American Dream in Flux: The Endangered Right to Lease a Home
Andrea J. Boyack
Homeownership in the US is on the decline and the percentage of the population that rents their residence is growing. Renters present a distinct demographic compared to owners, and most of the more vulnerable segments of society rent their homes. But the law prohibits renting a home in some neighborhoods. Occasionally, zoning provisions hamper the ability of would-be tenants and would-be landlords to rent. More typically, however, community restrictive covenants are what block rentals. Zoning prohibitions on rentals have been attacked as violations of property rights. But in condominiums and other privately governed neighborhoods, segregation of renters from owner occupants has been continually upheld by the courts and has been consistently promoted as policy by government and quasi government entities. These policies and legal structures harm not only the rights of would-be landlords but also would-be tenants in such communities. Community rental restrictive covenants perpetuate broader social harms as well. It is time to rethink the desirability of these restrictions, even in the “private” context of neighborhood covenants.
A Tale of Two Privities: Conflict Among the Circuits on the Role of Privity of Contract and Privity of Estate in the FDIC’s Assignment of Failed Bank Leases
Shelby D. Green
This Article explores whether privity of contract is required for a landlord to have standing to show privity of estate and hold an assignee liable for rent. Central to the discussion are two rulings by the Second Circuit and the Fifth Circuit regarding the failure of Washington Mutual Bank, and the resulting uncertainty concerning the enforceability of the terms of subsequent lease assignments. Although the facts in each case were nearly identical, the circuits’ decisions split on the issue of privity of contract. The circuits disagreed as to whether privity of contract is required for a landlord to have standing to show privity of estate and hold an assignee liable for rent. The author explores this divergence and reasons that based upon the principles of property law, it is not necessary to establish privity of contract to show privity of estate. Ultimately, the author concludes that proving privity of estate is a matter of evidence, not a matter of standing.
A Critical Research Agenda for Wills, Trusts, and Estates
Bridget J. Crawford & Anthony C. Infanti
The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgender individuals; low-income and poor individuals; the disabled; and non-traditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This Article reviews examples of what the authors call “critical trusts and estates scholarship” and identifies additional avenues of inquiry that might be fruitfully pursued by other scholars who are interested in bringing an “outsider” perspective to their work in this area.
Onus Fiduciae Est Omnis Divisa in Partes Tres: A Statutory Proposal for Partitioning Trusteeship
James P. Spica
This Article proposes an adaptation of Uniform Trust Code provisions expressly to authorize settlors to partition trusteeship into separately acceptable, unblended trust relations pertaining to investment, dispositive discretions, and the residuum of trustee functions. The resulting fiduciary regime is entirely distinct from a cotrusteeship for purposes of determining each “separate trustee’s” authority and liability, separate trustees are statutorily disabled from accepting one another’s fiduciary duties, interpretive difficulties are avoided by the requirement of an express reference to the statute, and the regime overlies whatever facility for directed trustees and excluded cotrustees may already exist under the adapting jurisdiction’s version of the Code. Thus, fiduciary responsibility for a given res may involve two or more separate trustees, viz., a separate “resultant trustee” and either a separate investment trustee or one or more separate discretionary distributions trustees, and any of those separate trusteeships may itself comprise a cotrusteeship or be subject to the direction of a trust protector.
Mandatory Arbitration Clauses in Donative Instruments: A Taxonomy of Disputes and Type Differentiated Analysis
Jessica Beess and Chrostin
Arbitration clauses have become increasingly more common in wills and trusts as a means to avoid the court system, and as a way to benefit from the alleged advantages of alternative dispute resolution. The majority of current literature on this topic focuses on whether the beneficiary has consented to arbitration. However, this article poses a different question—even if mandatory arbitration clauses in testamentary instruments are enforceable, should they be enforceable as a matter of public policy? The author asserts that analyzing testamentary disputes by type—validity disputes and administrative disputes—reveals that the benefits of arbitration do not translate to either type of dispute.