Property Law for the Ages

54 Pages Posted: 13 Apr 2021 Last revised: 26 May 2021

See all articles by Michael Pollack

Michael Pollack

Yeshiva University - Benjamin N. Cardozo School of Law

Lior Strahilevitz

University of Chicago Law School

Date Written: April 9, 2021

Abstract

Within the next 40 years, the number of Americans over age 65 is projected to nearly double. This seismic demographic shift will necessitate a reckoning in a number of areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more inelastic incomes, and shorter time horizons than those faced by younger people, elderly people encounter a doctrine that often fails to protect their interests.

This Article explores five areas of property law and evaluates how each fits—or, more frequently, fails to fit—the characteristics of many older subjects. From the law of takings to the law of waste, and from tenant protections to homeowners associations, not only is the law a poor fit, but the consequences for the health, safety, finances, and well-being of elderly people are often dramatic. At the same time, one of the rare significant efforts made thus far to protect older people from some of these consequences—the Fair Housing Act’s protection for age-restricted communities—has generated new inequities of its own that raise important questions about competing civil rights priorities. Accordingly mindful of the dangers of over-correction, this Article offers institutional reforms in each area aimed to better protect the interests of older people without unduly infringing upon those of others.

Suggested Citation

Pollack, Michael and Strahilevitz, Lior, Property Law for the Ages (April 9, 2021). William & Mary Law Review, Vol. 63, (2021/22 Forthcoming), Cardozo Legal Studies Research Paper No. 642, Available at SSRN: https://ssrn.com/abstract=3823311 or http://dx.doi.org/10.2139/ssrn.3823311

Michael Pollack (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

Lior Strahilevitz

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-834-8665 (Phone)
773-702-0730 (Fax)

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