PROPERTY LAW FOR THE AGES.

• Author: Pollack, Michael C.

TABLE OF CONTENTS INTRODUCTION 564 I. TAKINGS COMPENSATION AND THE ELDERLY OWNER 578 II. WASTE, PARTITION, AND THE ELDERLY LIFE TENANT 592 III. PROTECTION FOR ELDERLY RENTERS 606 IV. NAHRSTEDT REVISITED--PETS AS MEDICAL DEVICES 618 V. AGE-RESTRICTED COMMUNITIES 631 CONCLUSION 643 INTRODUCTION

The judges who developed the common law of property had a clear vision of their customers. Anglo-American property doctrine was built by and for the benefit of young and middle-aged white men--people who the judges romantically envisioned taming the natural landscape, colonizing territory, tilling the soil, building dwellings, establishing mills, excavating mines, and seamlessly transferring land to each other. (1) Over the past century, some scholars, legislators, and judges have advanced a more inclusive conception of property that embraces the idea of Black Americans and Native Americans as owners, rather than one that subordinates them and treats them as property or mere occupants. (2) An equally important project in property law has sought to put women on equal footing with men after centuries of second-class status. (3) Contemporary Americans continue to work to build a robust property doctrine that serves the needs and respects the humanity of people, regardless of race and sex.

In this Article we ask whether there is room in property doctrine to be attuned to differences related to advanced age, as age operates alongside and intersects with these other salient distinctions. (4) In the United States, this question takes on a heightened urgency, for within the next forty years the percentage of Americans over age sixty-five is projected to reach 29 percent, growing from 19 percent today and 13 percent a decade ago. (0) Countries all over the world, both rich and poor, are coping with aging populations and declining birth rates too. (6) But, as we shall explain below, many property doctrines are built around the needs of younger people in the prime of their lives. As a result, key aspects of the law do not reflect the needs of the older people who comprise increasingly large segments of the populace in the United States and other developed countries. In this Article, we will focus on ways in which takings law, the law of waste and life tenancies, landlord-tenant law, and the law of common interest communities fail to vindicate interests that are especially important to the flourishing of older Americans. We will suggest several attractive reforms in each arena that would make the law more responsive to the interests of an aging society. (7) At the same time, we will draw attention to one area of property law--the Fair Housing Act's exemptions for age-restricted communities--that arguably goes too far in vindicating the interests of an elderly population. In the process, we point to the heretofore unrecognized role of age segregation in promoting racial segregation, and we identify the difficult tradeoffs policymakers must face.

In our analysis there are at least three basic features that, taken together, tend to differentiate older people from younger people. To the extent that property law's generally impersonal, one-size-fitsall approach systematically fails to promote human flourishing, the shortcomings typically can be tied to one or more of these core attributes. First, elderly people tend to face higher relocation costs, in large measure because of their greater reliance on community support resources. Second, older people have relatively inelastic incomes. That is, they are less able to substantially increase their earnings if their financial needs grow, thanks to retirement, disability, and pervasive age discrimination in employment markets. Third, elderly people will tend to have shorter time horizons than their younger counterparts. Or, put in economic terms, they generally have higher discount rates, focusing more on the short- and medium-term than the longer-term.

While "aging is a highly individualized process," which no doubt makes the elderly population heterogeneous, (8) and while some of the common stereotypes about elderly people turn out to be largely untrue, there is conclusive enough evidence for each of these propositions to warrant taking these features into account as we explore how well property law meets the needs of older people in general. We elaborate on the evidence for each of these characterizations below.

Before doing so, though, it is important to underscore two points. The first is that age is an imperfect proxy for these attributes. But while there are certainly some younger people who face high relocation costs and some older people who do not, or some younger people with income constraints and some older people with fairly elastic incomes, tailoring property law to each of these attributes and assessing people individually would impose extraordinary burdens on law and on actors in the legal system. (9) Moreover, one can fake short time horizons or attachment to a particular location, but falsifying one's age is a far harder task.

The second is that older people are, like all groups of people, heterogeneous. But subdividing senior citizens into several groups that have differing rights could start our politics down a slippery slope towards a presently unmanageable number of demands for further legal customization. Turning instead to a category that is easy to identify, that is already stable in American law, and that captures with reasonable reliability the attributes we think are important--a category defined generally as starting at the age of sixtyfive--is therefore likely to be the most efficient and defensible way to properly account for those attributes in law and policy. (10)

The stability of this category is worth further emphasizing. Various states already have special legal protections for senior citizens that have not been extended to other demographic groups despite the passage of considerable time. For example, Illinois lengthens the mandatory cooling off period for home repair and remodeling contracts from three days to fifteen days for senior citizens. (11) Numerous states provide property tax exemptions to senior citizens. (12) The federal Medicare program has protected the sixty-five and over group for decades without expansion to other age groups or vulnerable populations, (13) and sixty-five and over proved to be a salient and relatively uncontroversial criterion in COVID-19 vaccine allocation. (14) Treating senior citizens as a single group that receives extra protections has not sent society careening down a slippery slope towards carve-outs for everyone.

For skeptics of personalized law, this history should be comforting. This concern both explains why we think lines can be drawn between sixty-four and sixty-five-year-olds, and also explains why we do not propose treating older senior citizens differently than younger senior citizens. Tailoring is a virtue, but providing different rights to different tranches of the elderly population would entail legal and administrative complexity that does not seem costjustified. (15)

Turning now to the three core attributes we identify as distinguishing older people from younger people, the first and most important for property law is that elderly people generally face higher transaction costs with respect to relocation than younger people. In other words, while property law assumes that exit--escaping poor conditions, meeting new needs, and the like--is relatively smooth, opportunities for exit and ease of relocation are in fact substantially constrained for older people relative to younger people. This thread runs through each facet of property law we discuss in this Article, with meaningful consequences for each.

Consider at the outset that Americans over age sixty-five are simply significantly less likely to move than their younger counterparts. (16) According to census data, 12 percent of Americans age fifty-four and under moved residences between 2018 and 2019. (17) But only 4.4 percent of Americans over age fifty-five did the same. (18) The same pattern appears each year going back to at least 2015: younger Americans are about three times more likely to move in a given year than elderly Americans. (19) Moreover, while there are small fluctuations over time in the rate at which younger Americans move, the rate of mobility among older Americans tends to be fairly constant. There are, of course, numerous possible explanations for this disparity: perhaps older people want to avoid being taxed on the sale of an appreciated home, perhaps they benefit from rent control or other regimes that privilege longevity, (20) perhaps they are less likely to rent and renters are simply more mobile than owners across ages, and so on. But despite these confounding factors, there is data from Spain suggesting both that older homeowners are indeed significantly less willing to sell their homes than younger homeowners and that people under the age of seventy are two to three times more likely to be willing to sell their homes than people over the age of seventy. (21)

We make no strong causal claims based on this data alone. But whatever the mechanism, the data nonetheless suggest that (1) older people are less inclined to relocate, and (2) their level of interest in doing so is fairly stable and not especially responsive to macroeconomic or other such factors. (22) This interpretation is bolstered by survey data suggesting that when the oldest Americans--those over age seventy-five--do move, it is primarily because changing health needs compel them to do so. (23) Indeed, a noteworthy recent survey revealed that 83 percent of senior citizens wanted to stay in their current homes for as long as possible, and the vast majority strongly preferred to age in place. (24)

But it is mostly by looking beyond the broad data that we can begin to flesh out some of the reasons why mobility and exit opportunities for older people might...