POST-KATRINA REBUILDING AS AN OPPORTUNITY FOR A NEW CONVERSATION: DISPOSSESSION AS A PROPERTY CONCEPT

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1 POST-KATRINA REBUILDING AS AN OPPORTUNITY FOR A NEW CONVERSATION: DISPOSSESSION AS A PROPERTY CONCEPT Carol Necole Brown * and Serena M. Williams φ Hurricane Katrina and the subsequent failure of the levees resulted in the dispossession of thousands of residents throughout the Gulf Coast region. Our article, The Houses that Eminent Domain and Housing Tax Credits Built: Imagining a Better New Orleans, 1 was in essence a proposal for ameliorating the plight of the dispossessed through a public-private partnership that would combine use of the government s power of eminent domain with low-income housing tax credits to incentivize developers to rebuild the affordable housing stock in post-katrina New Orleans. Professor Murray recounts the social failures in the years after Hurricane Katrina that undermined the potential success of the efforts to rebuild New Orleans. 2 We contend that Professor Murray is * Carol Necole Brown, Professor of Law, The University of North Carolina School of Law. For my husband, Paul Clinton Harris, Sr.; my daughters Reagan Mackenzie Harris and Hannah Madison Harris; and my parents, the late Allen S. Brown, Jr. and the late Valerie J. Brown, Jr. Serena M. Williams, Professor of Law, The Widener University (Delaware) School of Law. φ Suggested Citation: Carol Necole Brown & Serena M. Williams, Post-Katrina Rebuilding as an Opportunity for a New Conversation: Dispossession as a Property Concept, 40 FORDHAM URB. L.J. CITY SQUARE 1 (2012), FORDHAM URB. L.J. 689 (2007). 2. See Kali Murray, Response, The Failure of Our Good Intentions: Property and Dispossession in Post-Katrina New Orleans, FORDHAM URB. L.J. CITY SQUARE 101 (2012), 1

2 2 FORDHAM URB. L.J. CITY SQUARE [Vol. XL right dispossession can be a framing concept of modern property law. However, to move to a property law framework that considers dispossession as well as possession requires a new conversation, since property law is a response to a societal conversation about what interests are valued and whose interests will be protected. Although not often labeled, dispossession is a concept embedded in modern property law. We offer three contemporary examples that illustrate the dominant presence of dispossession even when that term is not used: (1) eminent domain, (2) adverse possession, and (3) foreclosure. In addition, in all three examples the possessors are, in some sense, innocently dispossessed possessors who through no fault of their own find themselves landless, or in the residential context, homeless. Eminent domain played an important role in our proposal because through eminent domain, the government could acquire low lying areas that were inappropriate for residential use and provide funds for former residents to obtain more appropriately located affordable housing and desegregated housing in other parts of the city. At its core, eminent domain is about giving government the tools to promote public projects for a public purpose and for public use. However, the unavoidable consequence of the exercise of eminent domain is dispossession. When we speak of eminent domain, we do not expressly use the term dispossession, but the concept is embedded in the very power of eminent domain, in the very act of removing a possessor for the public good, thus creating the dispossessed. Modern property law is actively addressing the dispossession that results from eminent domain. In 2005, the United States Supreme Court revisited the boundaries of the public use requirement under the Takings Clause of the Fifth Amendment to the United States Constitution in the case of Kelo v.

3 2012] POST-KATRINA REBUILDING 3 City of New London. 3 The Court upheld economic development takings and articulated a broad interpretation of public use. The Court also stressed that deference must be afforded to the states determinations of public purpose. 4 Many were concerned that the Kelo decision would make it too easy to dispossess citizens of their private property through transfers to private developers under the guise of pursuing the public good through economic development. In the aftermath of Kelo, there were numerous state judicial responses in which state courts rejected the Kelo rationale in applying their own state constitutional provisions on eminent domain. 5 For instance, in City of Norwood v. Horney, the court held that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of the Ohio State Constitution. 6 In Mayor and City Council of Baltimore City v. Valsamaki, the court rejected business expansion in the context of expedited condemnation as meeting the public use requirement. 7 A final U.S. 469 (2005); see also Carol Necole Brown, Kelo v. City of New London and the Prospects of Development After a Natural Disaster, in PRIVATE PROPERTY, COMMUNITY DEVELOPMENT AND EMINENT DOMAIN (Robin Paul Malloy ed., 2008) (discussing whether the decision would inevitably result in increased gentrification and class segregation of urban areas following natural disasters). 4. Kelo v. City of New London, 545 U.S. 469, 489 (2005) ( We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose public use requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. ). 5. See infra N.E.2d 1115, 1142 (Ohio 2006) A.2d 324, 344 (Md. 2007) (stating that the affidavit attached to the petition for immediate possession and title only provides that immediate possession is necessary in order to assist in a business expansion in the area. This statement, in and of itself, while perhaps

