Legal Protections for Home Dwellers: Caulking the Cracks to Preserve Occupancy

Abstract

The sacred status of a home is reflected in legal norms that safeguard or promote various aspects of home ownership or occupancy, including homestead legislation, residential rent controls, constitutional privacy protections, and tax rules. Despite these significant protections, there is no explicit legal recognition of a home dweller's noneconomic interest in continuing to occupy a home when another stakeholder challenges occupancy. This article suggests a means of ascribing legal value to a home dweller's noneconomic interest in maintaining a particular residence as a home. It does so by focusing on the interests of low-income families living in federally-subsidized housing. Specifically, I suggest that a decision maker evaluate various factors that I prescribe to assess the degree to which a subsidized tenant considers a dwelling to be a home. Where this inquiry indicates that a subsidized tenant's dwelling exemplifies the attributes of a home, the burden should shift to the opposing stakeholder to justify the basis for eviction. This article does not argue for a newfound right but posits that existing legal safeguards for home dwellers reflect a societal determination that a home embodies values worthy of protection. This legal acknowledgement of the social value of home casts a penumbra broad enough to resolve conflicts over occupancy where the law has not previously provided express protection for a home dweller's interest in preserving a particular home.