Wake Forest Law Review
8Dec

Keep “Tiny Home” Owners from Becoming Homeless: Remove Unnecessary Barriers to Nontraditional Housing

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By Caroline Willcox

The cost of housing has risen to such an extent in the past few years that, for some, it has become prohibitive to home ownership or housing generally.[1]  This problem is especially prevalent in Idaho, where houses in Boise are almost 70 percent overvalued.[2]  A woman in Idaho, Chasidy Decker, found a solution to this problem that worked for her.  She bought a “tiny home” constructed from high-quality materials and up to the safety standards of a traditional home.[3]  She wanted a tiny home because “they were attractive, affordable, reliable, mobile, and stable.  With a tiny home on wheels, I believed I would always have a roof over my head.”[4]  Chasidy found a place to park her tiny home in Meridian, Idaho, on Robert Calacal’s property.[5]  Calacal purchased his property specifically in part because of its RV hookups that he could rent to people like Chasidy, who would need a place for their tiny home or RV.[6]  The previous owners of his property and other neighbors utilize their property in this way.[7]  Chasidy and Robert signed a one year lease in which they agreed that Chasidy would pay $600 plus $100 in utilities to Robert in exchange for her to be able to live on his property.[8]

Unfortunately, the city of Meridian prevented this mutually beneficial agreement that allowed for a home for Casidy and rental income for Robert.  While the city code allows Chasidy to have her tiny home parked on the property indefinitely, the regulation prohibits living in “mobile tiny houses” or RVs “except within a recreational vehicle park.”[9]  However, there are currently extensive waitlists for the local RV parks for tiny homeowners like Chasidy, and even then, some do not allow tiny homes to use their property.[10]  The City ordered Chasidy to move from Robert’s property within ten days or face criminal prosecution and fines up to $1,000 per day.[11]  Chasidy ultimately complied with the order, leaving her homeless, despite owning a perfectly safe home.[12]

In addition to the fact that the city selectively and arbitrarily enforced the ordinance against Chasidy and Robert,[13] the ordinance violates the Idaho constitution and the parties’ property rights.  The Idaho constitution requires “laws infringing on property rights to have a direct, real, and substantial relation to legitimate government interest.”[14]  The attorneys representing her argue that this specific ordinance fails that requirement.[15]  They argue that the ordinance does not promote health or safety because the city allows people to live in the same structures but only if they are parked in specified areas.[16]  The home itself is not regulated; instead, the only issue the ordinance regulates is where homes and RVs are parked.[17]  The ordinance also does not advance any aesthetic goals for the city because owners can keep any RV or tiny home parked on private property so long as no one is using them for the purpose of providing housing.[18]  While zoning laws and land use regulations can play an important part in ensuring the safety of a town’s citizens, they must actually serve a legitimate public end.  When they do not, they violate the rights of their citizens.  Casidy has filed a complaint for declaratory and injunctive relief in an attempt to have her property rights restored and the use of her home permitted.

Unfortunately, other cities and municipalities are creating barriers to lower-cost and nontraditional housing.  A nonprofit in Calhoun, Georgia, sought to build small, environmentally friendly cottage-style homes between 450 and 600 square feet for people who wanted to be homeowners but were unable because of the cost of traditionally sized homes.[19]  Though the plans for the cottages were in accordance with all zoning and safety codes, the city bans any homes that are smaller than 1,150 square feet.[20]  This ban does not have any rational relationship to a legitimate government interest but, as the nonprofit’s attorneys, argue only serves to artificially inflate already-high housing costs.[21]  Similarly, in Big Water, Utah’s zoning ordinance prohibits homes smaller than 2,000 square feet in a particular residential zone.[22]  The city even admitted in a letter that the purpose of the ordinance was to “keep the property value up.”[23]  Like the situation that Casidy faces, residents in Sierra Vista, Arizona, were forced to move their RVs because the city code deemed it illegal for them to live in them in one lot, though they were allowed to park there.[24]  These ordinances and statutes, like Meridian’s, do not have a rational relation to a legitimate public end like public welfare or safety.  Because of this, the regulations likely violate their state constitutions and the United States Constitution.

The size of someone’s home or its ability to transport its inhabitants should not hinder people from living as they choose or as their budget allows.  This is especially true as remote work becomes more popular and people use their flexible work schedules to fit a more adventurous lifestyle.  And as a matter of public policy, the government should not interfere with efforts to reduce homelessness through regulations that do not promote public health or improve safety.  Rather, as housing prices continue to rise, states and municipalities should allow people to utilize any form of housing they desire or can afford instead of creating unnecessary barriers to housing.

[1] Zachary B. Wolf & Anna Bahney, The Housing Mess, Explained, CNN Politics (Sept. 17, 2022, 8:08 AM), https://www.cnn.com/2022/09/17/politics/housing-market-questions-what-matters/index.html.

