Imagine that the local government where you live is invoking eminent domain over your dear home to build a road or park, or to let a private developer do as they wish (Kelo v. New London, 2005).
Even worse, no one is willing to pay you the fair market and sales value of your home. To add insult to injury, no compensation was offered. It feels like you were given a frivolous 60 day notice, as if you were a tenant without title. However, this is where you save up to buy, potentially have the financial equity to accumulate, add personal touches to make it a warm and cozy home, and perhaps wish to pass this quaint abode on to your children.
Such sudden land takings, even with so-called “just” compensation (our Fifth Amendment rights), are often difficult and emotionally draining. Still, they seem particularly egregious when monetary quotes are lower (or absent), since “just compensation” historically has not necessarily reflected “fair market value.”
Sadly, for some today (like Mississippi, Georgia, Georgia (again!), and South Carolina, to name a few), this is more than a futile exercise in imagination or a history lesson. (Speaking of history, did you know that between 1949 and 1973, more than 1 million people (some of whom are still alive) were reportedly displaced by unfair eminent domain takings?)
Instead, it’s a nightmare that requires media attention and sustained community resistance to stop.
Can eminent domain seizure be overridden?
only. fair. just. impartial. Be nonjudgmental. Nonpartisan. Non-discrimination. objective. Neutral.
These are all synonymous with “fairness,” but in the world of housing, whether owned or rented, I’ve noticed that many people have unspoken expectations around these words.
To achieve the quintessential “unity of thought” required for a smooth transaction, there must be a shared understanding of what “fair” means, not just legalese or a rote recitation of bills, amendments and protected groups to support and enable day-to-day operations.
By the way, fairness has seven components. Three of these typically require collective action (substantive, retributive, and restorative), but four (distributive, interactive, informational, and procedural) are within the control of everyday practitioners. Within these seven issues, let’s look at the fairness of the process, which appears to be lacking for targeted homeowners facing displacement from land acquisition.
Prioritize procedural fairness
Procedural fairness, or procedural justice, refers to the fairness of the processes and methods of decision-making and dispute resolution.
Key elements of procedural fairness include:
transparency: The processes and criteria used for decision-making should be open and transparent to all parties to a real estate transaction. This includes providing information on how decisions are made and the basis for them. Simply put, homeowners should not be the last to know that their property has been seized, as is the case in New Jersey.
consistency: Procedures should be applied consistently in similar cases and circumstances. This helps ensure that decisions are not arbitrary and that similar situations are handled similarly. For our low-income seniors, consistency becomes even more important.
impartiality: Decision makers should remain neutral and impartial. They should have no personal interest in the outcome. They should not show favoritism or prejudice to any party involved. This is a difficult task for local governments.
right to be heard: Individuals affected by decisions should be able to present their views and evidence. This usually includes the right to lodge a complaint with company management. This is an internal policy improvement many people can make today!
Right to legal representation: People have the right to seek legal advice in the decision-making process (which may be free of charge through HUD or a local fair housing agency) and should not be forced to sign anything before consulting such counsel.
reasonable decision: Decisions should be based on evidence, and relevant information and supporting documentation should be shared with the injured homeowner. The reasons for the decision should be clearly stated, explaining how the conclusion was reached and why the specific action was taken. For homeowners who have been told (and believed) that homeownership is their key to achieving the American dream, the seizure of eminent domain is unsettling, like the rug you were standing on being pulled out from under you. Providing sound decisions can help homeowners through the stages of grief caused by displacement and ease the hardship required (see Pastor Michael Haynes attributes his mother’s heart attack to sudden, brutal eminent domain pressure).
Review and Appeal: Mechanisms should be established to review and appeal decisions. This will allow errors to be corrected and ensure accountability in the decision-making process.
Being forced to sell your home unplanned is unsettling, especially if you don’t receive worthy compensation. Thankfully, through legislative discussions like this one (which proposes more transparency in assessments) and this one (which would require property owners to be compensated above fair market value, again, due to the Troubles), reforms in these areas are already starting to happen .
But why wait for collective legislative reform? These proactive procedures can be developed as internal policies by every housing practitioner, especially developers. Additionally, this is a grassroots guide to advocating for our community members. You never know if the next project will put your home on the chopping block.
This column does not necessarily reflect the opinions of the HousingWire editorial staff and its owners.
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