The Informal Property Rights of Boomerang Children in the Home

Legal Studies, 1999

The current law of resulting and constructive trusts and proprietary estoppel is acknowledged to provide uncertain and often unsatisfactory remedies to disputes concerning the allocation of property rights in the family home. This article reviews these inadequacies, particularly as they affect the growing numbers of cohabitants, and puts forward radical proposals for reform. It is argued that the special nature of the family homewhere the parties ' relationship is based on 'trust and collaboration ' rather than commercial principlesrequires reform which takes account of the broader contributions of both parties to the home and to the family in allocating property rights. The law should strive to treat all family homes in a consistent way, provide greater certainty of outcome, and yet do justice between the parties. A system of modified community property is therefore proposed. Broadly, this will provide a sliding scale of allocation of property rights over time f o r non-owner partners and a presumption of enhancement of the interest of the primary carer of children of the relationship. However, contracting out should be permitted; and a discretion to adjust the presumptive rights retained by the court where 'manifest injustice' is demonstrated.

The theory that one's home is a psychologically special form of property has become a cherished principle of property law, cited by legislators and touted extensively in the legal scholarship. Influential scholars, most notably Margaret Radin, have asserted that ongoing control over one's home is necessary for an individual's very personhood and ability to flourish in society. Other commentators have expounded a communitarian vision of the home as rooting e is evidence, as discussed in Part III, that dislocation that results in reduced social interaction and relationships is detrimental. Also, dislocation that separates families or impacts family relations is likely to impose psychmacy of the home has encouraged the overproduction of home-protective legislation and added a gloss of moral legitimacy to rent seeking. In light of the political groundswell to "save homes" and the social costs of residential protectionism, it is time for a critical reexamination of the psychological importance attributed to the home. Drawing on the research literature in psychology, sociology, and demography, this Article argues that there is scant evidence to support the theory that one's home is a special object that constitutes psychological personhood or enables a rich web of territorial relationships. The psychology research illustrates the primacy of social relations, not possessions, to self and flourishing. The sociological and demographic data indicate that closely-knit, low-turnover territorial neighborhoods are the exception, not the norm. In view of the high costs and limited psychological benefits of protectionism, I advance an evidencebased and minimal approach to residential protection.

1991

Imaged with the Permission of N.Y.U. Review of Law and Social Change REVIEW OF LAW & SOCIAL CHANGE gaily-recognized ties.' * Ninety-three-year-old Henry Pittman died in 1986, after sharing an apartment for twenty-five years with Annette Baxter and her son Jimmie Hendrix. Though at first Hendrix was only a boarder in Pittman's home, he and his mother quickly began living as a family with Pittman. Since neither was legally related to Pittman, upon his death they faced eviction from their Harlem apartment. With the help of the Legal Aid Society, they challenged their landlord in court, where their household was held to have constituted a family unit, based on Judge Alice Schlesinger's finding that their "relationship developed into one of devoted concern, sharing, trust, loyalty and love." 2 0 Chris Florence, a twenty-three-year-old student in Lexington, Kentucky, is a bisexual man who lives with his female lover of six years and his male lover of three years. The group is open about the relationships they share with each other, but report that their family status is respected by neither their heterosexual peers nor the lesbian and gay community in which they are active. Florence is legally entitled to marry his female partner, but could not secure formal recognition of his relationship with his male partner. He points out that the legalization of gay marriage would not include legal protections for his family, since prohibitions against bigamy would still prevent their joint union. 3 a Edna Freimuth, Winnie Honsinger, and Austin Lederer live together with eleven other elderly people in a large home in Ridgewood, New Jersey. In order to insure privacy, each resident has her own room within the household, though all share common kitchen and recreational space. Members of the household care for one another, and work together to take care of their home. Residents often act as family members; some refer to other residents as "sisters." Winnie Honsinger, an eighty-eight-year-old member of the household, explains: "we are a family; we are compatible and enjoy living together." 4 * Paul and Jane, sixty and sixty-four, respectively, live together in a large frame house on the outskirts of a large suburban area. Though the two have been partners for over seven years and have an ongoing commitment to one another, they have never legally married. This lack of legal status serves to deny the couple many privi-3. Letter from Chris Florence, OUTWEEK: THE LESBIAN AND GAY NEWS MAGAZINE,

