Introduction
The Reverend Dr. Martin Luther King, Jr. was concerned about both poverty and race, inextricably linked because of the long and brutal history of racial injustice in housing, employment, and education. Yet he sought to improve the social and economic conditions for all poor people. He offered a critique of the excesses of capitalism and believed fervently that poverty could be eliminated, both domestically and globally, with a commitment of political will and the redirection of resources. What King called the “beloved community” reflected a vision of a world built on peace, human dignity, and shared material abundance, where power is exercised in service of love.Footnote 1
This linkage of poverty and race in the United States can be understood through two related Christian theological concepts—the universal destiny of the goods of the earth and the social mortgage that encumbers all private property to ensure the equitable provision of those goods. These concepts, rooted in concerns of distributive and contributive justice, are often applied to topics like taxation and spending, a living wage and workers’ rights, and the global distribution of life-saving medications. I add U.S. property law to that list of topics because of its capacity to mediate the universal destiny of goods through the social mortgage whenever it structures the ownership and use of land and buildings under norms of social obligation.Footnote 2
Clearly expressed in the Hebrew and Christian scriptures and articulated throughout the patristic and medieval periods (with Aquinas as a prominent voice), the universal destiny of goods refers to the sharing of resources that God gifted to all people and all generations to promote the common good and its corollary, the flourishing of the human person.Footnote 3 Those resources include land, water, air, and natural resources, and the fruits of human skill, knowledge, technology, and culture. In Catholic social thought, where there has been sustained reflection on the topic for over a century, this sharing is “the first principle of the whole ethical and social order.”Footnote 4 Following from the universal destiny of goods is the social mortgage, a term coined by Pope John Paul II and so called because it refers to society’s claim on all property owners to steward their property by way of a “mortgage payment” to ensure the material welfare of all, especially the poor.Footnote 5 It is not surprising that Dr. King affirms these insights, even if not the same terminology, as he drew deeply from both the Bible and Thomistic natural law.Footnote 6 For him, those with power, authority, and means are under a moral imperative to establish the material conditions necessary for human flourishing.
In my review of U.S. property law as it affects land ownership and use, I find deeply embedded social norms that aspire and press legal doctrine toward material generosity and inclusion of all members of society.Footnote 7 Property and land use laws are capable of promoting the government’s stewardship of its own property on behalf of the public and, in connection with private property, generating widespread ownership, equitable land uses, and a panoply of duties to restrict, sacrifice, and share property for the benefit of others. This normative legal framework reflects the social mortgage and is thus critical to advancing a more economically and racially just society.
At every turn, however, I find progress toward paying the social mortgage debt thwarted not only by contempt for poor people but quite specifically by racial injustice, historic and ongoing: housing segregation, predatory lending, noxious facilities in minority neighborhoods, exclusionary zoning, disinvestment in infrastructure, and severe burdens resulting from nearly every land use innovation—including, ironically, those purportedly crafted to provide relief for poor, minority communities, like urban renewal, public housing, and housing vouchers.Footnote 8 These result from “the drive toward private opulence and public squalor,” as sociologist Matthew Desmond put it, with the resource-rich increasingly turning toward private solutions and public spaces left to rot.Footnote 9 The peculiar U.S. history of race-based property and zoning laws that have supported this privatization has created complexities that exacerbate, and indeed exceed, class disparities. The resulting burdens have been felt most persistently and acutely by African Americans.Footnote 10 Thus, while a commitment and capacity to encumber real property with the social mortgage might pervade U.S. property law, avarice and discrimination often derail the payments.
Yet there is hope. While the norms of social obligation within property law are, in property scholar Greg Alexander’s words, “under-theorized,”Footnote 11 they are now being articulated in the context of class and race by countless engaged legal scholars and committed practitioners. I offer the concepts of the universal destiny of goods and the social mortgage as the Christian language (in the Catholic tradition) for radical inclusion and as a bridge for dialogue with law professors and lawyers doing this normative work.Footnote 12 Indeed, I look to law because both Pope Francis and Dr. King note its centrality in achieving economic justice.Footnote 13 For Francis, law is the primary tool to address issues of both environmental degradation and material poverty, perhaps “the only force strong enough and comprehensive enough to serve as a bulwark against an economic system that he believes has been destructive of human and natural ecology.”Footnote 14 For Dr. King, unjust laws had to be dismantled and just laws put in their place.
