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Notes -
Court opinion somewhat relevant to the culture war:
According to lawmakers: "New Jersey is consistently in the top three in the nation with the highest foreclosures. Our state also has the widest racial wealth gap in the country. Black and brown wealth is hemorrhaging through the loss of foreclosed property, and the people who live in the community often do not have deep enough pockets to even participate in the foreclosure process." "The current process favors companies that have the money to purchase property at sheriff sales and resell it for a profit." In response to these concerns, the state govt. enacts a law ensuring that, whenever a residential property is foreclosed on, a right of first refusal is granted to the owner, his next of kin, and his tenants (if the owner is an individual rather than a company), and a right of second refusal is granted to certain redevelopment-oriented nonprofits (regardless of the owner's identity). Normally, foreclosure results in an auction starting at an "upset price" (minimum/reserve price) set by the foreclosing lienholder (presumably the lender of the property's first mortgage). However, these two new rights of refusal allow the property to be purchased for the upset price without an auction. The lawmakers say: "This legislation will help to keep property ownership within the community." "This is what equity in systems looks like."
However, the new law causes problems because it often results in undervaluation of the property, so that junior lienholders don't get paid back. For example, in one of the cases consolidated here: A residential property with estimated fair market value of at least 680 k$ was foreclosed on. US Bank held a first mortgage for 281 k$, and PNC Bank held a second mortgage for an amount that I can't find in the court documents. US Bank set the upset price at 309 k$. PNC was prepared to bid the auction up to 401 k$, which presumably would suffice to pay off both mortgages. However, instead a nonprofit exercised its right of second refusal and bought the property at the upset price of 309 k$, paying off US Bank's mortgage but leaving PNC with substantially less than what it would have gotten at auction. In PNC's words: "The refusal to recognize other bids results in illegal lien-stripping and the illegal taking of substantial surplus that would have been realized, and the deprivation of PNC's property interest that would have attached to that surplus." (PNC also alleges that the nonprofit is a sham. It was created just a few days before the auction would have taken place, and is not registered as a nonprofit with the state govt. or with the federal IRS.)
The trial judge rules that the nonprofits' right of second refusal is an unconstitutional taking without just compensation, and the appeals panel affirms. The federal Supreme Court recently found that it is unconstitutional for the govt. to foreclose on a property for a 200-k$ tax delinquency, sell it at auction for 300 k$, and pocket the extra 100 k$. Likewise, if a property is encumbered with a 300-k$ mortgage, it is unconstitutional for the govt. to let a nonprofit buy it for 200 k$ and magically extinguish the extra 100 k$ of debt owed to a lender. (Nobody has invoked the owner's, next of kin's, and tenants' right of first refusal, so it technically is not at issue in this case. But if the right of first refusal is challenged in the future it presumably will be held unconstitutional under the same rationale.)
On the topic of 5th amendment violations
If this right of second refusal is an unconstitutional taking of the financial interests of the mortgage-holders, it seems pretty straightforward to me that rent control is an unconstitutional taking of the financial interests of property owners, and I have no idea how we've managed to get this far without a court ruling to that effect.
It seems to me that rent control is not as extreme because the landlord still gets to collect rent on his property and can apply to some pink board somewhere for rent increases. Of course I agree that rent control (and other price controls) are, generally speaking, bad public policy, but it's debatable whether they rise to the level of being a taking.
I think that the government is constantly interfering with property rights and that interference runs the spectrum from what is generally thought to be reasonable (e.g. you aren't allowed to build a factory in a residential neighborhood) all the way up to something that's clearly a taking (e.g. the government simply seizes your land). It's very difficult to draw the line, and that's what judges do -- exercise judgment.
Depends on what you mean by property rights. You bring up nuisance but that really involves a situation of conflicting property rights. A wants to use its property for X which conflicts with how B wants to use its property. How do you solve that? Well the law of nuisance. Or if you like law and Econ read The Problem of Social Costs by Coase.
That is fundamentally a different kind of regulation compared to rent control. In the first, there is a conflict in property rights. In the second, there is no conflict.
I'm not sure I understand your point here. If you tried to build a factory in a residential neighborhood, what would stop you is zoning laws. Are you saying that society could or should get rid of zoning laws and just stick to the concept of common law nuisance? (I agree that would let you stop a cement factory, but I'm not sure it would help if someone built a two-family house in an area which was zoned for single family houses.) Not trying to trap you, I genuinely don't understand your point.
Zoning law is kind of a shitty version of common law nuisance. You won’t find defending zoning qua zoning. But it is an out growth of common law nuisance and is getting at something inherently different than rent control (ie what do you when rights are incompatible). Thus comparing the two is a category error.
FWIW, I would get rid of zoning and permit restrictive deeds including racial.
Thank you for clarifying that. I think the line is blurrier than you are making it out to be.
For example, it's very common for zoning laws to mandate minimum lot sizes and maximum numbers of units per lot.. Even though the developer (and eventual landlord) would prefer to have a larger number of units so as to maximize revenue, the municipality limits what he can charge, albeit in a roundabout way. The unstated purpose of these types of requirements is to keep out the riff raff, so to speak.
To be sure, you could argue that the neighbors of this developer have a property interest in limiting the intensity of use of neighboring lots, you could just as easily say that rent-control tenants have a property interest in being able to stay in their apartments while paying a reasonable rent.
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