Real Property Law and Mass Housing Needs

Abstract

America faces unprecedented housing problems. Such are the needs for new housing, representing a backlog of demand aggravated by the cessation of normal building during the war and the sharp increase in the number of families, that the very extent of the need engenders extraordinary problems. Yet, there has been a continuity of practical experience, in the government's large-scale housing operations before and during the war, which provides a useful point of reference for the action now required. There has also been continuity in basic social, economic, and political structure, and with that, a continuity of the legal accompaniment. The continuity of that legal base and its adaptation to the changing housing problems of successive generations constitute the subject of this paper. is a living thing, in Justice Cardozo's apt phrase. Law is a tool, an instrument of the community and the policies by which it is governed. In real property law as it has evolved through centuries of Anglo-American history, one can see mirrored the progress of the world from a predominantly rural, medieval culture to a highly urban, industrialized system. In general this evolution has been accomplished with respect for the tradition of private property and without radical affront to the legal principle of stare decisis. The shortcomings of the legal tools at hand are among the least of the obstacles to an adequate housing program today, although it must be acknowledged that in some matters the legal system has been sluggish in keeping up with the policy changes at other levels. The history of the refining of those tools, however, contains many an interesting story, and casts light on those legal problems which remain. Without suggesting any sharp demarcation in dates, a breakdown of the history of the readjustment of real property law to developing housing needs into three stages will be useful for our analysis. The first stage is best characterized by the laissez faire era, when the primary function of government was to preserve order, and the courts supported on the whole an individualistic view of questions germane