Catholic Thought and the Social Mortgage Encumbering Real Property
Catholic social thought begins with the person at the center of concern. It asks: What does the person need for full flourishing? And it answers: She needs access to the goods of creation, that is, her share of the resources of the world that God gifted to all people and all generations. This flourishing is not individualistic as Americans might understand it but is closely tied to the common good. In Catholic thought, the common good is “the totality of goods that create the conditions in which persons flourish,” conditions that include housing, health care, education, employment, robust economic opportunity, and a legal system that protects rights, duties, and civic order.Footnote 15 The common good thus incorporates the moral imperative to share resources—to ensure this universal destination of earthly goods. Aquinas put it succinctly: “Man ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to [that is, share them with] others in their need.”Footnote 16
These goods of creation are rooted in notions of biblical abundance, not Locke’s or Hobbes’s notions of scarcity. And because their universal destiny is “the first principle of the whole ethical and social order,” property is considered to have an intrinsically social function: property rights are inherently indeterminate, dynamic, regenerative, and redistributive—both protected and limited—in order to meet the material needs of all. Indeed, as recent popes have emphasized, those limits are “inscribed in [the] very nature” of the right to private property.Footnote 17 Thus, a private property system is legitimate only as a means to this ultimate moral end of the universal destiny of goods. In my experience with the body of U.S. property and land use law, these protections and limits are continually being calibrated and recalibrated. Law is not simply understood as rights and the restriction of rights, but rather as mechanisms with the capacity to structure, incentivize, harness, direct, relax, subsidize, elevate, or subordinate the ownership and use of property in a variety of ways to advance the continual distribution and redistribution of the goods of creation so that they reach all income classes.
To describe this social function, Catholic social thought offers an apt metaphor: all property is encumbered by a social mortgage. This mortgage refers to the obligation “to pay off the senior claim that society legitimately places on … wealth.”Footnote 18 In the context of real property, this calls people to identify the duties that owners owe to their neighbors and beyond to orient their property toward the common good. Those duties involve sharing “surplus” property with others, especially the poor,Footnote 19 and making property available in situations of urgent need.Footnote 20 Because property owners might hoard resources far beyond their legitimate needs, Christianity teaches that surplus resources must be held in a kind of stewardship for the poor so that the needs of all are met. At bottom, then, owners become stewards who share their property and its fruits not simply as a matter of charity, but as an exigence of justice that requires immediate attention and action. Pope Francis has put the universal destiny of goods and the social mortgage at the center of the social teachings, measuring society’s political, economic, social, and legal systems by how well they ensure the material welfare and opportunity of the impoverished, the vulnerable, and the marginalized, especially now that climate change batters “our common home” and, most severely, its poorest residents.Footnote 21
Dr. King’s idea of the beloved community coincides closely with these Catholic social teachings. Noting the moral significance of material welfare, he says that “[t]he words of the Psalmist—‘the earth is the Lord’s and the fullness thereof’—are still a judgment upon our use and abuse of the wealth and resources with which we have been endowed.”Footnote 22 He was committed to helping all people out of poverty, regardless of race, stating emphatically that everyone should have “a good job, a good education, a decent house, and a share of power,” as well as social and cultural opportunities.Footnote 23 The King Center summarizes his profound vision of peace and prosperity in this way:
The Beloved Community was for him a realistic, achievable goal that could be attained by a critical mass of people committed to and trained in the philosophy and methods of nonviolence. …. Dr. King’s Beloved Community is a global vision, in which all people can share in the wealth of the earth. In the Beloved Community, poverty, hunger and homelessness will not be tolerated because international standards of human decency will not allow it. Racism and all forms of discrimination, bigotry and prejudice will be replaced by an all-inclusive spirit of sisterhood and brotherhood. In the Beloved Community, international disputes will be resolved by peaceful conflict-resolution and reconciliation of adversaries, instead of military power. Love and trust will triumph over fear and hatred. Peace and justice will prevail over war and military conflict.Footnote 24
Both Dr. King and Pope Francis would agree on the urgent need for efforts to achieve property stewardship and economic justice in the United States. In fifty years, the nation has seen an intense concentration of wealth, power, and influence among those at the top. The highest 1 percent of earners in the United States now possess more wealth than the entire middle class, and the numbers of billionaires continue to increase rapidly.Footnote 25
The Social Mortgage Embedded in American Property Law
Because human nature is both fallen and redeemed, Christians understand the human propensity for avarice, violence, and cruelty. Laws protecting and preserving a private property system are capable of—and often do—countenance unfettered acquisition, domination, exploitation, and degradation of people, nature, and resources.Footnote 26 The African American story is one of uniquely brutal and violent treatment, with its origins in the ownership of a human person. The list of injustices is long: the broken promises of land ownership post-Reconstruction; Jim Crow segregation and restrictive covenant segregation; redlining and inaccessible suburbs; urban renewal; predatory lending; deliberate denials of credit; disinvestment and noxious facilities in minority neighborhoods; racial income and wealth disparities; and dangerous and decayed living conditions in rentals.Footnote 27 Indeed, law has created or compounded every one of these, with attention paid to repair and restoration only in the last few decades.
In light of the human capacity for such abuses of a private property system, it may be surprising to learn that for both Catholic social thought and U.S. property law, private property is considered the gold standard for human flourishing.Footnote 28 For Aquinas, private property (and the positive laws that govern it) provide an effective mechanism for protecting each person’s natural right to access the goods of creation. Along with Aquinas, the secular law supports and justifies private ownership for its role in meeting basic needs, for providing autonomy, security, rational ordering, and civic peace, and for incentivizing entrepreneurial uses, innovation, and productive investments. Beyond material abundance and social stability, property rights are connected to self-governance. Indeed, in its decision striking down racially restrictive covenants, the U.S. Supreme Court announced that “equality in the enjoyment of property rights” is “an essential pre-condition to the realization of other basic civil rights and liberties.”Footnote 29 Thus, in both theological and legal understandings, the positive laws of society are tasked with protecting property rights to achieve multiple moral ends. There exist a commitment and capacity within property law to ensure access to material goods, especially for the most marginalized, and in so doing to build the foundation for democracy.
