Imagine if your local government claimed the right to expropriate your beloved home to build a road or park, or let a private developer do as he pleases (Kelo v. New London in 2005).
To make matters worse, you were not given an offer to pay the market and sale value of your home. And to make matters worse, there is no offer of compensation either. It feels like you are being given a frivolous 60-day notice, like you are a tenant with no ownership rights. Yet you saved up to buy this, have probably built up equity, have added personal touches to make it a warm and cozy home, and perhaps had hopes of passing this quaint home down to your children.
Such abrupt land expropriations are often harsh and emotionally distressing, even when supposedly “just” compensation (our Fifth Amendment right) is offered. Yet they seem particularly egregious when little (or no) monetary offer is made, because “just compensation” historically has not been required to correspond to “fair market value.”
Unfortunately, for some today (like these homeowners in Mississippi, Georgia, Georgia (again!) and South Carolina, to name a few), this isn’t just an exercise in idle imagination or a history lesson. (Speaking of history, did you know that between 1949 and 1973, over a million people – some of whom are still alive – were reportedly forced from their homes due to unjust evictions?)
Instead, it is a nightmare that only media attention and sustained public resistance have been able to stop.
Can expropriations ever be fair?
Fair. Equal. Impartial. Unbiased. Unprejudiced. Non-partisan. Non-discriminatory. Objective. Neutral.
These are all synonyms for “fair,” but in the housing sector – be it owned or rented – I’ve found that many have unspoken expectations that relate to these words.
In order to achieve the “meeting of minds” necessary for smooth transactions, there must be a common understanding of what “fair” means, going beyond legalese or simply citing statutes, amendments and protected classes to support and implement day-to-day operations.
In short, fairness has seven components. Three of these typically require collective action (substantive, retributive, and restorative), but four (distributive, interactional, informational, and procedural) are within the control of everyday practitioners. Of the seven, let us consider the procedural fairness that affected homeowners displaced from their homes by expropriation may lack.
Prioritizing procedural fairness
Procedural justice or procedural equity refers to the fairness of the processes and methods used in decision-making and dispute resolution.
The most important elements of procedural fairness include:
transparency: The processes and criteria used to make decisions should be open and transparent to all parties involved in the real estate transaction. This includes providing information about how decisions are made and on what basis. In short, homeowners should not be the last to know that their property is being seized, as in this New Jersey case.
consistency: Procedures should be applied consistently in similar cases and situations. This will ensure that decisions are not made arbitrarily and that similar circumstances are treated consistently. Consistency is especially important for our low-income seniors.
impartiality: Decision makers should be neutral and unbiased. They should not have a personal interest in the outcome. They should not show favoritism or prejudice towards any of the parties involved. This is a difficult issue in local governments.
Legal hearing: People affected by decisions should be able to put forward their views and evidence. This often includes the right to complain to management. This is an internal policy improvement that many can still make today!
Right to legal representation: People have the right to seek legal advice during the decision-making process (this may be free from HUD or a local fair housing agency) and should not be forced to sign anything without first consulting such an attorney.
Reasoned decisions: Decisions should be evidence-based, and relevant information and supporting documentation should be presented to the aggrieved homeowner. The rationale for decisions should be clearly stated, explaining how conclusions were reached and why certain actions were taken. For homeowners who have been told (and believe) that homeownership is their key to the American Dream, evictions are confusing, as if the rug is being pulled out from under them. A reasoned decision can help a homeowner move through the stages of grief due to eviction and reduce the distress involved (cf. Rev. Michael Haynes attributed his mother’s heart attack to the stress of the abrupt, cruel eviction).
Review and appeal: There should be mechanisms to review and challenge decisions. This would allow for the correction of errors and ensure accountability in the decision-making process.
It’s upsetting to be forced to sell your home when that wasn’t the plan, especially when you’re not compensated in a way that makes the effort worthwhile. Thankfully, reforms are beginning to emerge in these areas through legislative discussions such as this one (which recommends greater transparency in valuation) and this one (which would mandate that property owners be compensated more than market value, again due to the effort involved).
But why wait for collective legislative reform? These proactive practices can be made an internal policy by any housing professional (especially you, the developers). Plus, here’s a guide to advocating for our community members. You never know if your home will end up on the hit list for the next project.
This column does not necessarily reflect the views of the editorial staff and owners of HousingWire.
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