from the field seems to suggest otherwise. Brownfields are presently being redeveloped as luxury housing projects in many communities across the United States as increasing demand for urban housing force cities to seek creative solutions to downtown housing shortages. This increase in demand for brownfields is not unique to market rate housing. Habitat for Humanity, a non-profit housing agency that builds affordable housing in the United States, recently received a signed memorandum of understanding with the U.S. EPA that essentially allows the housing agency to begin building housing on brownfields with minimal agency oversight. The U.S. EPA blessing represents an important policy shift for the agency, suggesting a pivotal turn away from the historically stringent regulatory enforcement focus and toward a proactive policy of redevelopment. But regulatory willingness to allow the development of affordable housing on brownfields is only part of the equation. Most affordable housing projects across the United States depend on some form of financial subsidy with federal, state and local governments providing considerable financial assistance for the developer. When potential brownfield concerns complicate the equation, many of these projects fall apart as affordable housing developers are often ill prepared for the added expense associated with a brownfield investigation. Further, local government officials often lack the capacity to develop programs to assist housing developers with brownfield issues. With dwindling resources and rising demand for affordable housing, cities are struggling to find projects that will promote longer-term community development goals in a way that extends the benefits of the limited financial subsidies these communities have to offer. I will examine the use of community land trusts as a means to extend the benefit of scarce public subsidies and program resources by locking the benefits into the land rather than tying them to the home buyer, exploring the issue of place-based intergenerational equity as it relates to brownfield and other housing subsidies. The community land trust maintains permanent affordability of the home from homeowner to homeowner. Thus, public subsidies that lower the cost of redevelopment to make it affordable remain locked in the project from generation to generation through the land trust vehicle; thus extending this subsidy investment beyond the first homeowner. The implications from this research suggest that market mechanisms can be developed that promote longer-term community development benefits for communities struggling to extend scarce public redevelopment dollars. |
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| 11:30 AM | Lunch on your own | |
| 12:15 PM | Urban Neighborhoods: Can the Stimulus Package Reverse the Course of the Last 40 years?Watch Video
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Richard D. Baron Chairman and CEO, McCormack, Baron & Salazar |
| 1:00 PM | Session two |
Moderator |
Property Rights and Economic Stability in the International Context
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Nancy H. Kaufman Professor of Law, Saint Louis University School of Law |
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Land Tenure, Titling, and Gender in BoliviaWatch Video |
Susana Lastarria-Cornhiel Senior Research Scientist, Department of Urban and Regional Planning, University of Wisconsin-Madison |
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| Bolivia's formal legal system has long recognized equal rights for both women and men, including the right to own property, to inherit and to marital property (community property). Customary norms and practices, however, showed a strong bias against women owning land. Husbands controlled household land and when land was formally titled, generally only the husband's name appeared on the documents. At the time of inheritance, land usually passes from father to sons, although widows are permitted to remain on the property. Recent legislation on land rights has strengthened the language regarding women's land rights and the on going titling program for rural land is based on that law. Review of titling data and interviews with key informants, however, reveals that women are still not treated equally with regard to land rights. I will examine how customary norms regarding gender and land rights continue to exert greater strength than legal norms, even in the context of state land programs. |
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Past Property Theft in Nascent DemocraciesWatch Video |
Bernadette Atuahene Assistant Professor of Law, Chicago-Kent College of Law |
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| In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people's beliefs about the legitimacy of the property distribution or by enacting a Legitimacy Enhancing Compensation Program (LECP), which strengthens the average citizen's belief that she ought to comply with the law. Fourth, I develop the concept of a legitimacy disequilibrium, which is a decision-making framework that helps states decide if they should provide compensation to avoid instability. The framework requires states to weigh the cost of compensation against the cost of illegitimacy so I give a detailed description of what these costs entail. To best promote long-term stability, I argue that states should enact a LECP when the cost of illegitimacy outweighs the cost of compensation. Lastly, I outline the process a state should use to weigh the costs and decide whether to provide compensation for past theft to prevent things from falling apart. |
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| 2:10 PM | Break | |
| 2:30 PM | Session Three |
Moderator |
Barriers to AffordabilityWatch Video
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Peter W. Salsich Jr. McDonnell Professor of Justice in American Society, Saint Louis University School of Law |
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Poverty, Shared Equity Housing and the Cultural Construction of PropertyWatch Video |
Michael R. Diamond Director, Harrison Institute for Housing and Community Development, Georgetown University Law Center |