While the redistributive obligations of the social mortgage align neatly with taxation of income and of property,Footnote 30 here my focus is on the norms of social obligation found within the laws that govern the ownership and use of real property: land and buildings. Redistribution of money is critical, of course, but it is not sufficient for achieving a just economy. Given the moral significance of individuals, families, and communities and of specific natural and built environments, property scholar Eduardo Peñalver argues that people need meaningful and secure access to unique physical spaces and places in which to live and work and thrive.Footnote 31 And so the recalibration of property rights and obligations will often be the only way to advance the universal destiny of goods and create the conditions for human flourishing, giving the notion of surplus property particular salience in the land context. Nonmonetary transfers—to enable excluded groups to achieve ownership, occupancy, and use of real property—thus become necessary avenues for repaying the social mortgage.
Building on the work of contemporary property theorists noted throughout this article, I identify three categories in which the social mortgage is expressed in U.S. property law—or perhaps more accurately stated, in which the commitment and capacity for the social mortgage payments dwell and for which the social mortgage offers a principled basis of explanation:Footnote 32 first, in laws that generate widespread, decentralized, and secure ownership; second, in laws that provide pathways to ownership, including land use laws that create the proper preconditions of availability and affordability; and finally, in laws that require private owners to sacrifice, restrict, or share property for the benefit of others. There are the numerous ways in which law has the capacity to both protect and limit the use and ownership of property to advance the universal destiny of goods. While each has its shortcomings, they serve as a basis for developing a larger normative picture.
Pushing Power and Material Welfare Downward: Growth and Redistribution through Dispersed and Secure Ownership
The estate system—the rules of land ownership and transfer—might sound like an antiquated and esoteric topic of interest to law students only, but it is critical to the economic and political health of the nation. Real property ownership is well known to be central to building intergenerational wealth. It is also inextricably connected to the underlying structures supporting democracy. In the founding period, the land ownership and use patterns—from the earliest colonial white settlements and developed thereafter—reflected and supported the nation’s political identity as, in the words of property scholar Joseph Singer, an “egalitarian democracy.”Footnote 33 As he posits, the history of the British estate system, and the American appropriation of it, have revealed a continuous move to “push power downwards”—in other words, to decentralize and democratize land ownership and governance.Footnote 34
From the time of the Revolution and since, the Americanized estate system encouraged widely dispersed ownership and easily transferable properties.Footnote 35 The founders rejected the British practice of primogeniture, the fee tail estate, restraints on alienation, and burdensome feudal incidents, and preserved the rule against perpetuities—all to prevent the creation of family dynasties and ancestor-controlled land use decisions. At least among whites, the estate system dispersed political and economic power and rejected a system built on privileged inheritance and land wealth. The homestead movements westward during the nineteenth century were built on these notions of dispersal and decentralization, settling vast areas of the country.Footnote 36 Federal efforts in the New Deal and post-World War II eras continued to disperse ownership, as white suburbs were built and populated. Today, almost 79 million households, nearly two-thirds of all households, own their home; renters, with important exceptions, tend to rent from landlords who also have small holdings.Footnote 37
Pathways to Ownership, the Creation of Surplus Spaces, and the Moral Allocation of Land Uses to Ensure Affordability
In addition to the moral worth of widespread ownership and secure possession, the universal destiny of goods and the social mortgage mean that everyone is entitled to enjoy the benefits of real property. And so, law is capable of creating pathways for a variety of income classes to own their homes (or possess better quality rentals) and facilitating social mobility, as when government creates incentives to build affordable housing; presses lenders to invest in struggling communities; and aggressively enforces fair housing and antidiscrimination laws and fair lending laws, especially to combat modern-day redlining.Footnote 38
Mechanisms to facilitate ownership and to secure rentals for a variety of income levels can be effective only if there is ready access to actual, physical spaces for housing and employment. The availability of these physical options in the built environment is largely controlled by zoning and planning officials and professionals. Their decisions regarding land use allocation are among the most profound moral choices governments make to advance the common good. That is because human flourishing requires space enough to live, work, recreate, and worship; areas for education and health care, governance and social life, agriculture and manufacture; and preserved land and natural resources. If town after town is zoned primarily for half-acre single-family lots, those properties will likely be unaffordable for most income classes. If, instead, towns support a variety of uses, lot sizes, and building dimensions and allow denser, mixed development, they create surplus space for housing and other necessary uses. Moreover, such innovative approaches can be tailored to meet real needs. At bottom, the social mortgage encumbers the entire regulatory framework for zoning and land-use planning.
