The Sheriff Don't Like It

I have more sympathy for Cook County Sheriff Tom Dart than my colleague Mike Riggs does, if the Associated Press's account of Dart's new policy toward foreclosure evictions is correct:

Dart said that from now on, banks will have to present his office with a court affidavit that proves the home's occupant is either the owner or has been properly notified of the foreclosure proceedings.

Illinois law requires that renters be notified that their residence is in foreclosure and they will be evicted in 120 days, but Dart indicated that the law has been routinely ignored.

He talked about tenants who dutifully pay their rent, then leave one morning for work only to have authorities evict them and put their belongings on the curb while they are gone.

By the time they get home, "The meager possessions they have are gone," he said. "This is happening too often."...

Dart said he believes banks are not doing basic research to determine that the people being evicted are, in fact, the homeowners.

He said that in a third of the 400 to 500 foreclosure evictions his deputies had been carrying out every month, the residents are not those whose names are on the eviction papers.

Clearly, some political grandstanding may be at work here. (Dart isn't up for reelection until 2010, but if he plans to jump to higher office this is obviously an effective way to make himself more famous and popular.) And I have yet to see a compelling case for a complete suspension of foreclosure evictions. But I don't see anything wrong with requiring the banks and landlords to keep renters informed of the ongoing foreclosure proceedings so the tenants can plan accordingly, and not come home surprised to find their homes locked and half their possessions stolen. And to the extent that the sheriff is demanding his office receive accurate, appropriate paperwork before it acts, I can't say I object.

If this story sounds familiar, by the way, it's because the populist ex-congressman Jim Traficant did something similar:

In the early 1980s, Traficant was the sheriff of Mahoning County, which surrounds Youngstown. One of his duties was to serve eviction notices, throwing unemployed steelworkers and their kids into the street.

Traficant refused to evict people whose only crime was losing a job. He went to jail himself for refusing to serve eviction notices.

Comments

cunnivore | October 9, 2008, 10:55am | #

Riggs, thou art dissed.

Warren | October 9, 2008, 10:56am | #

If this story sounds familiar, by the way, it's because the populist ex-congressman Jim Traficant did something similar

Hey I remember 'bad hair day' Jim. Always on CSPAN spouting off from the House floor. What ever happened to him?

Brian24 | October 9, 2008, 11:00am | #

I had to stop reading the other thread because my head hurt.

Why all the recriminations? The law generally balances the interests of the lender with those of the renter by saying that the foreclosure voids the lease, but that the leaseholder has to be notified and given some (usually specified) amount of time to vacate.

Why is this so difficult?

domoarrigato | October 9, 2008, 11:00am | #

currently incarcerated for corruption, I believe.

Elemenope | October 9, 2008, 11:01am | #

Riggs, thou art dissed.

Fucking A. Although, I think the winner in that category was a poster on the Riggs thread who pointed out the absurdity, in viewing Balko's crack reporting on police abuses, of Riggs claiming that there is *nothing worse that a cop could do* than when he doesn't back up a bank's claims to the hilt.

phalkor | October 9, 2008, 11:03am | #

He has been forgotten.

and HOW!

The thread before was discussing property rights, correct? Well, this case is one of those muddled up mixed bags where I beleive protecting the tenants from sudden eviction results in a net positive for protecting property rights.

Funny, though, the situation still reeks of total suckitude.

Jesse Walker | October 9, 2008, 11:09am | #

Riggs is entitled to his take on a muddy situation. I'm differing, not dissing.

LarryA | October 9, 2008, 11:11am | #

Dart said that from now on, banks will have to present his office with a court affidavit that proves the home's occupant is either the owner or has been properly notified of the foreclosure proceedings.

Illinois law requires that renters be notified that their residence is in foreclosure and they will be evicted in 120 days, but Dart indicated that the law has been routinely ignored.

Dang. That almost sounds like protecting and serving.

cunnivore | October 9, 2008, 11:20am | #

Jesse Walker,

Nonunanimity of opinion is a weakness our enemies do not share. Those who differ must be assimilated.

KipEsquire | October 9, 2008, 11:24am | #

Every jurisdiction has its own procedural nuances, but it is a ubiquitous misconception that landlords (or sheriffs) can "evict" renters. Generally speaking, only a judge can evict, in accord with the dictates of local property law and constitutional principles of due process.

In this sense, all the media accounts I've seen have been sloppy. Do the banks have court orders or don't they? Is the sheriff defying the banks or the judges?

The answers to those questions determine the proper libertarian response.

P Brooks | October 9, 2008, 11:25am | #

Riggs is entitled to his take on a muddy situation

Noooooooo!

fyodor | October 9, 2008, 11:26am | #

Illinois law requires that renters be notified that their residence is in foreclosure and they will be evicted in 120 days

Doesn't this put the burden on the banks to show that they have followed this rule? There must be something I don't understand (NO WISE CRACKS NOW!) cause it seems like no evictions should take place without this condition being met, and all evictions should take place if indeed the condition is met. It sucks to rent and have to move because of no fault of your own (I've faced having to move quickly a couple of times myself, and yeah it sucks), but that's life for renters unfortunately, and 120 days seems like a reasonable amount of time to allow. No?

Mike Riggs | October 9, 2008, 11:30am | #

LMNOP: Just to be clear--I also think the drug war exemplifies a blatant disregard for property rights.

R C Dean | October 9, 2008, 11:32am | #

Illinois law requires that renters be notified that their residence is in foreclosure and they will be evicted in 120 days, but Dart indicated that the law has been routinely ignored.

Routinely ignored by who? The courts issuing eviction orders? Sheriffs performing evictions without legal authority?

He talked about tenants who dutifully pay their rent, then leave one morning for work only to have authorities evict them and put their belongings on the curb while they are gone.

That sounds to me like a complete urban fairy tale. I don't think its legal in any jurisdiction to evict someone for any reason at all without giving them notice.