4 4 FORDHAM URB. L.J. CITY SQUARE [Vol. XL example is County of Hawaii v. C&J Coupe Family Limited Partnership in which the court held that although our courts afford substantial deference to the government s asserted public purpose for a taking in condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner s defense of pretext. 8 Thus, post-kelo, some states interpreted their property rights legislation and constitutional provisions in a manner that was responsive and accountable to the dispossessed by making it more difficult to effectuate a Kelo-type taking. The Kelo decision can be viewed as an egregious case of dispossession of crucial property: the home. Following the decision, many states responded to address the conversation of dispossession for the purpose of economic development and decided to afford greater protection to those threatened with dispossession in this type of context. Thus, the aftermath of the Kelo decision is a contemporary example of one method of incorporat[ing] a conceptual experience of dispossession that Professor Murray 9 recommends. The law has used a threat of dispossession to incentivize certain behavior towards property. For example, adverse possession rewards the trespassers who behave like possessors for a sufficiently lengthy period of time; consequently, the record owner is dispossessed and the adverse possessor gains title consistent with her outward behavior towards the property. That an owner can be dispossessed comes as a surprise to many and often leads to public outrage when a case is publicized. In a Colorado case of adverse possession, a retired judge and his wife acquired sufficient to justify regular condemnation, does not justify a quick-take condemnation. ) P.3d 615, 620 (Haw. 2008). 9. Murray, supra note 2, at 2.

5 2012] POST-KATRINA REBUILDING 5 title to a portion of their neighbor s land by using, for twenty-five years, property that they knew did not belong to them. 10 In response to this intentional dispossession, the state of Colorado amended its adverse possession statute to give greater protection to owners who might be dispossessed through adverse possession. 11 The statute now adds a good faith requirement and permits those who are adversely possessed, i.e., the dispossessed, to seek compensation for the loss of title. The statute also heightened the burden of proof required for adverse possession from a preponderance standard to a clear and convincing standard. 12 Professor Murray mentions the ongoing housing crisis that began in One of the consequences of the housing crisis has been the increase in foreclosures. In many instances, these foreclosures were of mortgaged property being rented by tenants who were properly paying their rent. When the owner defaulted on the mortgage loan and the lender chose to foreclose the mortgage, the tenants found themselves dispossessed. Again, concern arose about the inequity of the tenant who was in compliance with the lease, but who lost possession because the owner was not making the mortgage payment. To address the tenant s plight of dispossession, Congress passed the Protecting Tenants At Foreclosure Act of 2009, 13 giving some form of protection to the dispossessed tenant by requiring a 90-day notice to vacate if the underlying mortgage was federally related. While not full protection against the loss of a home, the law was 10. McLean v. DKTrust, No. 06 CV 982, slip op. at 1 (Dist. Ct. Colo. Oct. 17, 2007). For a discussion disfavoring adverse possession, see Carol Necole Brown and Serena M. Williams, Rethinking Adverse Possession: An Essay on Ownership and Possession, 60 SYRACUSE L. REV. 587 (2010). 11. Colo. Rev. Stat (2011). 12. See id. 13. Pub. L. No , 123 Stat. 1632, (2009).

6 6 FORDHAM URB. L.J. CITY SQUARE [Vol. XL designed to temper the negative consequences of the dispossession of tenants who were paying their rent. These three examples show that the concept of dispossession meanders like a river throughout all property law doctrines. To recognize it as a key doctrinal principle 14 as Professor Murray suggests requires more than simply a change in the law. It also requires a change in the broader conversation about what it means to possess property and what it means to be dispossessed of property. There must be an opportunity for a new conversation about the consequences of that dispossession and about the plight of the dispossessed. Opportunity has been called a critical component of postdisaster recovery and is defined by the extent to which a community uses a disaster as an occasion not simply to return to normal, but also to achieve a new and better standard of living. It means retaining assets and correcting flaws while rebuilding. 15 Certainly, post-katrina is an opportunity to have the conversation about the recognition of dispossession in the law. 14. Murray, supra note 2, at BROOKINGS INSTITUTION, RESILIENCE AND OPPORTUNITY: LESSONS FROM THE U.S. GULF COAST AFTER KATRINA AND RITA 6 (Amy Liu et al. eds., 2011).