Sacrificing, Restricting, and Sharing Property for Human Flourishing and Dignity
The social mortgage is paid when government (through law or policy) ensures the creation and maintenance of three interrelated types of infrastructure: physical,Footnote 39 environmental,Footnote 40 and cultural.Footnote 41 In order to flourish, people need bridges and roads, clean air and water, wetlands and beaches, architecture and history. This infrastructure makes human settlement and social interaction possible, facilitating creation of neighborhoods, protecting human health, transmitting culture, and casting its benefits widely to people of all income levels.Footnote 42 To create and manage this infrastructure, some privately held property must be sacrificed, restricted, or shared.
Under federal and state powers of eminent domain, government or its delegee pays for and takes private property to create physical infrastructure: roads, bridges, rail lines, airports, canals, seaports, utility lines, pipelines, communications systems, military bases, parks and preserves, prisons, schools, and post offices, courthouses, and other government buildings. Without transportation, energy, and the like, society could not function.Footnote 43
In addition to these explicit takings, other property laws serve to restrict or condition an owner’s use of their property for good cause.Footnote 44 The U.S. Supreme Court long ago announced the golden rule: “All property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.”Footnote 45 And so, the common law prohibits public and private nuisances, which embodies the obligations owed to neighbors not to create a health hazard and not to interfere unreasonably with use and enjoyment of nearby properties.Footnote 46
Building upon the nuisance prevention rationale, federal and state environmental laws restrict or otherwise impact private rights in order to create needed infrastructure for individual and community safety, health, and well-being—that is, for the common good. Ensuring clean air, water, and land, and the protections for all life forms—by legal restrictions and obligations, and by market-based incentives—undoubtedly limits many uses of privately owned real property.
Further, many other laws support the creation of civic and cultural infrastructure as defined in large part by local civic and charitable organizations; cultural, artistic, educational, and religious institutions; and other entities of memory and meaning. This infrastructure is heavily dependent upon real property and could not flourish without the legal framework that designates historic landmarks and districts; facilitates the creation and care of public art, artifacts, museums, parks, and monuments; protects the siting of houses of worship; and preserves spaces for civic, cultural, and patriotic remembrance.
In addition to the property restrictions necessary for infrastructure creation, the right to exclude, which is often portrayed as the most significant property right, must at times yield to the common good.Footnote 47 Often this means that an owner must allow others to access property for some significant necessity, like ensuring access to the benefits or services to which all persons are entitled, for their basic dignity.Footnote 48 Examples of the most fundamental rights include Title II of the 1964 Civil Rights Act,Footnote 49 which prohibits racial, ethnic, sex-based, and other forms of discrimination by owners of “public accommodations,” like hotels, restaurants, theaters, and retailers, and the 1968 Fair Housing Act,Footnote 50 which likewise limits the right to exclude. The Fair Housing Act prohibits a wide array of discrimination in private sales and rentals, and it applies not only to private owners but to the entire real estate industry: banks, title companies, property insurers, appraisers, advertisers, and brokers.Footnote 51 The public trust doctrine plays a similar civil rights role in opening public (and some private) beaches to all and to giving public access to private waterfront spaces in many urban areas.Footnote 52
Echoes of necessity are also embedded in other restrictions on the rights to exclude, especially when the landowner is using monopoly power over real property to assert harmful dominion over other people’s lives. When a farm owner sought to prohibit medical and legal personnel from visiting migrant farmworkers who lived on his property, the New Jersey Supreme Court rejected the claim that their entrance was in any way a trespass and announced: “Property rights serve human values. They are recognized to that end and are limited by it.”Footnote 53 In an analysis that hews closely to social mortgage obligations, the court found that this most vulnerable social group, the seasonal farmworkers, were entitled to these visitors and the services they offered.
How Contempt for the Poor and Racial Injustice Obstruct the Social Mortgage
The very legitimacy of a private property system depends on its generating benefits for all—safe, secure, and affordable housing and physical, environmental, and cultural infrastructure that serves people well. But we know that in reality, the benefits inure primarily and often exclusively to those who already enjoy financial resources, in stark opposition to the common good. Thus, despite the capacity of the private property system to disperse ownership, guide orderly development, and build necessary infrastructure, the payment of the social mortgage to ensure the universal destiny of these goods is repeatedly thwarted by greed and by racism, past and present.
