Barriers to Housing and Property Ownership

Real more about it


 Jennifer Lindsley  |    April 12, 2021
Barriers to Housing

Many of us have been spending significantly more time at home over the last year due to the COVID-19 pandemic. What was once the place where you slept or retired from the outside world after a long day may have become your office, your restaurant, your children’s school, and your space for socializing even if the socializing was virtual. Others may have experienced a threat to the place they call home due to inability to pay rents or mortgages. Housing insecurity affects every aspect of life: physical health, mental health, education and general well-being. In light of the value of having a safe and secure place to call home, it is worth exploring historical and contemporary barriers to housing and property ownership.  

Evicted: Poverty and Profit in the American City by Matthew Desmond 

Evicted: Poverty and Profit in the American City explores poverty as a barrier to housing by following eight families in our own backyard of Milwaukee. Published in 2016, this book follows eight Milwaukee families as they struggle to obtain and maintain housing. The author follows several individuals and families in their journey as tenants but also included input from landlords renting to tenants living in poverty. To research this book, Desmond first moved into a trailer park on Milwaukee’s southside for five months, where his neighbors were largely white, and then moved into a rooming house on the northside for nine months, where his neighbors were largely black. 

This book tells the story of many individuals: a woman with two children who at one point was spending 88% of her income on rent, a disabled veteran struggling with housing, a young person who recently aged out of the foster care system, a nurse who had lost his nursing license due to substance abuse, and others trying to navigate securing housing. The stories of these individuals and families explore how they ended up in poverty, barriers to moving out of poverty, and what that means for their access to housing. Additionally, the author explores the consequences of being evicted, including challenges to finding housing in the future, loss of belongings, school disruptions and many others. Desmond found that not only did eviction disproportionately affect Latino and African American neighborhoods, but gender played a role in who is experiencing evictions. In an interview in The Atlantic in 2016, Desmond stated, ‚ÄúThe face of the eviction epidemic is moms and kids, especially poor moms from predominantly Latino and African American neighborhoods. We found that about one in five African American women renters report being evicted at some point in their lives. The equivalent is about one in 15 for white women renters.‚ÄĚ Evicted: Poverty and Profit in the American City gives readers a firsthand look at the extreme challenges those living in poverty have in securing and maintaining housing.¬†

For more information about Evicted: Poverty and Profit in the American City, visit www.evictedbook.com. 

The Color of Law: A Forgotten History of How Our Government Segregated America by Richard Rothstein

When discussing race and barriers to housing, Richard Rothstein‚Äôs The Color of Law is frequently one of the first books cited as a resource to understand how explicit government policies at local, state and federal levels have created and preserved segregation in the United States. Published in 2017, The Color of Law challenges the notion that segregation in where people live was ‚Äúde facto‚ÄĚ segregation resulting from individuals choosing where they wanted to live based on the color of skin of their neighbors but rather the result of government policies.¬†

The author starts the discussion of those government policies by looking at two policies coming from the 1930s federal government and the New Deal. One such policy was the first public housing program that frequently demolished integrated public housing to create segregated public housing. A second policy was federal government subsidization of developers creating subdivisions on the condition that the properties developed would only be sold to white families. The author cites the Federal Housing Administration‚Äôs role in creating segregated neighborhoods by subsidizing developments such as Levittown, New York, but restricting the sale of properties to white people and including deed restrictions that prohibited the resale of those properties to African Americans. Courts upheld challenges to these deed restrictions because they were coming from ‚Äúprivate individuals‚ÄĚ and not the government.¬†

Furthermore, the FHA would not insure loans made to African Americans, depriving many potential homeowners of the benefits of FHA financing. The book also looks at the role zoning has had in perpetuating segregation. In particular, the practice of redlining where communities were mapped and some sections colored red and the FHA would refuse to insure loans in those neighborhoods on the premise that if African Americans bought homes in or near white neighborhoods, the value of the property owned by white property owners would fall, jeopardizing the value of the asset securing the insured loan. Blockbusting is also covered, in which developers would buy properties in what were described as ‚Äúborderline‚ÄĚ neighborhoods and sell them to African Americans at inflated prices. The developers would then approach white property owners and convince them to sell properties at a depressed price before the neighborhood turned from white to African American. The Color of Law is a comprehensive history of affirmative actions by various levels of government that continue to drive segregation and create barriers to housing for African Americans.

An overview of the arguments advanced in The Color of Law can be reviewed in the short film ‚ÄúSegregated by Design,‚ÄĚ which is available at www.segregatedbydesign.¬†¬†

‚ÄúKicked off the Land: Why So Many Black Families Are Losing Property‚ÄĚ by Lizzie Presser

www.newyorker.com/magazine/2019/07/22/kicked-off-the-land

In this 2019 article, Lizzie Presser examines an issue that is not a barrier to obtaining property but rather a system that is causing property owners to lose property they already own. Often the property that is being lost is property that has been in the owner’s family for generations. At issue in this article is what happens to property when it is left to future generations without a will. Consider Farmer Smith, who owns a 40-acre parcel, does not have a spouse and has four adult children. Farmer Smith does not have a will and passes way. When a person dies without a will, distribution of that person’s property will be dictated by the laws of intestacy. Typically, by the laws of intestacy, the four adult children will become tenants-in-common owners of the property. Now consider what happens if those four adult children each also have four adult children and no spouses and no wills when they pass way. The Old Smith Farm now has 16 owners of the 40 acres as tenants-in-common. In just two generations of deceased property owners, the parcel once owned by Farmer Smith is now owned by 16 co-owners. Add in spouses and even more generations, the old Smith Farm now has dozens of owners with fractional interests. 

This type of property, where ownership is passed down over generations by the laws of intestacy because the decedent did not have a will, is referred to as ‚Äúheirs property.‚ÄĚ While having many property owners on title is not in itself the issue here, a problem arises when one of the owners sells their fractional interest to a new owner and that new owner files an action for partition. A partition action is when one owner seeks judicial authority to divide that owner‚Äôs interest from the remaining owners‚Äô interest. Again, the partition action itself is not the issue, but traditionally, courts have had the power to order the sale of the whole parcel if partition would destroy the value of the property. To demonstrate this, consider what would happen if one of the now 16 co-owners of the former Smith Farm is approached by a developer that wants that parcel and the developer makes an attractive offer to that one co-owner to buy that person‚Äôs 1/16th interest in the Old Smith Farm. Did I mention the Old Smith Farm just happens to have some water frontage? If the co-owner sells to the developer, the developer now has the ability to seek a partition lawsuit, most likely with the goal of having the court not grant the partition lawsuit at all but rather order the sale of the entire parcel, likely knowing that none of the other 15 co-owners has the financial ability to purchase the entire property but the developer does. The Old Smith Farm is offered for sale, the developer purchases it, and the Old Smith Farm is now a waterfront vacation getaway.¬†

In ‚ÄúKicked off the Land,‚ÄĚ the author traces the story of a few North Carolina families and their loss of ownership of property that had been in their families for generations, with some ownership dating back to the end of the Civil War. Their ownership became vulnerable in the same way as the Old Smith Farm became vulnerable as each generation added new owners with smaller and smaller shares. This article focused on African American owners, but the American Bar Association points out that this problem of heirs property affects Latino/Hispanic families in the Southwest, white families in Appalachia and Native American families throughout the country. For more information about heirs property, visit the Heirs Property Retention Coalition at http://hprc.southerncoalition.org/?q=node/5.¬†

Jennifer Lindsley is Staff Attorney and Director of Training for the WRA.

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