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Housing Law
University of North Carolina School of Law
Daye, Charles Edward

Housing Law
Professor Charles Daye
Spring 2011
Chapter 1: Overview: The Social, Political, Economic, and Policy Matrix
Dimensions of the Housing Problem
The State of the Nation's Housing 2008
Prior to 2001 recession, Federal Reserve began cutting interest rates, and home sales began to take off soon afterward.
Access to low cost mortgage credit led to median home prices increasing multiple times faster than incomes for several years in a row
By the third quarter of 2006, nominal house prices turned down and interest rates on adjustable loans began to reset, setting the housing crisis into motion
Meanwhile, minority homeownership was on the rise during this period, and housing assistance grew smaller and smaller at the federal level
The Permanent Housing Crisis: The Failures of Conservatism and the Limitations of Liberalism
Shared Policy Assumptions on Housing:
Primacy of the Profit-Driven Market
Preference for Demand-Side as opposed to Supply-Side Policies
Subservience to the Private Real Estate and Housing Industry
Homeownership as a Cardinal Goal
Opposition to Government Action and Limitation of Moral Concern
Continuing Failures of Housing Policy:
Permanent Exclusion at the Bottom
Insecurity in Housing Occupancy
Segregation and Discrimination Based on Race
Environmental Degradation
Increasing Problems of Affordability
Affordable Workforce Housing Concerns and the Foreclosure Crisis
Affordable Workforce Housing Issues
Housing becoming a greater and greater percentage of income for working families
Federal housing subsidies not considered an entitlement
Income of $37,105 is necessary in order to afford the national average $928/month for a two bedroom rental unit
Subprime Mortgages and the Housing Market Collapse
Prevalence of subprime loans secured by adjustable rate mortgages caused the housing collapse of 2007-2009, granted to borrowers who would otherwise be denied credit at a premium above the prevailing market rate
Loans were bundled into pools of 100 to 10,000 and sold off as securities, between 04-06, 2,500 banks, thrifts, credit unions, and mortgage companies made a combined $1.5 trillion, primarily in poorer communities
The Foreclosure Crisis
The deregulation of lenders, the popularity of refinancing, the rise of subprimes and predatory lending, along with the promotion of homeownership, led to the foreclosure crisis
Millions abandoned homes with mortgage payments in excess of value, had over-invested in a rising market and found themselves deep underwater
Community Reinvestment Act promoted homeownership in redlined neighborhoods through govt sponsored enterprises (Fannie Mae and Freddie Mac) assuring available capital by purchase of mortgages, had to be bailed out but were not the major force in promoting subprimes.
Lenders have been reluctant to secure and maintain foreclosed buildings, some have decided not to foreclose in order to avoid the responsibility, leaves a “toxic title” that cities have no recourse to enforce housing codes on or ability to arrange a sale.
Home Affordable Modification Program, passed as part of 2009 stimulus, attempted to lower or postpone mortgage payments, but not always easy to obtain or still afford.
The Case for Megapolitian Growth Management in the 21st Century: Regional Urban Planning and Sustainable Development in the United States
Planning and zoning policies are shifting to a larger regional and state scale, with an eye on sustainability
Increased recognition of the unsustainability of low-density, automobile dependent regional sprawl
Increasing recognition that local individual low-density zoning, parking, and growth management are causing sprawl
Increasing awareness of the critical importance of urban planning and related public and private built environment, transportation, and infrastructure investment decisions to resource and energy consumption
Homelessness
While analysts and policymakers agree that a lack of sufficient affordable housing is the leading cause of homelessness (ahead of unemployment, poverty, domestic violence, substance abuse, and mental illness) they have disagreed on the proper response
Broadly speaking, structural causes determine the size of the homeless population in a given community, while personal characteristics determine exactly who will fall into that hole and who will not.
City of Woodinville v. Northshore United Church of Christ
Church using its property to house a moveable homeless shelter applies for temporary use permit from the city, denied by city based on moratorium on all land use permit application in their residential zone, pending completion of a study on sustainable development
Church alleges violation of article I, section 11 of Wash. constitution, which guarantees freedom of conscience in all matters of religious sentiment, belief, and worship.
Court holds that the city cannot apply the moratorium, provided the belief is sincere and the action burdens the exercise of that belief, without the government showing it is a narrow means for achieving a compelling goal.
The Strategy of Social Response
Urban Housing Policy
Filtering Image: Housing trickles down, so accelerate the process by subsidizing middle class housing development.
Problem: It disregards the eventual bottom of the market
Obsolescence Image: Urban decay is inevitable, and will decline faster than housing values.
Low Income Image: Houses remain too nice to be affordable for the next level of buyer when the current level is ready to move
Problem Family Image: Poor people bring decay and decline with them
Greedy Investor Image: Landlords are dicks to the poor, never bail them out
Racial Image: Corral all the black folks in urban centers and let white flight run free (response: aggressive FHA litigation)
Social Fabric Image: Those left behind in decaying communities have less time, motivation, and ability to keep them up.
Government and Slum Housing
Two Key Ways of Addressing The Slum:
Social Cost: Costs imposed by the slums on society at large

s against tenant wishing to appeal from adverse FED decisions. It heavily burden the statutory right of an FED defendant to appeal, and is not necessary to effectuate the State's purpose of preserving the property at issue.
A Right to Housing and the Challenge of Homelessness
Do We Need a Right to Housing? 
Is housing a better point on emphasis than health care or employment?
“Social pathology case” that bad housing= moral decline is difficult to prove
However, well designed housing can assist with social services, job training, and other programs
Housing, house, home?
Elements of empowerment, belonging, and control are associated with each
Homeownership, though attractive, cannot on its own provide a comprehensive affordable housing solution
International Perspectives on a Right to Housing
The Habitat Agenda
We reaffirm our commitment to the full and progressive realization of the right to adequate housing as provided for in international instruments. To that end, we shall seek the active participation of our public, private and non-governmental partners at all levels to ensure legal security of tenure, protection from discrimination and equal access to affordable, adequate housing for all persons and their families.
We shall work to expand the supply of affordable housing by enabling markets to perform efficiently and in a socially and environmentally responsible manner, enhancing access to land and credit and assisting those who are unable to participate in housing markets.
The Scottish Experience
Eligibility requirements for Scottish Housing Plan:
Meet definition of homelessness
“Priority need” category, such as pregnancy, dependent children, old age, illness, disability, fire, or flood
Not be homeless intentionally
Local connection (residence or employment) to the jurisdiction where assistance is sought.
Philisophic Attitudes Influencing the Right to Housing Debate
Property and Need: The Welfare State and Theories of Distributive Justice
Rawls: Liberty, Equal Opportunity, and The Difference Principle; argues that economic assets must be distributed to minimize the differences between the haves and have nots to guarantee them access to liberty and opportunity.
Nozick: economic assets come into being with individual claims of ownership attached to them.  Those claims are claims of moral right; coercive dispossession of assets owned by another is theft.