Widespread, Dispersed Ownership? Segregation and Housing Insecurity Instead
To this day, despite the progress of U.S. property law to push land ownership to broad swaths of the population—with accompanying political power and wealth creation—egregious failures exist in connection with minority and lower-income communities. Note the contrast: in the nineteenth century, the federal government gave 160-acre land grants to 1.5 million whites, incentivizing a massive population movement westward; after the Civil War, formerly enslaved persons were promised 40-acre parcels, but with Lincoln’s assassination, “the land given to Black families would be rescinded and returned to White Confederate landowners.”Footnote 54 An estimated 45 million white Americans continue to benefit from those historic homestead laws; no comparable source of land ownership came to Blacks.Footnote 55 Instead, millions of Blacks left Jim Crow states for northern cities during the Great Migration of the early twentieth century, only to discover continued housing segregation and exclusion from homeownership.Footnote 56 And those who did own property in the South lost much of it to white investors and speculators over the last century.Footnote 57
Discriminatory denial of financing for most of the twentieth century has created a major obstacle to homeownership.Footnote 58 Governmental redlining of the 1920s and 1930s ensured that government-guaranteed loans would not be available to purchasers in any area with Black residents—even a solidly middle-class, single-family residential zone—or even near an area where Blacks lived. This continued into the post-WWII era, when government-guaranteed construction financing for massive postwar suburban developments was limited to whites-only housing.Footnote 59 Indeed, between 1940 and 1965, the growth in the nation’s homeownership rate from 45 percent to over 65 percent was almost entirely limited to whites.Footnote 60 The story of increasing segregation in urban areas is connected to this profligate financing of white real estate development in the suburbs and attendant neglect and disinvestment in Black areas.Footnote 61 Indeed, the legacy of redlining can be seen in the nationwide evidence of persistent segregated land use patterns—so much so that urban Black neighborhoods in cities, which have more pavement and few trees, are demonstrably hotter in the summer.Footnote 62
It is well documented that those who own their homes—even a modest one—have greater wealth than those who rent. As Richard Rothstein points out, “The value of white working- and middle-class families’ suburban housing appreciated substantially over the years, resulting in vast wealth differences between whites and blacks that helped to define permanently our racial living arrangements. Because parents can bequeath assets to their children, the racial wealth-gap is even more persistent down through the generations than income differences.”Footnote 63 As a consequence of these sustained disruptions of Black property ownership, about 46 percent of young white families own their home, compared to only 17 percent of young Black families.Footnote 64 Additionally, home values differ significantly by race and ethnicity, with the typical white families’ home valued at $230,000 and the typical Black families’ home valued at $150,000.Footnote 65 Even “ubiquitous and persistent” disparities in appraisals have been found, with homes that are identifiably Black-owned receiving substantially lower appraisals than white-owned homes on the market.Footnote 66
With more Blacks as renters, there is greater dependence on owners to provide suitable, habitable housing, especially among those with lower incomes. So much for the tenant “rights revolution” of the last sixty years: the shocking lack of safe, adequate, and secure rental housing has been widely documented, as well as overcrowding, high rents, units far from good schools and jobs, and the prevalence of landlords who continue to bully, blacklist, and retaliate against tenants.Footnote 67 Unsurprisingly, housing instability during the COVID-19 pandemic disproportionately affected minority communities.Footnote 68 Adding to the grim picture is the massive dispossession of tenants from affordable housing that is occurring in many parts of the United States due to a new breed of landlord: private equity investors.Footnote 69
Few Pathways to Ownership, Compounded by Exclusionary Zoning
Against this backdrop, it was supremely ironic that banks engaged in racially targeted subprime lending in the 2000s on the pretext that this would increase Black homeownership. Banks attempted this “reverse” redlining, marketing predatory loans in poor neighborhoods, knowing full well that the properties had been grossly overvalued and that massive delinquencies would occur once the interest rates adjusted upward.Footnote 70 About 8 percent of Black and Latino owners lost homes to foreclosure, as compared to 4.5 percent of whites.Footnote 71 Sadly, reverse redlining continues.
With favorable mortgage financing unavailable to low-income borrowers, another type of predatory lending has been commonly used: the installment land contract. The deed to a parcel is withheld until the last rent payment is made; no equity is gained through payments. Under this arrangement, the seller can retake the property at the first default on rent, even if the buyer has been making steady payments for many years and is close to the purchase date. Long an arrangement involving individual lenders and borrowers, it is now used even by institutional lenders.Footnote 72 Just like subprime lending, it gives an appearance of a pathway to ownership, but actually leads to significant loss of housing.
Along with disrupted access to financing, the greatest obstacle to Black homeownership has been and continues to be the lack of affordable housing, the legacy of twentieth-century zoning. Zoning laid the groundwork for economic and racial segregation, initially offering a mechanism for centralized control of uses and idealizing single-family residential neighborhoods unaffordable to poor whites and inaccessible even to Blacks who could afford it.Footnote 73 The cumulative impact of a century of this “exclusionary” zoning has been the allocation of suburban, exurban, and rural lands to single-family uses and the consignment of multifamily uses to urban areas, with attendant racial segregation; to complicate the picture, many of those older segregated neighborhoods have been gentrified, which results in the displacement of lower-income racial minorities.Footnote 74 These impacts mark a massive failure to pay the social mortgage: the persistent refusal to address obvious housing needs and to allocate land uses in such a way as to create a physical surplus—through small lots, middle housing, accessory housing, and overall denser development—that can be shared with a variety of income classes and that could promote community, stability, affordability, and racial and ethnic diversity.
Undoing exclusionary zoning and replacing it with inclusionary norms have been difficult. In New Jersey, an early leader of the affordable housing movement fifty years ago, the goal of access to and integration of the suburbs by all races and all income classes has been marred by acute municipal resistance and the need for repeated judicial intervention to enforce the social mortgage.Footnote 75 After decades of foot dragging and administrative failures, almost all local governments have finally agreed to their “fair share” obligations, but only because of direct and aggressive involvement from the state Supreme Court starting in 2015.Footnote 76
The persistence of exclusionary zoning has precipitated quite a bit of scholarly criticism and proposals for legal reform. The predominant forms of municipal experimentation involve the use of density bonuses and mandatory set-asides: if affordable units are built as part of a project, the developer is rewarded with more square footage; alternatively, towns can require that a developer set aside a certain percentage of affordable units (usually 10–20 percent), with the remaining sold or rented at market rate. Other options include the low-income housing tax credit, which usually incentivizes developers to build multifamily apartments, and Section 8 vouchers, which subsidize landlords and enables recipients to live in market rate housing at an affordable rent.
