Rethinking the Renter/Owner Divide in Private Governance

The revered status of American homeownership has deep and seemingly impenetrable roots. In our modern mythology/reality, the castles that shelter and nurture our pursuit of the good life are under siege. A narrative common to both popular media accounts and a burgeoning property literature warns that private homeowners’ associations hold dominion over millions of Americans, dictating what they may do with their property and foreclosing when they cannot pay association fees or fines. In response to this threat, legislatures, courts, and academics are fighting to stave off these intrusions by the content and use of constraining servitudes. In focusing on the harms to property owners, these critics have unjustifiably omitted renters—a large and growing segment of the population. Nearly every American rents living space at some stage of life, and rentals are expanding as the real estate market continues on its uncertain trajectory. Tenants have no less lofty life goals than do homeowners, yet they, too, are governed by private rules for property use that severely limit certain property uses and allow termination of their property interest through eviction or sale. The rules in rental communities, moreover, serve fundamentally the same purpose as those set by homeowners associations, which is to control neighbors’ uses to increase property value. The key difference between the two types of communities, beyond simple physical layout, lies in tradition: a woman’s home is her castle, but her apartment is her rickety tenement. Even this distinction is vanishing, however, as private communities with now-familiar “intrusive” rules continue their decades-old proliferation, objections notwithstanding. If, then, private governance of property is fundamentally problematic, it is no less problematic for renters. But if, as seems more likely, we are generally willing to accept certain private rules in communities as a reasonable response to the interests of both owners and tenants, critics of private governance must explain why traditional notions of property should prevail over a modern approach to property consumers’ demands

Equitable Remedies and Principled Discretion: The Michigan Experience

Article published in the University of Detroit Mercy Law Review

Designer Trials

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power. Such a clause could appear in a contract with an employer, a bank, a cell phone company, an internet service provider, a credit card company, a stock broker, a landlord, a doctor, a hospital, a school, a gym, a travel company or even an exterminator. With this clause, a potential institutional litigant has obtained many of the features that normally motivate businesses to require arbitration, but without the expense of arbitration fees, and without the necessity to litigate the validity of the arbitration clause or to sue to enforce an arbitrator\u27s decision. The contracting party who is a repeat player can tailor the litigation contract to suit its probable position in litigation. If the institutional party predicts that it would likely appear in court as a defendant, it can make choices that decrease the out-of-pocket cost of litigation, eliminate the threat of class actions, avoid a jury trial, and limit the bad publicity and proliferation of litigation made possible by public disputes. In addition, the contracting future defendant can include provisions likely to make it harder for the party with the burden of proof to prevail, such as limiting discovery and the presentation of evidence. If the institutional party predicts that it would likely appear in court as a plaintiff but is likely to be in a position in which it has pre-suit access to information, it will still want to limit discovery, speed the dispute resolution process, avoid publicity, and eliminate the jury. In either case, it can choose a favorable forum and the most attractive available law. Would courts enforce such a contract? If they follow precedent established in arbitration and jury waiver cases, they might easily do so. In the context of arbitration clauses, courts have enthusiastically endorsed freedom of contract, particularly when those contracts result in a perceived efficiency gain for the courts themselves. They have dismissed the differences between court procedures and arbitration procedures as insignificant unless the chosen arbitration procedures effectively deny a remedy or are unconscionable under state contract law. Yet restricting procedural choice within the public court system has implications beyond those of opting out of the system entirely. Ultimately, contractual modifications to court processes raise the issue of the extent and importance of the public purposes of the judicial system

The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention

Public concern about environmental quality is beginning to be felt in the courtroom. Private citizens, no longer willing to accede to the efforts of administrative agencies to protect the public interest, have begun to take the initiative themselves. One dramatic result is a proliferation of lawsuits in which citizens, demanding judicial recognition of their rights as members of the public, sue the very governmental agencies which are supposed to be protecting the public interest. While this Article was being written, several dozen such suits were initiated-to enforce air and water pollution laws in states where public agencies have been created for that purpose; to challenge decisions of the Forest Service about the use of public land under its control; to question the Secretary of the Interior\u27s regulation of federal offshore oil leases; and, in a myriad of cases against state and local officials, to examine airport extensions, highway locations, the destruction of parklands, dredging and filling, oil dumping, and innumerable other governmental decisions dealing with resource use and management

American Dream in Flux: The Endangered Right to Lease a Home

Homeownership in the US is on the decline and the percentage of the population that rents their residence is growing. Renters present a distinct demographic compared to owners, and most of the more vulnerable segments of society rent their homes. But the law prohibits renting a home in some neighborhoods. Occasionally, zoning provisions hamper the ability of would-be tenants and would-be landlords to rent. More typically, however, community restrictive covenants are what block rentals. Zoning prohibitions on rentals have been attacked as violations of property rights. But in condominiums and other privately governed neighborhoods, segregation of renters from owner occupants has been continually upheld by the courts and has been consistently promoted as policy by government and quasi government entities. These policies and legal structures harm not only the rights of would-be landlords but also would-be tenants in such communities. Community rental restrictive covenants perpetuate broader social harms as well. It is time to rethink the desirability of these restrictions, even in the private context of neighborhood covenants