Episiarch | October 9, 2008, 11:36am | #

Doesn't this put the burden on the banks to show that they have followed this rule?

All they have to do is mail a letter. That's notification. I doubt they have to even get a return receipt for it.

Look, from a pure property and contract perspective, the owner of the property can do anything they want as long as it is not expressly forbidden in the contract. Which can include saying "get the fuck out NOW".

But this is complicated by local laws, which give notice times and the like. Frankly, without a very detailed rundown on the exact laws and regulations for this particular area, it's impossible to tell who is in the right here. That's what judges are for, right?

Seitz | October 9, 2008, 11:37am | #

Man, I just read the Riggs post. I rent an apartment in Chicago, and I pay my rent on time every month. I assume my landlord is solvent, but I really have no clue if that's the case, and I suppose that I'm the type of person that this *could* happen to (though perhaps isn't incredibly likely).

But after reading Riggs' take, man, what a fucking dick.

Phil L. | October 9, 2008, 11:40am | #

Quick note:

Jim Traficant's expected release date is September 2, 2009.

Looks like the time is ripe for a comeback!

Elemenope | October 9, 2008, 11:42am | #

LMNOP: Just to be clear--I also think the drug war exemplifies a blatant disregard for property rights.

I'm glad we can agree on something.

However, do you not see the War on Drugs as more than simply a property rights violation? When someone shoots your dog or terrifies your kids or holds you at gunpoint on the floor of your home, ransacks your car because "you have a suspicious air about you", there's something being violated beyond the vagaries of property.

Elemenope | October 9, 2008, 11:43am | #

That's what judges are for, right?

I *knew* we gave them those funky black robes for some reason!

joe | October 9, 2008, 11:44am | #

Dang. That almost sounds like protecting and serving.

Ah, so THAT'S what the "serving" part means. Why would they want to put that on the cruisers?

Seitz | October 9, 2008, 11:44am | #

It sucks to rent and have to move because of no fault of your own (I've faced having to move quickly a couple of times myself, and yeah it sucks), but that's life for renters unfortunately, and 120 days seems like a reasonable amount of time to allow. No?

It's plenty of time. Honestly, in my situation, this wouldn't be the end of the world. I'd actually kind of like to move anyway, but my lease has a ways to go. In a typical situation, I'd start seriously looking for a new place about two months before my lease is up, so four months is plenty.

That said, I'd like to know that I have four months, and not just come home to an apartment with changed locks one day.

fyodor | October 9, 2008, 11:45am | #

I rent an apartment in Chicago, and I pay my rent on time every month. I assume my landlord is solvent, but I really have no clue if that's the case, and I suppose that I'm the type of person that this *could* happen to

A) Caveat emptor
B) Read your mail!!

kinnath | October 9, 2008, 11:45am | #

Eviction requires a judge, so what . . .

Imagine a stack of no-knock search warrants with a few blank lines that get filled in at the last moment and then signed by a judge that assumes the person holding the warrant knows the contents are valid.

Now extrapolate to an civil justice system that is overwhelmed by record foreclosure rates.

It's not hard to imagine a sheriff being handed eviction notices that are based on crap.

rhywun | October 9, 2008, 11:47am | #

this is obviously an effective way to make himself more famous and popular

WTF. Making people follow the law is his fucking job. But because it happens to help "the little guy" in this case it can only be "grandstanding".

Elemenope | October 9, 2008, 11:48am | #

Point to kinnath.

John C. Jackson | October 9, 2008, 11:49am | #

Trafficant was refusing to evict deadbeats who were not paying their rent ( since it wasn't their fault they were not paying their bills...).

This sheriff is refusing to evict renters who are presumably paying their rent to deadbeat homeowners who pocket rent money but refuse to pay their mortgages. The renters are apparently unaware of any non-payment and foreclosure proceedings.

Similarities?

fyodor | October 9, 2008, 11:57am | #

All they have to do is mail a letter.

Interesting point. It's easy to imagine such a thing ignored as junk mail in this day and age. When a letter comes from your landlord 30 days before your lease is up, you take notice. When a letter comes from a bank you've never heard of at a random time, not so much.

I would think that having to serve notice of an interruption in the lease would be a reasonable requirement to enforce this particular property right. Whatcha all think of that? It would increase costs which would have some deleterious effects, but if there's any truth to what the sheriff is describing, then I think it may be necessary for fair treatment of renters in this situation.

Episiarch | October 9, 2008, 11:59am | #

WTF. Making people follow the law is his fucking job. But because it happens to help "the little guy" in this case it can only be "grandstanding".

The guy is an elected official. It's perfectly valid to cast aspersions on his integrity.

lunchstealer | October 9, 2008, 12:00pm | #

Traficant's transgression actually points out the way in which Dart is being fairly sensible.

Traficant was just blanket refusing to follow the law. Dart is making an administrative decision to ensure that the law is being followed properly, and that the tenants' contractual rights are also upheld. Contract rights are equally important to property rights, and the banks can't just say "Oh, it's too hard to check and see if the tenant has been notified." You want to use the government's power to enforce your property rights? You be sure you're meeting your obligations under tenants' contractual rights.

ChrisO | October 9, 2008, 12:00pm | #

In Cook County, I assume if you pay the proper amount of "respect" to the proper parts of the Daley machine, all those darned rules mysteriously vanish. And slumlords usually know how to do that.

tom from ohio | October 9, 2008, 12:01pm | #

I've never understood why the law makes an exception to people's leases if the property is sold or foreclosed. Why doesn't the new owner inherit the obligations of the lease? Isn't this one of the risks of lending people money to buy a home?

I can't think of any good reason for this other than the fact that it's more convenient for the banks to just evict people and resell the property ASAP.

