New relationships with land and housing

• Author: Janelle Orsi
• Profession: Is the Director of the national nonprofit Sustainable Economies Law Center, and she is a 'sharing lawyer' in private law practice in Oakland, CA
• Pages: 463-534

463

CHAPTER NINE

NEW RELATIONSHIPS

WITH LAND AND

HOUSING

PART 1: BUILDING ECONOMICALLY SUSTAINABLE

RELATIONSHIPSWITH LAND

The practice of real property law is largely about managing the bundle

of rights and responsibilities traditionally attached to land ownership.

This chapter unpacks that bundle, exploring the possibility for agree-

ments and organizations that allow us to share and more wisely manage

those rights and responsibilities. This chapter is not specifically about

sharing housing and land; rather, it is about how shared use arrange-

ments, shared financing, shared management, and other cooperative

arrangements can help us to establish economically sustainable ways of

managing land and housing ourselves.

Each of us needs to have a secure relationship with land because we

all require a place to physically exist, to be sheltered, to make a liveli-

hood, and to be nourished by land’s resources. The goal of a sharing

economy lawyer is straightfor ward: to build legal relationships and legal

frameworks to ensure that everyone and everything alive will be nour-

ished by their relationships with land, and that future generations will

be, too. I said the goal was straightforward; I didn’t say it was modest.

Whether by necessity, by choice, or by inspiration, most of us

will soon have to make new and different choices about how we house

ourselves and how we use land. As this happens, innumerable sharing

ors85462_09_c09_463-534.indd 463ors85462_09_c09_463-534.indd 4638/1/12 9:38 AM8/1/12 9:38 AM

464 | P L    S  E

lawyers will need to develop the requisite expertise in real property law

so that we can guide citizens in creating the agreements and organiza-

tions that will govern our new relationships with land.

Unpacking the Bundle of Rights

Ownership of land is generally t hought to come with a “bundle of rights,”

such as the right to possess and occupy the land, the right to build on

it, the right to use its resources, the right to set terms for the transfer of

land, and the right to decide how it is used, by whom, and for how much

money. Those rights, however, are tempered in two primary ways:

1. Private “laws”: Private individuals and groups can make agree-

ments to set limitations and directives on how land is used,

transferred, and so on. These limitations t ypically come in the

form of covenants that run w ith the land, equitable servitudes,

lease agreements, co-ownership agreements, and other contracts

and rules that are enforced by homeowners’ associations (HOAs),

co-owners, neighbors, mortgage holders, landlords, tenants, and

easement holders.

2. Public laws: There are local, state, and federal laws that place

limits on what we do with land. These include land use laws,

environmental protection laws, inclusionary housing laws, rent

control laws, regulations on the subdivision of land, regulations

on the powers of HOAs, taxation of propert y, anti-discrimination

laws, and so on.

The role of a sharing economy lawyer, then, is twofold:

1. Creating private agreements and organizations: A sharing

economy lawyer helps clients choose from and structure the large

number of tools for the private management of land rights and

responsibilities. This work entails drafting covenants and con-

tracts, choosing entities, struct uring organizations, choosing ta x

statuses, str ucturing relationships between entities and individu-

als, and much more. The options vary f rom state to state, and the

choices must be made while weighing a wide variety of factors,

such as the goals and needs of clients, sources of financing, limi-

tations imposed by lenders, tax implications of the arrangement,

and limitations imposed by public laws.

ors85462_09_c09_463-534.indd 464ors85462_09_c09_463-534.indd 4648/1/12 9:38 AM8/1/12 9:38 AM

New Relationships with L and and Housing | 465

2. Navigating public laws: The legal relationships that clients wish

to create for the management of land are often limited by laws

that dictate how such relationships may be created and how land

can be used. These laws are particularly awkward to apply when

clients have created systems that involve shared use, shared man-

agement, and/or shared financing of land. It conjures up a theme

reiterated throughout this book: Sharing economy lawyers often

find that their clients fall squarely within legal gray areas. For

example, it is difficult to apply landlord/tenant laws to situations

where the landlord is the tenant, such as in a housing cooperative.

It is awkward to apply laws that govern transact ions between a

developer and homebuyer when the homebuyer is the developer,

such as in many cohousing commun ities. Furthermore, land use

laws that have sought to prevent the mixing of residential, com-

mercial, industrial, and agricultural uses prove awkward when cli-

ents wish to bring product ion back to their neighborhoods, such

as by forming a residential community that engages in collective

food production activities.

Because of the multitude of ways to manage private land rights and the

variety of public laws affect ing our relationships with land, being a shar-

ing economy lawyer focused on la nd and housing requires lear ning a lot

about real estate law. This chapter is not a full overview of the knowl-

edge and skills requ ired of such a lawyer, but it provides a framework for

thinking about the unique tools used and challenges faced by lawyers

working with clients in a sharing economy.

When Land Is Not Shared

Creating more economically and ecologically sustainable relationships

with land should perhaps not be a goal, but rather an imperative. It’s not

simply due to the fact that we must begin the future with a severely

degraded planetary ecosystem. We also face a crisis in housing. Land-

less people’s movements throughout the world are vocalizing the essen-

tial unfairness of the fact that so many people must struggle to simply

secure a place to physically exist, much less make a livelihood, on the

planet. The struggle is not conf ined to the poor. Middle-income people

in the United States are floundering to determine how their current

housing arrangements will be financially sustainable into the future.

ors85462_09_c09_463-534.indd 465ors85462_09_c09_463-534.indd 4658/1/12 9:38 AM8/1/12 9:38 AM