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| A question that has concerned legal scholars and political philosophers, but not the general public, for centuries is the content of the concept Aproperty. American society has had, throughout modern history, an understanding of property based on a Lockean view of liberty and freedom to contract. While even Locke envisioned societal restrictions on the use of private property (he required property users to leave "enough and as good" for others), his model of property as an element of market exchange gained primacy in American legal and political thought. I argue, first, that this view of property has not been the reality in American thought; and second that normatively it should not be the view. This is particularly true in the context of affordable housing for low income home-buyers. One of the socio-economic dichotomies in the field of low-income homeownership is the conflict between preservation of affordability and wealth creation. In a world of limited resources, society cannot simultaneously maximize for both. To the extent society places a priority on preservation by imposing use and resale restrictions on publicly financed affordable housing, it takes from the owner one of the "sticks" in the bundle of traditionally recognized ownership sticks. I trace understandings of property through time and among various cultures. I then examine the legal/political thought concerning property in American history. Finally, I discuss the historical body of thought in the context of affordable housing in modern American society. I argue that the restrictions placed on publicly financed home ownership are in keeping with other restrictions normally imposed by society on a variety of property owners and that such restrictions enhance overall societal wellbeing. As such, I argue, the traditional understanding of property is descriptively inaccurate and normatively misguided. |
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Homes Affordable for Good: Covenants and Ground Leases as Long-Term Resale-Restriction DevicesWatch Video |
James J. Kelly Jr. Assistant Professor of Law, University of Baltimore School of Law |
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| Covenants, servitudes and ground leases have been, and continue to be, used to create shared spaces that are fundamentally, and often invidiously, exclusive. Famously made a dead letter in the case of Shelley v. Kramer, covenants banning resale to nonwhite households put the force of law behind the segregated birth of America's suburbs. Today, gated residential communities and shopping malls assure a degree of class exclusivity through covenants and commercial ground leases, respectively. These same legal mechanisms, however, are now deployed to assure long-term inclusion as well. Developers of affordable housing are creating homes that are not only beneficial to the original homeowners but also available for future generations of qualified homebuyers. When selling the newly developed homes, they are having subsidized homeowners promise to pass the good deals on to future homebuyers. These resale restrictions allow single-family homes to be sold, and later resold, to low and moderate-income households in neighborhoods that would otherwise be unavailable to them. Affordability protections of 15 years or less are relatively common and can be achieved through a number of legal arrangements. Common law and statutory hostility to long-term private arrangements that limit alienability, however, have made the search for perpetual affordability more challenging. Those seeking to sustain economic diversity in residential communities over multiple generations of homeowners have turned to covenants authorized by statute and ground leases as the vehicles by which these promises can be enforced. As stand-alone enforceable promises that run with land, covenants have become the primary vehicle for inclusionary zoning programs that seek to preserve the mixed-income nature of affected for-profit housing developments for the long haul. Community Land Trusts have generally preferred the ground lease, a standard device for shopping mall creation, to ensure that subsidized single-family homes developed by nonprofit housing organizations can remain affordable forever. As economic diversity in communities is given its proper place as a long-term goal for America's metropolitan areas, 21st century real estate law will need to integrate both covenants and ground lease reversion interests as stable, effective means of enforcing affordability-preserving resale restrictions. In addition to arguing for the importance of both covenants and ground leases as affordability conservation mechanisms, this article will analyze and evaluate each device as to its effectiveness in achieving the development goal of creating and sustaining economically diverse communities of choice. |
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Right for Renters in Restoring American ProsperityWatch Video
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Barbara L. Bezdek Professor of Law, University of Maryland School of Law |
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| We have begun to see the various "memos to the President" about different aspects of federal policy, including agendas for the Brookings Institution's summit set for January 2009. While there is lots of breast-beating about the subprime meltdown and the role of homeownership fever in under-regulation and overextension, the other component is the lapse of a national commitment to affordable housing needed by renters. I'll be looking at the various proposals to make sense of our future as a nation that includes renters — students, young singles and families, mobile workers, elders, poor/disabled and millions of households whose wages have not kept up with housing costs. Shared-equity ownership may offer a private-market, hybrid form of ownership that will serve some households, yet millions more will continue to need adequate housing on a rental basis. This is not provided by public housing agencies since, for the last 30 years, the federal government's public housing policies have permitted the elimination of inventory of publicly owned, publicly subsidized rental housing, and the public vouchers for qualifying renters serve only a fraction of those who are eligible. The private market doesn't fill this gap. Community-benefit strategies may aid renter households in neighborhoods facing loss of affordable housing by gentrification, and so may renter tax credits, modeled on the earned income tax credit. |
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| 3:45 PM | Concluding Remarks |
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| 4:00 PM | Conference Concludes |
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