Craig | October 9, 2008, 12:07pm | #

I think you guys are missing the point. Many of the people getting evicted from the foreclosed homes aren't even the owners -- they are unsuspecting renters.

It's not surprising that deadbeat owners don't bother to give renters the required legal notice of foreclosure proceedings -- it makes it harder to keep the house rented and the money coming in.

But what happened to posting notices at the house ahead of time? Why stack all the stuff on the curb, instead of hauling it to a secure storage space? And why was the sheriff ever not checking all the paperwork?

fyodor | October 9, 2008, 12:08pm | #

I've never understood why the law makes an exception to people's leases if the property is sold or foreclosed. Why doesn't the new owner inherit the obligations of the lease?

On the previous thread on this subject, someone made the point that liens are superior to leases before the law, and when someone else suggested this should be changed, it was pointed out that in that case, defaulting owners could hold lenders hostage with bogus rent arrangements designed to make the property unsellable.

Seems to me the 120 day notice time is a reasonable comprimise, but I think there needs to be a more reliable notification means than merely mailing a letter.

fyodor | October 9, 2008, 12:12pm | #

in that case, defaulting owners could hold lenders hostage with bogus rent arrangements designed to make the property unsellable

Which in turn would make loans less desirable to give and thus more expensive.

rhywun | October 9, 2008, 12:14pm | #

It's perfectly valid to cast aspersions on his integrity.

Yes, but it's unseemly :P
I don't accuse my coworkers of sucking up to the boss when they're just doing their job.

Elemenope | October 9, 2008, 12:22pm | #

in that case, defaulting owners could hold lenders hostage with bogus rent arrangements designed to make the property unsellable

Bogus rent arrangements created specifically to short-circuit loan obligations can be tossed by courts. We already covered this on the other thread.

Episiarch | October 9, 2008, 12:23pm | #

I don't accuse my coworkers of sucking up to the boss when they're just doing their job.

Your co-workers aren't elected officials who also happen to be cops.

Mo | October 9, 2008, 12:26pm | #

tom,

To prevent the situation where a homeowner gives a lease for a long time, say 20 years, to themselves, a friend or family member for below market rates, then defaulting on the loan and forcing the bank/new owner to honor the shitty terms on the lease.

prolefeed | October 9, 2008, 12:30pm | #

It sounds like the Reason staff posting here haven't done their homework. Is the sheriff defying a valid court order or not? Has the sheriff's department been doing what the banks ask in defiance of the law?

My guess, from hanging around politicians too long, is that this is a case of political grandstanding, someone deciding to ignore the law and play populist and fuck over those evil, evil productive people who own property who are trying to evict those sympathic, good people who haven't been paying their rent.

But, hey, that's just a guess. Can someone at Reason find out what the fuck is actually going on so we can have a useful discussion here? Because it's not that the facts are ambiguous, it's that the reporters at H&R haven't done their fucking homework.

/rant

thoreau | October 9, 2008, 12:31pm | #

If the concern is that an owner threatened with foreclosure might make a long-term lease to render the property unsellable, we have options intermediate between "Terminate ever rental agreement immediately" and "Honor even the most outlandish rental agreement." Rental agreements could be terminated on some schedule that lets the new owner sell in a reasonable frame but also lets the old tenants (who are paying their bills!) relocate in a reasonable time frame. It's in nobody's interest to have a bunch of crap stacked on the curb in front of the foreclosed home and a screaming former tenant standing there trying to get a lawyer on the phone.

Something like, say, a law (binding on the sheriff who serves the eviction notice) saying that eviction after foreclosure requires X number of days of advance notice.

Regarding notice, as somebody said above, if I got a letter from a bank that I don't do business with, postmarked from Delaware or the handful of other locales that so many bank letters are postmarked from, I'd probably think it's a credit card offer and shred it.

rhywun | October 9, 2008, 12:33pm | #

PS. I agree that 120 days is more than enough time to find another place. I typically do it in like a week.

cunnivore | October 9, 2008, 12:34pm | #

Bogus rent arrangements created specifically to short-circuit loan obligations can be tossed by courts. We already covered this on the other thread.

More accurately, you asserted this and refused to respond to those who questioned the assertion.

rhywun | October 9, 2008, 12:36pm | #

what the fuck is actually going on

This thread has warped my fragile little mind.

Jake and Elwood Blues | October 9, 2008, 12:36pm | #

This is Cook County? That's our turf! We'll have a concert to raise money to pay off everyone's delinquent mortgages. We'll call it a mission from God so while we're causing mayhem and destruction we'll look like the good guys. And we'll keep the cops so tied up they won't have time to evict anybody.

cunnivore | October 9, 2008, 12:44pm | #

The problem is that some people are talking about this particular case, while others are talking about whether mortgage lenders should always be on the hook for any lease on a property they foreclose.

In this case, the sheriff is following the law, so there's no problem. I don't think anyone is seriously questioning that now that that fact is widely known.

In the general case, there is strife in H&R-Land.

The Angry Optimist | October 9, 2008, 12:51pm | #

Really, there is a place for nuance and I see both sides of the arguments.

This "argument" was triggered when certain posters (El, that'd be you and others) said that libertarians are basically inhuman robots and need to have their humanity taken away for taking a side in this issue.

It was crap. that's what pissed everyone off.

R C Dean | October 9, 2008, 12:53pm | #

Regarding notice, as somebody said above, if I got a letter from a bank that I don't do business with, postmarked from Delaware or the handful of other locales that so many bank letters are postmarked from, I'd probably think it's a credit card offer and shred it.


Competent banks and lawyers send legally required notices that start 120 day clocks ticking via certified mail. Not to say that happened here in all cases, of course. But I would be surprised to learn that it isn't SOP to do so.

Anyone who throws out a certified letter that they just signed for without reading it, well, they can take personal responsibility for that, in my book.