While those might seem like innovative options, they are in fact anemic responses to a massive crisis of unaffordable housing; further, they tend to absolve local governments from the obligation to devise more effective measures. With gentrification proceeding apace, and housing costs rising, holding out a small number of units per project in no way meets the great demand, nor does it create truly racially and economically integrated spaces. The lack of coordination among multiple municipalities creates haphazard development. Section 8 has its limitations as well: since there are so few apartments in suburbs, low-income tenants end up in poor urban neighborhoods anyway; or if there are suburban apartments, many landlords refuse to accept the vouchers.Footnote 77
Sacrificing, Restricting, and Sharing Property: Racist Actions, Inadequate Efforts
The story of twentieth-century urban renewal is a well-documented saga of racial and ethnic removal.Footnote 78 The U.S. Supreme Court green-lighted the practice in Berman v. Parker, emphasizing that blighted areas should be rebuilt so that poor people can enjoy neighborhoods that are safe, clean, and beautiful.Footnote 79 But that was never how urban renewal worked. The development in the Berman case itself chased out most of the 5,000 impoverished residents and in twenty years turned the area “from nearly all Black to mostly white.”Footnote 80 This was easy to predict, given that the affordability requirements in the original plan were removed.
Eminent domain condemnations have also been used intentionally to prevent the integration of white neighborhoods.Footnote 81 One particularly striking example involved Howard Venable, an African American ophthalmologist, who in 1956 purchased land in a white neighborhood in Creve Coeur, Missouri, where he began to build a home. Local racism was so virulent that the town simply took Dr. Venable’s property by eminent domain for use as a public park.Footnote 82 A plaque now memorializes the loss.
Stories abound of continued displacement of vulnerable populations and the private benefits reaped at the expense, or even exclusion, of public goals.Footnote 83 In contrast, innovative uses of eminent domain, aimed at helping the most marginalized, have been thwarted. Some cities attempted to take underwater mortgages after the 2008 housing crisis to ameliorate the negative effects of foreclosures on neighborhoods. Mortgage industry resistance was overwhelming.Footnote 84
In addition to eminent domain abuses, severe disinvestment and neglect of poor Black communities have resulted in the failure to build and maintain necessary infrastructure. Neighborhoods continue to suffer from a lack of clean drinking water, air, and land. The recent stories of Flint, Michigan, and Lowndes County, Alabama, involving the lack of clean water and functioning sewer systems, are directly linked to decades of such disinvestment.Footnote 85 In the mid-twentieth century, highway planners often singled out majority-Black areas, destroying cultural centers and bringing decades of economic isolation and environmental harm.Footnote 86 Indeed, the Biden administration’s infrastructure bill aimed to repair the damage from the long “history of racial disparities in how the government builds, repairs and locates physical infrastructure.”Footnote 87
As if crumbling infrastructure were not enough, it is also the case that nuisance harms fall disproportionately on disenfranchised, lower-income communities. Lawmakers have often located noxious, dangerous, or unattractive facilities like prisons, landfills, incinerators, sludge and solid waste operations, and the likeFootnote 88 in or near minority racial or ethnic communities. The government’s failure to restrict such harmful private uses in these areas, together with its failures to invest in necessary infrastructure, is the quintessential meaning of environmental racism. As Pope Francis notes with great moral outrage, these burdens that now fall disproportionately on poor, vulnerable groups will grow even more severe as climate change proceeds.Footnote 89
And even if the required “sharing” of fair housing and fair lending laws is vigorously enforced to ensure nondiscriminatory access to existing housing, there are limits to what can be accomplished in terms of the creation of affordable, integrated housing.Footnote 90 Surely, it is good news that the Biden administration has restored two rules the Trump administration had abandoned: the Affirmatively Furthering Fair Housing rule (local governments taking federal housing money must review policies and pursue efforts to reverse segregation) and the disparate impact rule (banning “neutral” housing and lending policies that have discriminatory impacts).Footnote 91 But their efficacy at the local level remains to be seen.
Property Law Stories: Taking Seriously Social Mortgage Obligations to Address Economic and Racial Injustice
The social mortgage in American property law, in all the ways it encumbers property, inevitably touches on race, whether indirectly in terms of alleviating poverty or directly by addressing racial inequities head-on. In other words, some social mortgage obligations will assist lower income groups and in turn the racial minorities disproportionately represented within those groups. But other law reforms designed to pay that debt will be specifically targeted at race-based conduct to (1) undo the lasting destructive impacts of historical practices, and (2) end contemporary practices with similarly destructive impacts. The regenerative and redistributive impulses of the social mortgage are necessary to ensure the universal destiny of goods and human flourishing.
