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Real property law theorist delivers UF Law Wolf Family Lecture in the American Law of Real Property

by Scott Emerson

FennellUsing abstract and provocative theories to address the dispossession of property as a result of Florida’s housing crisis, Lee Ann Fennell, professor of law, University of Chicago Law School, explored the complex relationship between property rights and continuity of possession during the March 17 UF Law Wolf Family Lecture in the American Law of Real Property.

"First of all, instead of thinking about possession, I want you to think about dispossession," Fennell said. "Unfortunately, this does not require a lot of imagination because we have this housing crisis going on around us and there is a lot of it happening right here in Florida."

According to RealtyTrac, a California-based real estate tracking company, one in 17 housing units in Florida had at least one foreclosure filing in 2009. The company also reported that in 2009, nearly one-half of Florida's residential mortgages were "underwater," a scenario where the value of the house is less than the balance due on the mortgage.

"So, we see a lot of dispossession happening around us and it causes a lot of concern," Fennell said. "As we abstract away from these statistics, we have a depressingly common scenario of a family living in a house they can no longer afford, whether it's because the mortgage has become unaffordable, or whether it's because the breadwinner has lost his or her job. Either way, we have a situation where we end up having property rights and possession pulling apart and something’s got to give."

Fennell explained that either property rights are going to be enforced in a way that cause possession to end, maybe very painfully, or property rights will have to be altered in some way that will allow possession to continue.

"We know that there is a great concern from a policy perspective with dispossession and it's not limited to these current crises," Fennell said.

"Similar issues about dispossession come up when we think about landlord-tenant law and we think about policies that are designed to help protect tenants against being displaced due to rising rent levels. We even see concerns about possession being brought up in other legal doctrines like adverse possession."

Fennell said that many scholars have written on the concerns of dispossession, including former U.S. Supreme Court Associate Justice Oliver Wendell Holmes Jr. when he gave one rationale for why we might have something like prescriptive rights or adverse possession, a principle of real estate law where somebody who possesses the land of another for an extended period of time may be able to claim legal title to that land.

In his 1897 Harvard Law Review article, "The Path of the Law," Holmes wrote "A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it."

"So we have this idea that dispossession is really bad," Fennell said. "If we think that dispossession is problematic, and if we also think that part of what property law is designed to do is to provide continuity of possession and stability of possession, then why is it the case that in the United States, where we have very well developed property rights, that we also have a lot of insecurity of tenure with a lot of people who might be at risk of losing their possessions."

Fennell explained that those suffering from home loss or are "underwater" is due to external forces that are outside of their control. "Could there be a way to have something that gives you more of what people really want from homeownership including the ability to stay in the home without necessarily carrying all of the risk?" she said.

Fennell suggested the development of local housing market indexes might be one way to address this risk.

"These indexes could be important because it potentially allows us to separate the home’s appreciation," Fennell said. "Was it due to some really clever remodel or was it because the housing market got better? If we have indexes that could kind of peg the initial purchase price to a certain level and look at how much home prices in the area have increased, it may offer a platform for being able to trade risk better."

The Wolf Family Lecture in the American Law of Real Property was endowed by a gift from UF Law Professor Michael Allan Wolf and his wife, Betty. Wolf, the Richard E. Nelson Chair in Local Government Law, is the general editor of a 17-volume treatise, Powell on Real Property, the most referenced real property treatise in the country, which is regularly cited by the courts, including several citations in the U.S. Supreme Court. Last year, Wolf condensed the 60 year-old treatise into Powell on Real Property: Michael Allan Wolf Desk Edition (LexisNexis 2009) and recently co-authored Land Use Planning and the Environment: A Casebook (Eli Press).

Past scholars who have delivered the Wolf Family Lecture in the American Law of Real Property include, Thomas W. Merrill, Charles Evans Hughes Professor of Law at Columbia Law School, and Gregory S. Alexander, A. Robert Noll Professor of Law at Cornell Law School.