[2] Complaint for Declaratory and Injunctive Relief and for Nominal Damages at 7, Decker v. City of Meridian, Idaho et. al., No. CV01-22-11962 (4th Dist. of Idaho 2022).

[3] Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction at 11, Decker v. City of Meridian, Idaho et. al., No. CV01-22-11962 (4th Dist. Idaho 2022).

[4] Declaration of Chasidy Decker in Support of Motion for Preliminary Injunction at 2, Decker v. City of Meridian, Idaho et. al., No. CV01-22-11962 (4th Dist. Idaho 2022).

[5] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 2.

[6] Id.

[7] Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction, supra note 3, at 2.

[8] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 9.

[9] Meridian City Code § 11-3A-20.

[10] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 3.

[11] Id. at 2.

[12] Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction, supra note 3, at 4.

[13] Complaint for Declaratory and Injunctive Relief and for Nominal Damages, supra note 2, at 4.

[14] Id. at 19.

[15] Id. at 20.

[16] Id.

[17] Id.

[18] Id.

[19] Complaint for Declaratory Judgment, Injunctive Relief, and Attorney’s Fees and Petition for Writ of Certiorari at 2, Tiny House Hands Up, Inc. v. City of Calhoun, Georgia et al. (Super. Ct. Gordon Cnty., Ga. 2021).

[20] Id.

[21] Id. at 3.

[22] Letter via email from Joseph Gay and Bob Belden, Attorneys, Institute for Justice, to David Schmuker, Mayor, Big Water, Utah, Members of the Town Council, and Members of the Planning and Zoning Board at 1 (May 13, 2022) (on file with author).

[23] Id.

[24] Complaint at 17, Root v. City of Sierra Vista, Ariz., No. __ (Super. Ct. Ariz., Chochise Cnty. 2021).

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11Nov

Keep it in the family: the problems facing small family farms and how the Uniform Partition of Heirs Property Act can help owners hold on to generational homesteads

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By: Mathias A. Young

Small family farms are in dire straits. The U.S. Department of Agriculture’s Economic Research Service found that in 2019, between sixty-two and eighty-one percent of small family farms were operating at a “high risk level.”[1] This problem is worse for farmers of color, who for decades have faced discrimination in applying for and receiving grants and loans from the U.S. Department of Agriculture.[2] As a result, the number of Black farmers in the United States declined by ninety-seven percent in the twentieth century.[3] Not only do small farmers, particularly those of color, face threats from insolvency and potential discrimination, these farmers also face threats that their farms could be sold out from under them without their permission. This mechanism is known as partition.[4]

Partition by sale is the common law process by which a tenant-in-common can force the sale of land without the consent of the other owners.[5] Partitions by sale are meant to be an option of last resort.[6] In practice, however, judges often prefer issuing partitions by sale and they are the most common result of a petition for partition.[7] An action for partition is usually available to owners of property as tenants in common. Black farmers are more likely to own their land as tenants-in-common for a number of reasons,[8] which puts them at a higher risk for being dispossessed of their property.[9] For example, a real estate developer who does not want to pay market value for a piece of property owned by tenants-in-common could buy one of the part owner’s share in the property. The developer then needs only to make a claim for partition and the property can be sold on the steps of the courthouse.[10] If the family cannot afford to outbid the developer, then they can be dispossessed of the property for less than its market value.[11] Aside from the financial loss of being unable to sell the property on the open market, the family also loses the sentimental ties they had to the property, which may span generations.

To help combat these losses, the Uniform Law Commission has created the Uniform Partition of Heirs Property Act (“Heirs Property Act”).[12] Enacted in nineteen states and territories and introduced in a further seven—including North Carolina—the Heirs Property Act makes changes to the statutory rules regarding partition by sale.[13] The Heirs Property Act is not a comprehensive overhaul of the rules regarding when a tenant-in-common can petition a court for partition. Instead, it makes targeted changes to help owners of heirs property avoid receiving far below market value for their property due to a forced auction.[14]

The ability to secure property at a price below market value is one of the driving characteristics that results in forcing landowners off of their land.[15] Traditionally, a partition by sale is conducted in the same manner as other judicially ordered sales of real property, with a commissioner appointed to conduct the sale and the property sold at public auction.[16] This procedure brings far less money than property sold on the open market by a broker.[17] The Heirs Property Act changes this procedure in several ways, beginning with the requirement that the court first determine the fair market value of any heirs property.[18] Next, the Heirs Property Act provides for a mandatory buyout option by the other co-tenants.[19] This provision is perhaps the most important when it comes to protecting the livelihoods of small family farmers.