These Christian concepts, which align with Dr. King’s thoughts on the beloved community, might serve as a bridge between Christians and secular scholars and activists, all of whom are committed to racial inclusion and equity in property ownership and use. The ground is shifting in many positive ways:Footnote 92 more aggressive enforcement of fair lending laws and settlements that put money into communities; the return of Obama era fair housing regulations; the innovative use of land banks to create affordable housing; environmental justice regulations that mitigate the addition of harsh uses in already-burdened minority areas; and realistic proposals for reparations. Below are just a few examples of the work being done by African American property theorists and advocates who are leading the way to understand the problems and offer profound and practical solutions.
Dispersed and Secure Ownership: Preventing Further Loss of African American Heirs Property
Numerous property rules exist to ensure the ease of transferability, which generates the widely dispersed ownership so critical to paying the social mortgage, as noted earlier. Some of those rules govern the co-ownership of land by tenants in common, where each owner has the right to (1) enjoy possession of the entire parcel, (2) convey their individual interest, or (3) force a sale of the entire parcel and split the proceeds among all owners based on their percentage of ownership. Whenever a landowner dies without a will and leaves multiple heirs, those heirs hold as tenants in common.
This seemingly neutral set of rules has had devastating consequences for African American landownership in the South: enormous losses of what is known as “heirs property.”Footnote 93 Given that land-owning Blacks historically did not use wills to dispose of property at death, a decedent’s heirs would co-own the parcel as tenants in common. Over the generations, as heirs died and passed their interests to their own heirs, the shares would become increasingly fractionated, often resulting in a parcel owned by hundreds of individuals. Because any single co-tenant is entitled to force a partition sale of the entire parcel, speculators, investors, and developers (often white) have made it a practice to buy some of the heirs’ shares and then force a sale of the entire property at absurdly low prices. Family members typically cannot compete (or may not even be aware of the sale) and are outbid and lose title; those in possession are forced off the land. In the last hundred years, Blacks have lost millions of acres of farmland worth about $326 billion to these methods.Footnote 94
Property scholar Thomas Mitchell, professor and director of the Initiative on Land, Housing & Property Rights at Boston College Law School, brought these patterns to light over two decades ago. Through his leadership of what has become a national reform movement, the Uniform Partition of Heirs Property Act was drafted, which makes the sales process more transparent and more difficult for outsiders, denies sales in some circumstances, and offers a variety of other protections for heirs.Footnote 95 As of 2021 seventeen states had enacted this legislation, and more are considering it.
This model legislation is an example of the social mortgage in action: protecting vulnerable communities from being stripped of land, and the wealth it represents, by giving them the tools to participate in the market on fairer and more equalized terms, even taking some of the property off the market in certain circumstances. These laws benefit not only African Americans but poor whites in Appalachia and Latinos in the Southwest who have encountered the same type of exploitation.
Pathways to Ownership and the Moral Allocation of Land Uses: State and Local Experiments in Housing for All Income Levels
Undoing entrenched segregated and exclusionary land-use patterns by reorienting the allocation of land uses is difficult and complicated, but some states have tried with some success to incorporate active inclusion of lower income groups (especially racial minorities) into zoning and land allocation decisions. What seems to be critical to the success of any of these efforts is attention paid to the social mortgage concept of surplus property—that is, reconceptualizing land and buildings in ways that emphasize abundance rather than scarcity in order to provide greater housing opportunities.
Fifty years ago, the township of Mount Laurel in southern New Jersey became the symbol of exclusionary zoning, choosing fiscal zoning, that is, keeping property taxes low by limiting the amount of residential development (and especially the numbers of children). Like many towns in less developed parts of the state, Mount Laurel was agricultural but moving toward greater development. Of its 14,000 acres, 10,000 were zoned predominantly for middle- and upper-income single family homes, and about 4,000 were vacant but zoned for industry—with no intention of ever using it for that purpose. The zoning ordinance provided no opportunities for apartments where lower- and moderate-income groups, especially those with families, could be accommodated.
The New Jersey Supreme Court—explicitly reframing the issue as one of class and not race—found this type of zoning code in violation of the state constitution because it did not take into account the welfare of state residents who were outside the township’s borders.Footnote 96 The near-total ban on multifamily housing had the effect of excluding lower-income persons from the town’s borders. As for lower-income persons already inside its borders, in the historically Black neighborhood of Springville, the town treated them with outright hostility, rejecting “any opportunity for decent housing for the township’s own poor living in substandard accommodations.”Footnote 97 The Mount Laurel doctrine, in short, requires local governments to zone in ways that create a range of housing for all incomes, including lower- and moderate-income residents. In so doing, the assumption is that communities will also enjoy racial and ethnic diversity and integration.