That said, it sounds to me like what the Sheriff is doing is the right thing. I am curious about whether a bank or any landlord can evict a tenant without a court order of some kind in Chicago - I would be shocked to learn they can.

I would also be disappointed, but not surprised, to learn that the Chicago courts issue these orders in violation of the law requiring 120 day notice.

a knight | October 9, 2008, 12:54pm | #

The fuzzy bunny fantasy of Austrian Gruel libertarianism, which is self-contradictory when it holds that a state should be anemic and ALL private property rights are sacrosanct.

Natural property rights (simple property rights, for those who are wont to play metaphysical non sequitur) extend out only as far as an individual utilises property directly in their day to day life. All else is a gift of the state.

It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society.

Thomas Jefferson, letter to Isaac Mcpherson, August 13, 1813

The natural right to property belongs to the individual who directly utilises it. It takes state or private coercion to assert a complex right to property over the individual who physically possesses it. A philosophy that claims the good of a weak and anemic state at the same time it claims an ultimate right to possess complex forms of private property is naught but fantasy.

It is questionable libertarianism in this instance also, because it places a complex property rights claim by a collectivist business entity on a higher plane than a simple claim of property by an individual. Market socialism, pure and simple.

prolefeed | October 9, 2008, 12:59pm | #

As for why a bank might want to evict people who are paying their rent, a similar situation occurred here in my hometown in Hawaii recently. A bunch of run-down apartment buildings under leasehold had their lease expire, the property owner decided to serve valid eviction notices so they could tear the buildings down, install a modern sewer system, and then build more units in much better condition on the same property.

Of course, the existing tenants sued to stay in their apartments. For once, the courts did the sensible thing and enforced the property rights of the owners, who torn the buildings down and are preparing the land for the new buildings.

Now, for the leftists here -- was this a bad thing to do, because some people got evicted and had to find a new place to live, even though property rights were preserved and there will be a net increase in housing stock in better condition when all the construction is finished?

lunchstealer | October 9, 2008, 1:06pm | #

I agree that 120 days is ample warning. So long as the warning is delivered reasonably. For something as dramatic as eviction/foreclosure, I would say that a letter in the mail is insufficient. There should be a physical delivery by a courier to put it in someone's hand, so some similar verifiable delivery method. Seriously, the proceedings to foreclose are already going to be racking up money, so the cost of delivering notice wouldn't be that big an incremental cost.

Elemenope | October 9, 2008, 1:06pm | #

This "argument" was triggered when certain posters (El, that'd be you and others) said that libertarians are basically inhuman robots and need to have their humanity taken away for taking a side in this issue.

I'll cop to believing that elevating property rights over human rights is fairly inhuman, and saying so aloud.

Sue me.

thoreau | October 9, 2008, 1:09pm | #

Competent banks and lawyers send legally required notices that start 120 day clocks ticking via certified mail. Not to say that happened here in all cases, of course. But I would be surprised to learn that it isn't SOP to do so.

I wonder how competent and ethical some of the players in this subprime market are. The bank that loaned to a deadbeat landlord may not be operating at the top of the game, you know?

That said, you are right, I certainly would not toss out a letter that I just signed for. That's very different from tossing out something that looks like junk mail.

lunchstealer | October 9, 2008, 1:11pm | #

As for why a bank might want to evict people who are paying their rent, a similar situation occurred here in my hometown in Hawaii recently. A bunch of run-down apartment buildings under leasehold had their lease expire, the property owner decided to serve valid eviction notices so they could tear the buildings down, install a modern sewer system, and then build more units in much better condition on the same property.

That's a different animal. I've had a landlord decide to sell a house and give me notice that I'd have to vacate at the end of my lease. I didn't have any problem with that. It was his house, and my lease was up, so he could renew or not renew at his discretion.

Again, evictions are not the problem. Evictions without proper notice to people in the middle of their lease, the terms of which they are following, are the problem.

The Angry Optimist | October 9, 2008, 1:13pm | #

I'll cop to believing that elevating property rights over human rights is fairly inhuman, and saying so aloud.

False dichotomy. That's what people are trying to (reasonably and calmly) tell you, and you want to act like a jackass.

It's really disappointing; I don't have time for people who are just going to believe what they want anyway and act like petulant children.

The Angry Optimist | October 9, 2008, 1:14pm | #

Or IOW, El, "Grandstand Harder! It Makes You Cool!"

David | October 9, 2008, 1:14pm | #

Seems to me the 120 day notice time is a reasonable comprimise, but I think there needs to be a more reliable notification means than merely mailing a letter.

Posting a "notice of foreclosure proceedings" to the front door, or having someone serve the occupants with papers before dumping all their possessions on the sidewalk would probably do.

fyodor | October 9, 2008, 1:22pm | #

I'll cop to believing that elevating property rights over human rights is fairly inhuman, and saying so aloud.

Sue me.

Or maybe just steal from you. That'll probably convince you that property rights ARE human rights.

robc | October 9, 2008, 1:22pm | #

Rental agreements could be terminated on some schedule that lets the new owner sell in a reasonable frame but also lets the old tenants (who are paying their bills!) relocate in a reasonable time frame.

Good idea! I suggest 120 days.

Elemenope | October 9, 2008, 1:23pm | #

False dichotomy. That's what people are trying to (reasonably and calmly) tell you, and you want to act like a jackass.

Riggs made an outraged post about how a police officer wouldn't throw renters who have paid their contractually obligated rent out on the street in order to defend a bank's property rights, and if you can't figure out what's morally wrong with that, there's really no hope for you.

None at all. It isn't grandstanding, it's "Re-orient your fucking priorities 101".

robc | October 9, 2008, 1:26pm | #

Rights never conflict (or at least one of them isnt a right) so it is impossible to elevate property rights over human rights.

Elemenope | October 9, 2008, 1:27pm | #

That'll probably convince you that property rights ARE human rights.