The buyout provision allows other co-tenants of the property to purchase the interests of a co-tenant who requested partition by sale to prevent the sale on the open market of the property.[20] This option gives families a far greater chance of retaining ownership of land than trying to outbid a developer or other interested buyer in a public auction, which often requires buyers to pay in cash.[21] For example, assume that the enterprising real estate developer from the preceding example instead buys a ten percent stake in a farm that meets the definition of heirs property. Instead of proceeding to a courthouse sale where the family must outbid the developer for the entire price of the property, the family can instead opt to purchase the developer’s shares beforehand. This is an especially helpful tool when an outside buyer or estranged family member begins a partition action with an extremely small fractional share of ownership, which is common when land has passed through intestacy for generations.[22] While families still face the prospect of coming up with enough money to buy out a co-tenant’s shares—which can be challenging in its own right due to a number of factors[23]—it is less insurmountable than attempting to outbid a well-equipped cash buyer at public auction.

Small family farms, particularly those owned by people of color, have been decimated in recent years due to a variety of factors. While it cannot address the underlying causes of the decline in small family farms or the astounding amount of Black land loss that has occurred in the South, the Heirs Property Act can at least help families maintain possession of their property.

[1] Christin E. Whitt et al, U.S. Dep’t of Agric., America’s Diverse Family Farms 8 (2020).

[2] See generally Tadlock Cowan & Jody Feder, Cong. Rsch. Serv., RS20430, The Pigford Cases: USDA Settlement of Discrimination Suits by Black Farmers (2012) (noting that the USDA settled suits alleging discriminatory lending and technical assistance practices, primarily at the extension office level); Ximena Bustillo, ‘Rampant Issues’: Black Farmers are Still Left Out at USDA, Politico (July 5, 2021, 7:00 AM), https://www.politico.com/news/2021/07/05/black-farmers-left-out-usda-497876.

[3] Black Land Loss, Duke Sanford World Food Pol’y Ctr., https://wfpc.sanford.duke.edu/media/black-land-loss (last visited Nov. 7, 2021).

[4] Will Breland, Acres of Distrust: Heirs Property, the Law’s Role in Sowing Suspicion Among Americans and How Lawyers Can Help Curb Black Land Loss, 28 Geo. J. Poverty L. & Pol’y 377, 380 (2021).

[5] See N.C. Gen. Stat. § 46A-21(a) (2020) (“Any person claiming real property as a tenant in common . . . may petition to partition the property in superior court.”).

[6] See, e.g., N.C. Gen Stat. § 46A-75(a) (2020) (“[T]he court shall order a sale of the real property . . . only if it finds . . . that an actual partition of the property . . . cannot be made without substantial injury to any of the parties . . . .”).

[7] See, e.g., John G. Casagrande, Note, Acquiring Property Through Forced Partitioning Sales: Abuses and Remedies, 27 B.C. L. Rev. 755, 771 (1986) (describing the Alabama Supreme Court’s acknowledgement that the usual end result of a partition action is the sale of the property).

[8] See Roy W. Copeland, Heir Property the African American Community: From Promised Lands to Problem Lands, 2 Pro. Agric. Workers J. no. 2, 2015, at 1, 2 (noting that between one third and one half of Black farmers in the South own their land as heirs property).

[9] Id. at 6 (“Partition actions are one of the most notable legal procedures leading to the loss of heir property.”).

[10] See Thomas W. Mitchell et al., Forced Sale Risk: Class, Race, and the “Double Discount”, 37 Fla. St. L. Rev. 589, 611–12 (2010).

[11] Id.

[12] Unif. Partition of Heirs Prop. Act prefatory note (Unif. L. Comm’n 2010).

[13] Id.

[14] See id. The Heirs Property Act defines “heirs property” as property held in a tenancy-in-common where there is no ownership agreement and twenty percent or more of the interests are held by a family. See Unif. Partition of Heirs Prop. Act § 2(5) (Unif. L. Comm’n 2010).

[15] See Thomas W. Mitchell, From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community Through Partition Sales of Tenancies in Common, 95 Nw. U. L. Rev. 505, 579 (2001).

[16] See, e.g., N.C. Gen. Stat. § 1-339.13 (1997).

[17] See Mitchell et al., supra note 10, at 608 (noting that “vulture buyers” target forced sales because they often result in fire-sale prices).

[18] Unif. Partition of Heirs Prop. Act § 6

[19] Unif. Partition of Heirs Prop. Act § 7

[20] Id.

[21] Mitchell et al., supra note 10, at 605.

[22] See Leah Douglas, African Americans Have Lost Untold Acres of Land Over the Last Century, The Nation (June 26, 2017), https://www.thenation.com/article/archive/African-americans-have-lost-acres/.

[23] This challenge is exacerbated by the Heirs Property Act’s requirement that the price of shares be calculated by the fair market value of the property. Unif. Partition of Heirs Prop. Act § 6. For a more thorough discussion of the challenges this provision creates for owners of heirs property, see Avanthi Cole, Note, For the “Wealthy and Legally Savvy”: The Weaknesses of the Uniform Partition of Heirs Property Act as Applied to Low-income Black Heirs Property Owners, 11 Colum. J. Race & L. 343, 360–63 (2021).

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