The notion that a municipality with surplus land must zone in a way that meets the housing needs of all income classes within the society was—and remains—a stunning statement of the universal destiny of goods and the social mortgage. Today, to achieve affordability and inclusion, we now see a new land use movement emerging in some states and cities that eschews the single-family zone in order to create surplus physical space by allowing the subdivision of large lots into smaller ones, by allowing the construction of middle housing (such as two- and three-family homes) and accessory dwellings on formerly single-family lots, and by accommodating many types of multi-family dwellings on very large lots.Footnote 98 This type of “upzoning” is undoubtedly controversial, but it provides lawyers and policy makers with examples of experimentation and innovation in the discourse over affordable and inclusive housing.Footnote 99
Property scholar Shelby Green, professor and co-counsel of the Land Use Law Center at Pace Law School, goes farther still, arguing that to effectively develop affordable housing, zoning restrictions must be radically revised. She urges that zoning codes allow all housing types (including accessory dwellings, tiny homes, and mobile and manufactured homes, as well as multifamily buildings) as of right in all zones, except heavy industry; that subdivision rules allow residential subdivision as of right, with objective square footage requirements; and that zoning codes allow mixed uses in all zones. Moreover, Green argues that zoning and planning rules must provide that any development, whether commercial or residential, be conditioned on adding a range of housing options, and pave the way for the adaptive residential reuse of abandoned buildings.Footnote 100
Sacrificing Property: California Reparations for Eminent Domain Abuse in the Case of Bruce’s Beach
Racially motivated takings, as noted above with the case of Dr. Venable’s Missouri home, were not uncommon. The same ruthless action was directed against the Bruce family in Los Angeles in the 1920s, but this Black family, a century later, did not have to settle for a plaque.Footnote 101 Willa and Charles Bruce purchased two oceanside lots in Manhattan Beach and established a beachfront resort for African Americans. Blacks began purchasing lots in the area. Whites, incensed by the success of this resort and the increase in Black-owned lands, tried everything to induce Black owners and businesses to leave—from arson, cross burnings, and explosives to ordinances restricting resort and beach uses. When these did not work, the city simply took the Bruce family lots by eminent domain for use as a public park, but not without a protracted fight with the Bruces. Perhaps predictably, no park was built for almost thirty years. The property was later used for a government building.
Manhattan Beach became a fabulously wealthy white area. Persistent efforts in the early 2000s to rename the area “Bruce’s Beach” were finally successful, and a plaque was placed on the property. But after George Floyd’s murder, some in government realized this recognition was woefully inadequate. County officials looked at the history of the taking and concluded that the taking had been, quite simply, land theft. Had the Bruce family been able to hold onto the property, they would have been in possession of an asset worth $20 million. And so, the county set to work to return the land to the Bruces’ descendants, an enormously complex legal effort, which was accomplished by 2022.
Attorney George Fatheree III has an impressive track record of tireless efforts to support African American causes.Footnote 102 While a partner at Sidley & Austin, he worked with the Bruce family and the various governments to ensure that the family was protected. The re-transfer was structured so that the family could opt to sell the land back to the government for its current fair market value. And so, when they realized that they could not develop the land due to zoning restrictions, the family opted to sell the land back, receiving $20 million. The legal framework used for the Bruces’ property has become a model for reparations. Given Mr. Fatheree’s expertise in helping families build wealth through homeownership, many continue to reach out to him for assistance.
Conclusion
Both Pope Francis and Dr. King understand deeply the tragic loss of human vitality and development caused by poverty. Francis notes that the poor are “sacrificed at the altar of money and profit” while the rich worship “an economic model which is idolatrous.”Footnote 103 These words echo the critique of Dr. King, who calls on people to “honestly admit that capitalism has often left a gulf between superfluous wealth and abject poverty, has created conditions permitting necessities to be taken from the many to give luxuries to the few, and has encouraged smallhearted men to become cold and conscienceless so that, like Dives before Lazarus, they are unmoved by suffering, poverty-stricken humanity.”Footnote 104
Yet engaged lawyer-scholars like Terri Montague, who guest edited this symposium. Thomas Mitchell, Shelby Green, and George Fatheree, along with many law professors, lawyers, and professionals in property-related fields, are building the intellectual foundation for social mortgage payments, and leading U.S. society toward the beloved community. In my view, these efforts, whether religious or secular, give expression to the universal destiny of goods—the notion that all people, of all races and incomes, have the right to the material resources they need to flourish. Catholic social thought, reinforced by long-standing Christian notions of surplus and necessity, demands that a private property system be properly ordered to achieve the just distribution of these resources. That proper ordering requires constant vigilance to promote the common good and the obligations of the social mortgage, not only by way of laws and policies that ensure the inclusion of “the least of these” (Matthew 25:40; NIV) in society’s benefits but also by way of laws and policies that continually recalibrate property rights through restriction, redirection, elevation, and subordination. The result? Property rights, both protected and limited, that serve the human person.
Acknowledgments and Citation Guide
I am grateful to Seton Hall Law students Kevin Chamow, Gabriel Cusumano, Gabriela Gutierrez, and Jaden Jackson for their excellent research assistance; to Jeff Fuhrer, Paul Hauge, and Catherine McCauliff for insightful comments on earlier drafts; and to the Seton Hall Law School administration for generous support. My thanks also go to those who commented on earlier drafts at the Emory University Symposium on Law, Christianity, and Racial Justice: Shaping the Future and at the Columbia University Seminar on Catholicism, Culture and Modernity. I have no competing interests to declare. Citations in this article follow the Bluebook, 21st edition.