No doubt. Two problems:

1. Property rights are not the *only* human rights, and I'd argue not even the most important. Review, if you'd be so kind, the discussion on the other thread about the manifold priority orientations of [Life], [Liberty], [Property].

2. Banks aren't human, as such, and the idea that a fictional legal construct can have rights that supersede a real being's rights is utterly absurd. The funny part about this argument in particular is that it is usually Libertarians making this argument when the fictional legal construct is "the State".

David | October 9, 2008, 1:27pm | #

Also, I say occupants because I think the key is for whoever is living at the property to receive notice. It doesn't do any good to send a letter only to the landlord, as said landlord might not bother to tell his tenant anything about the foreclosure. If that means that all letters must go out in duplicate, one to the location being foreclosed, and one to the address of the person who mortgaged it, then that's what it means.

Elemenope | October 9, 2008, 1:28pm | #

Rights never conflict (or at least one of them isnt a right) so it is impossible to elevate property rights over human rights.

You're gonna have to go ahead and substantiate that with something stronger than "Kant said so" because that's a whopper of a claim.

Duties conflict.

Rights conflict.

Is the resolution of these conflicts not THE WHOLE PURPOSE OF THE LAW?!

prolefeed | October 9, 2008, 1:29pm | #

I'll cop to believing that elevating property rights over human rights is fairly inhuman, and saying so aloud.

Sue me.

Nah, dragging lawyers into it won't fix the problem, which is that you apparently think that eviscerating private property rights somehow makes poor people better off, despite abundant evidence to the contrary.

Do you feel the same way about Zimbabwe, LMNOP, where the state confiscated private property owned by those rich white productive farmers, and turned it over to poor people, resulting in a dramatic decrease in investment and productivity on that farmland and economic chaos and hunger, harming the poor people in Zimbabwe?

I own a rental house, LMNOP. I've been providing housing for a series of people for over a decade now. Guess what my reaction would be if some liberal politicians decided that "human rights" trump "property rights"? Think I would still keep that house as a rental if there was a possibility that the renters might be able to use politicians to confiscate my property? Hell, no.

Property rights are human rights. Governments that don't recognize that basic fact tend to inflict all sorts of misery on their subjects, despite having the best of intentions.

fyodor | October 9, 2008, 1:29pm | #

I think most of the, um, Reasonable people (drink!) here can find a lot to agree with.

To wit:

If the Sheriff is grandstanding and taking the law into his own hands without there being a real legal problem here, he's being a dick. But without knowing more, it's pretty damn impossible to say.

If people are being evicted without knowing that they had been given 120 days to move, something's wrong here. And if that's the case (and maybe it's not, we don't know) perhaps the law should be changed to make this notification more clear. And maybe the law should be changed to transfer valid leases in forfeitures as long as there's no reason for lenders to fear destructive leases.

Right-o?

Seitz | October 9, 2008, 1:30pm | #

That's a different animal. I've had a landlord decide to sell a house and give me notice that I'd have to vacate at the end of my lease. I didn't have any problem with that. It was his house, and my lease was up, so he could renew or not renew at his discretion.

Right. When my lease is up, I'm under no obligation to sign a new one, and my landlord is under no obligation to offer me a new one. If he says "as of August 1st, the apartment isn't yours anymore", that's not a problem. It is a problem if my lease runs through July, and and on January 25th he says "as of January 26th, the apartment isn't yours anymore".

The Angry Optimist | October 9, 2008, 1:30pm | #

if you can't figure out what's morally wrong with that, there's really no hope for you.

Why don't you explain it to me?

Or you can just keep grandstanding.

David | October 9, 2008, 1:31pm | #

Sounds fair to me, fyodor.

The Angry Optimist | October 9, 2008, 1:32pm | #

fyodor - as usual, I think you're spot on. The real question is when hyperemotional twats on this board are going to stop beating us about the head and shoulders with Truths-So-Obvious-They-Don't-Need-Proving and telling us all how inhumane we are.

fyodor | October 9, 2008, 1:33pm | #

Banks aren't human, as such, and the idea that a fictional legal construct can have rights that supersede a real being's rights is utterly absurd.

Oh jeez. And what are banks made of, robots? Lizards? Corporations are made up of people. It's not a "fictional" legal construct unless you think the law is fictional. You may disagree with corporate law, I'm undecided myself, I can see it both ways. But corporations are just groups of people who have been given a particular form of legal standing. That's all.

cunnivore | October 9, 2008, 1:33pm | #

Elemenope, what "human rights" are we saying should be violated? I don't believe there's a right to an apartment.

The Angry Optimist | October 9, 2008, 1:34pm | #

It is a problem if my lease runs through July, and and on January 25th he says "as of January 26th, the apartment isn't yours anymore".

Wait, peoples. I agree that the notice makes sense, but I have to ask: no one here thinks the lease should somehow override or replace the "true" property rights here, do they?

A lessor cannot bind a bank!

cunnivore | October 9, 2008, 1:35pm | #

I wonder if the liberal wing of H&R thinks that the govt has to honor leases on property that it seizes via eminent domain.

Seitz | October 9, 2008, 1:38pm | #

Wait, peoples. I agree that the notice makes sense, but I have to ask: no one here thinks the lease should somehow override or replace the "true" property rights here, do they?

A lessor cannot bind a bank!

I wasn't talking about the bank. I was talking about my landlord. I'm pretty sure the post that sparked the initial comment (prolefeed @ 12:59) wasn't talking about a foreclosure either. Sorry if I got that wrong.

Owning property doesn't give you the right to contract with someone regarding its use, then break the contract all willy-nilly just because you're the owner.

fyodor | October 9, 2008, 1:39pm | #

Thanks Angry Optimist.