2009

What has Love got to Do with It? ANNE BARLOW 'needs to be socially located' (see eg Freeman, 1985: 153-54). Given shifting attitudes and more complex married and unmarried families resulting from changed parenting, partnering, and repartnering patterns and behaviours, this presents a real challenge. In rising to this, it will be argued by drawing on empirical research that it is now time to take stock of both the emotional and economic foundations and commitment on which modern couple relationships are built in order to consider how family law should weigh the competing values of promoting personal financial autonomy yet providing legal protection for the economically weaker partner on brought to you by CORE View metadata, citation and similar papers at core.ac.uk

Legal Studies, 2003

This paper originated in ideas which emerged from discussion with Lizzie Cooke and Stuart Bridge of the Law Commission's work, and then took the form of a paper given to a joint session of the Family and Property law subject sections at the Society of Legal Scholars' ...

2002

Some of the authors of this publication are also working on these related projects:

SSRN Electronic Journal, 2016

Part of the Family Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. This Article is brought to you for free and open access by the Law Journals at UKnowledge.

2017

Practices and Meanings At its core, this dissertation is concerned with what young people do in order to become and be homeowners in different country and urban contexts. In this sense it is concerned with practices involved in looking for and acquiring property, entering in possession of property, contracting a mortgage, giving and receiving financial and in kind support between generations, and homemaking. For the purposes of this dissertation practices are relations assembling both material and discursive, meaning-making (or semiotic), elements (Law 2009; Miller, 2005; Gabriel and Jacobs 2008). Home and housing practices are embodied and meaningful (Clapham 2011). They perform realities (Law and Mol 2008), shaping and being shaped by locally contingent 'technologies of housing' (Jacobs and Smith 2008) from housing stocks, to mortgages and housing policies. The dissertation considers three interrelated dimensions of home and housing practices that together delimit the meanings of homeownership (Fig. 1). Practices of homemaking such as renovating or refurbishing a home, or daily routines of cooking, cleaning, and socializing are perhaps the most basic home practices. They relate directly to the wellbeing of individuals and, they represent occasion for affirming solidarity within families. Also, they are occasions for conflict and for the reframing of relationships. Practices of housing consumption, in particular the acquisition of private housing property through mortgage credit, connect the domestic realm with transnational flows of capital and financialized markets (Aalbers 2008) both enabling wealth accumulation and increasing individualized risks. Thus, the home acquires new meanings as investment object, an asset that is both solid and useable in its material form, and potentially liquid capital (Smith 2008; Cook et al. 2013). Finally, both in its material form and through the mediation of money, housing sustains practices of intergenerational support (Heath and Calvert 2013; Finch and Mason 1993) and asset transmission (Mulder and Smits 2012; Poggio, 2008). Through material and financial transfers between generations, these practices are interconnected with young adults' housing consumption. Meanwhile, through material and practical support they are interconnected with homemaking (e.g. DIY projects, but also advice from older generations to younger ones). Meanings emerge out of practices. They are situated and embodied, as well as reflective and discursive. This dissertation will focus in particular on the meanings of homeownership, and understandings of intergenerational support that emerge from the performance of home and housing practices. Grasping these meanings allows us to reconsider the nature of the self and the individual in late modernity, as well as the nature of families and intergenerational relations. Also, it allows for a more nuanced understanding of the political economy of housing, as intra-family

Notre Dame Law Review, 2020

The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted minds of academic authors. Despite the backlash, an odd thing happened in the more than four decades since Landes and Posner wrote on this topic: their ideas began to take hold. Today, almost all states in the United States permit, in some form, the contractual assignment of parental rights; that is, almost all states now permit the sale of babies. We suggest an ironic reason for the change: the modern technology of in vitro fertilization has quieted or overcome complaints about the commodification of children by moving surrogacy contracts into a longaccepted, though euphemistically labeled, realm of parental property rights in children.

Fordham Law Review, 2017

Moore v. City of East Cleveland1 is undeniably a victory for extended families that do not conform to the nuclear family form because the state can no longer prevent them from living together in one household. In particular, it is a victory for families of color, immigrants, and economically vulnerable families who are more likely to reside with extended family members for cultural and economic reasons. Justice Lewis Powell, writing for the plurality, recognized the American tradition of extended family members living in one household,2 and Justice William Brennan (joined by Justice Thurgood Marshall) further noted that the extended family “remains not merely still a pervasive living pattern, but under the goad of brutal economic necessity, a prominent pattern—virtually a means of survival— for large numbers of the poor and deprived minorities of our society.”3 Like most decisions, however, Moore is not without its critics. As my students point out each year, the Court’s distinction...