LMNOP, re rights prioritization. That'll take a book to discuss in detail, but look at the facts of THIS case. Is 120 days too much to ask? If that's not being followed, then why not? I've suggested some solutions, you've called your opponents inhuman. Unless you're against ALL eviction, there's time when the property rights of the big bad landlord are supposed to be enforced, right? If this case has brought up some problems with current law, then let's change it! Whether a sherriff refusing to enforce the law is a correct thing in the meantime, I don't know, as I said already, I'd have to know more. But you don't have to know more, you just know we're inhuman. Heh, maybe we run banks!

Elemenope | October 9, 2008, 1:42pm | #

I don't believe there's a right to an apartment.

Right to contract? Lessee and landlord signed contract in good will, with terms that the landlord shall provide accommodations in return for a monthly payment.

Bank tells landlord that he no longer has title to lessee's apartment and as such the lessee/landlord agreement (the lease) is void. How is that not third party interference in the execution of a duly negotiated contract? *Especially* since the bank did not disallow the landlord from making promises upon the title of the land as part of the terms of the mortgage, in effect signaling that it is A-OK with the landlord binding the titled lands to those terms.

robc | October 9, 2008, 1:45pm | #

lmnop,

You're gonna have to go ahead and substantiate that with something stronger than "Kant said so" because that's a whopper of a claim.

Its just basic logic. If one right is superior to another, then the inferior one isnt a right, because, a right, by definition (at least mine) is universal.

I admit it is almost a tautology and not that useful in practice.

For a simple and cliched example, you dont have a right to yell fire in a crowded theatre. Is this because life and speech rights are in conflict and life wins out? No, it is because causing panic isnt part of the right to free speech. Its not that one right is superior to the other, its just the right doesnt extend to that particular action.

Elemenope | October 9, 2008, 1:45pm | #

But corporations are just groups of people who have been given a particular form of legal standing. That's all.

No, that's *not* all. They are people who are granted the ability to hide negative consequences of their collective acts behind a liability shield. That changes the fundamental nature of the beast.

Elemenope | October 9, 2008, 1:49pm | #

If one right is superior to another, then the inferior one isnt a right, because, a right, by definition (at least mine) is universal.

I think that's where we are going past one another. I think one would be very hard pressed to find such a "right" in practice. Is there any right you can think of that is not delimited by some interfering condition or action?

In my conception, "rights" as we are talking about here are constellations of concepts that have been identified as valuable to attach to human beings. They are neither complete nor universal, and conflict all the time.

The type of right that I think rightly is called a "right" is that which a person is willing to die and kill for, that is, use force and sacrifice to protect. I imagine such a right would inhere only to an individual as such and be impossible to codify or quantify beyond observations of actions.

robc | October 9, 2008, 1:50pm | #

lmnop,

*Especially* since the bank did not disallow the landlord from making promises upon the title of the land as part of the terms of the mortgage

Actually, he did. It was just done implicitly thru the law and was unnecessary to put in the mortgage agreement. If the law was changed, the contracts would change. There would be a specific clause requiring any rental agreements to have a dissolution clause - also probably requiring the bank to approve any rental agreements.

Just like **most** mortgages dont allow you to sell the house and pass the mortgage on to the next guy. This is a specific clause because the law allows you to do it. When the law already makes the arrangements, there is no need to put the clause in the contract.

fyodor | October 9, 2008, 1:51pm | #

No, that's *not* all. They are people who are granted the ability to hide negative consequences of their collective acts behind a liability shield. That changes the fundamental nature of the beast.

Yeah, there's pros and cons to limited liability. As I said already, I can see it both ways. But there's reasons for and advantages to the legal institution of limited liability, and it hardly makes banks "fictional legal constructs" that aren't human and don't have rights. You're moving the goal posts to even bring up limited liability. My point was that corporations are made up of humans and those humans have rights just as anyone else does.

robc | October 9, 2008, 1:57pm | #

lmnop,

I think that's where we are going past one another. I think one would be very hard pressed to find such a "right" in practice. Is there any right you can think of that is not delimited by some interfering condition or action?

I agree we are going past each other and, like I said, my definition is basically a tautology, but here goes:

Lets take the right to life. I claim it is universal. But what about your right to self defense? If I am trying to kill you arent our rights in conflict? No, not at all, because while I am trying to kill you, I have no right to life.

To put it another way (and to show the somewhat silliness and correctness of my position) the right to life is universal, except when it doesnt apply at all.

Those interferring conditions/actions do delimit the right. They make it not exist. But within the cases it does exist, it is universal.

I think we are close in agreement but defining terms differently.

Elemenope | October 9, 2008, 2:00pm | #

My point was that corporations are made up of humans and those humans have rights just as anyone else does.

I'm not disagreeing with the point above.

What I'm saying is that "those humans" aren't individually suing to have their individual human right to property respected. Especially since no individual has claim to the property at issue. Instead, a nebulous umbrella for the collective is suing, acting as the entity rather than as a mere collection of persons.

A number of individuals acting alone is different in kind from a group acting together. A pack of wolves can bring down large enough prey to feed the entire pack where a haphazard collection of unassociated wolves on the same land might starve for lack of the ability to bring down such game individually.

Elemenope | October 9, 2008, 2:01pm | #

I think we are close in agreement but defining terms differently.

Indeed.

robc | October 9, 2008, 2:08pm | #

lmnop,

A number of individuals acting alone is different in kind from a group acting together.

However, one of our rights is the right of assembly. To me, this means, in part, the right to act as a group instead of as individuals alone. When acting as said group, no rights (what with them being universal and all :) ) are lost.

R C Dean | October 9, 2008, 2:10pm | #

I'll cop to believing that elevating property rights over human rights is fairly inhuman, and saying so aloud.

Your rights under your lease are property rights, so unless you are saying that people should have the "human right" to live in a given apartment without first leasing it, then I don't see any elevation of property rights over human rights.

RT | October 9, 2008, 2:12pm | #

No, that's *not* all. They are people who are granted the ability to hide negative consequences of their collective acts behind a liability shield. That changes the fundamental nature of the beast.

No, this is completely misleading. The directors and officers, the ones making the decisions, do not have limited liability as you should know from Enron. They can not only be sued personally they can and were held criminally responsible. The corporation itself does not have limited liability for its actions. It can be sued for its entire net worth. The only limitation on liability is for the shareholders so that some little old lady who bought a few shares of Enron for her retirement doesn't get, you know, evicted from her home when Enron goes under. Given your purported sympathies I'd think you'd agree that such a provision is a good thing. At any rate it has nothing to do with the ethical/moral standing of a corporation's actions.

prolefeed | October 9, 2008, 2:13pm | #

Not everyone wants 120 days notice. For my rental property, we had an initial one year lease, with it going month-to-month after that, at the tenant's request, because they didn't want to be locked into another year-long lease. And now they've exercised their option and given me notice that they want to move out at the end of this month. So now I'm gonna have an empty house for however long it takes to find another renter, and forgo that rental income, and pay the property manager most of the first month's rent when they do find someone as a commission, and maybe shell out for repairs.

So, LMNOP, do you see why maybe I might want to be compensated for all the risks I'm assuming here that benefit my tenants, and know that my property isn't going to be confiscated to boot by liberal politicians spouting off about "human rights"?

The point of secure property rights is to protect BOTH parties. I can't legally evict my renters before their lease is up and without giving proper legal notice, and they can't decide, what the fuck, it's a nice place, so let's just stay here and quit paying rent. We both have a contract we've voluntarily entered into, and we both have to follow it, and if either of us breaks the contract, law enforcement needs to step in and protect the injured party.

So, regarding this original topic of this thread, to the extent that the sheriffs are following the law I agree with their actions -- that is, if they felt the banks were playing fast and loose with the law about notifying tenants about evictions and they belatedly realized this and decided to start enforcing the law as written, good on them.

But, if they decided to unilaterally make up their own laws and ignore their sworn duties as law enforcement officers, and not ever evict another person again no matter what the circumstances, then they should be tossed in jail.

And I would appreciate it if the employees at Reason would do their effing job and find out which of these two scenarios was in fact taking place so we could have a more informed discussion about this topic.

R C Dean | October 9, 2008, 2:13pm | #

A number of individuals acting alone is different in kind from a group acting together.

Sure, sure. But is this a distinction that makes a difference? What rights are you prepared to strip from individuals acting in a group, and why?

To take the example in front of us, why should allow an individual to evict someone with 120 days notice, but prohibit a corporation from doing so?

fyodor | October 9, 2008, 2:14pm | #

What I'm saying is that "those humans" aren't individually suing to have their individual human right to property respected. Especially since no individual has claim to the property at issue.

But SO WHAT? They've pooled their resources and are acting as a group! SO WHAT? What effect does that have on their right to the property? None that I can tell!!

Instead, a nebulous umbrella for the collective

What's nebulous about it?

acting as the entity rather than as a mere collection of persons.

Yes, a group of people acting as one, which the law gives them legal standing to do. SO WHAT?

A number of individuals acting alone is different in kind from a group acting together.

How so, other than you says so?

A pack of wolves can bring down large enough prey to feed the entire pack where a haphazard collection of unassociated wolves on the same land might starve for lack of the ability to bring down such game individually.

Ha-ha, well good for the pack then, right? Are you saying it's unfair to team up as a group? How about the Sierra Club then? Again, corporate law has its pros and cons, but that's a separate issue and hardly affects the issues here.

Damn, I hope I can constrain myself from bothering with this further......

Elemenope | October 9, 2008, 2:31pm | #

prolefeed @ 2:13pm

I find very little in that post that I disagree with, though some of it is off-point to what is being discussed. Obviously I believe that both the landlord and tenant are bound to uphold their parts of the contract.

The point of problem here is when the bank reclaims its property interest from the landlord due to a foreclosure, what happens to the tenant? Does the lease still exist? To what extent does the bank have to honor the lease?

Those are the questions that have everyone up in a tizzy.

robc | October 9, 2008, 2:32pm | #

And I would appreciate it if the employees at Reason would do their effing job and find out which of these two scenarios was in fact taking place so we could have a more informed discussion about this topic.

THIS. A THOUSAND TIMES THIS. Enough that I bolded it.

ed | October 9, 2008, 2:32pm | #

He [Traficant] went to jail himself for refusing to serve eviction notices

Huh. I thought it was for a laundry list of felonies, not to mention dressing badly on the House floor. And a very bad toup.

robc | October 9, 2008, 2:33pm | #

Does the lease still exist? To what extent does the bank have to honor the lease?

No. None at all. These questions (and many others) were answered by the law.

The Angry Optimist | October 9, 2008, 2:35pm | #

No, El, your vicious smear that those of us who see differently from you are "less than human" was what has everyone in "a tizzy".

Perhaps, given the level of complexity this has risen to, you should apologize for implying that your position was oh-so-simple and only heartless lizards wouldn't get it.

The type of right that I think rightly is called a "right" is that which a person is willing to die and kill for, that is, use force and sacrifice to protect.

That is the most nonsensical delineation I've ever seen. ANYTHING that people are willing to die for? Like God? Country? The Universal Communist Cause?

Elemenope | October 9, 2008, 2:51pm | #

TAO --

Methinks you protest too much. You're taking it a little personally.

That is the most nonsensical delineation I've ever seen. ANYTHING that people are willing to die for? Like God? Country? The Universal Communist Cause?

See other thread. Necessary BUT NOT sufficient quality.

The Angry Optimist | October 9, 2008, 2:55pm | #

El - just admit that the issue isn't as simple and black-and-white good-and-evil as you made it out to be AND that you wrongly ascribed malevolence to those who disagreed with you.

If you can come up with a right that conflicts with another, I'm all ears.

Elemenope | October 9, 2008, 2:57pm | #

THIS. A THOUSAND TIMES THIS. Enough that I bolded it.

That would be nice. They are only human. :)

No. None at all. These questions (and many others) were answered by the law.

And I seek not the positive answer but the normative one. *Should* the lease still exist, and *should* it still be honored by the bank?

Harder questions, I think, for all the reasons that have been talked about on both threads.

Rich Ard | October 9, 2008, 3:03pm | #

Let's back up a little bit here - it's not that liens outweigh leases on the whole, but that a lien with priority over a lease extinguishes the lessee's interest upon foreclosure of the lien.

For commercial leases, this is why so often subordination / non-disturbance agreements are part of the land financing process - to ensure that a lessee will not be thrown out inadvertently if the lessor defaults on a lien that has priority over the mortgage.

Most residential tenants have no say in this...but there seems to be an assumption here that any mortgage foreclosed would terminate a lease on the property.

Rich Arrgh | October 9, 2008, 3:04pm | #

to ensure that a lessee will not be thrown out inadvertently if the lessor defaults on a lien that has priority over the lease.

Rich Again | October 9, 2008, 3:10pm | #

...on the other hand, if you don't record your lease with your county registrar, the bank has no notice of the lease, and can claim priority...so the lessee's recourse would be against the presumably insolvent lessor. No money there, and no shelter.

robc | October 9, 2008, 3:16pm | #

lmnop,

And I seek not the positive answer but the normative one. *Should* the lease still exist, and *should* it still be honored by the bank?

Harder questions, I think, for all the reasons that have been talked about on both threads.

Not really any different. As I said up above, if the law was different, the bank contracts with the landlords would be different. In the end, it would reach roughly the same results. I think the law exists to prevent a worse case scenario, which is the bank contracts would require the lease contracts to terminate on foreclosure and banks would be kicking people out with 24 hour notice, or whatever.

It seems to me that the 120 day rule, while arbitrary, balances out the needs (notice I didnt say rights) of all the parties involved.

robc | October 9, 2008, 3:20pm | #

I think an analogy can be drawn to bankruptcies. The landlord being foreclosed upon is similar to a person filing for bankruptcy. Their debt (to provide housing) is cancelled and assets seized and distributed to lien holders and etc. When I acquired assets from a company that went bankrupt (actually, Ive gotten dick so far, but hypothetically), I didnt also acquire their contractural obligations.

Now, whether bankruptcy should exist is an entirely differnt question. I think from a practical standpoint, it has to exist.

Elemenope | October 9, 2008, 3:44pm | #

It seems to me that the 120 day rule, while arbitrary, balances out the needs (notice I didnt say rights) of all the parties involved.

I agree that it is certainly a better balance than "throw them out tomorrow". I don't exactly buy your equivalence to bankruptcy law, since unlike in bankruptcy none of the parties involved are strangers to the asset in question, and if the bank had a problem with a piece of property that they have mortgaged being encumbered with a lease with a third party it should say so up front.

-----------

Tangentially, TAO's indignation about my indignation about how the rank-and-file reacted to a Law Man saying "whoa, they aren't giving proper notice and obeying the 120-day rule" has deeper roots. That root was why I was impugning the motives of those who reacted originally. i.e. before knowing all the facts, the law at issue, really anything about the situation, they piled on with "Bad law man" which indicates something about where people's default priorities lay.

robc | October 9, 2008, 3:56pm | #

lmnop,

if the bank had a problem with a piece of property that they have mortgaged being encumbered with a lease with a third party it should say so up front.

Is that what I have already said twice and now am about to say a 3rd time?

The banks said this implicitly thru the law (maybe explicitly if they lobbied to get the law).
The banks would have said this explicitly if the law didnt already exist.

The reason they didnt say so up front was because they didnt need to - the law handled it for them. I dont go around asking people not to murder me - the law takes care of that for me.

Kolohe | October 9, 2008, 4:47pm | #

Of course, the existing tenants sued to stay in their apartments. For once, the courts did the sensible thing and enforced the property rights of the owners, who torn the buildings down and are preparing the land for the new buildings.

Now, for the leftists here -- was this a bad thing to do, because some people got evicted and had to find a new place to live, even though property rights were preserved and there will be a net increase in housing stock in better condition when all the construction is finished?

Well, also being in Hawaii, I'm also familar with the Kailua case. Those tenants had literally *years* of advance notice that the leasehold was expiring. Some bet on the conversion, as had happened in other places. They lost. Esp those who bought in within the last few years (and are terminally stupid if they didn't realize the 'catch' in buying a $40K- $50K condo).

To summarize, the cases are in no way similar.

Kolohe | October 9, 2008, 4:49pm | #

and just to emphasize prole-

The people in Kailua were paying rent. And the lease *expired*. That's a pretty fundamental difference.

Kolohe | October 9, 2008, 4:56pm | #

I own a rental house, LMNOP. I've been providing housing for a series of people for over a decade now. Guess what my reaction would be if some liberal politicians decided that "human rights" trump "property rights"? Think I would still keep that house as a rental if there was a possibility that the renters might be able to use politicians to confiscate my property? Hell, no.

And I rent a house (not too far from you actually). Would you have no problem if I got home from work and my crap was on the curb* because my landlord got foreclosed without telling me**?

*actually it would help. I need to do a major spring cleaning anyway

**before signing the lease last Jan, I specifcally asked her if her mortgage situation was solid.

Kolohe | October 9, 2008, 5:02pm | #

Now that I've read the rest of the thread, I see what your saying. And I'll need a place in Jan, if you're still vacant. How's the drive to Pearl?

Elemenope | October 9, 2008, 6:25pm | #

The people in Kailua were paying rent. And the lease *expired*. That's a pretty fundamental difference.

No argument from me.