Real Estate and the Supreme Court

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House and Scales of Justice on wood table. Concept mortgage, foreclosure, refinance

While news commentators go on and on about how confirmation of Donald Trump’s pick for the Supreme Court might affect issues like abortion and immigration, there’s been little or no discussion about how it could affect real estate.

In fact, we don’t often think about the Supreme Court and real estate, but it has a huge impact over the years.

Judge Brett Kavanaugh is a conservative and is said to be a strict Constitutionalist. As such, he might be expected to favor less governmental interference in property matters. His record as a circuit court judge seems to support that assumption.

What property-related issues are likely to come before the Supreme Court in the immediate future?

Back in 2005, in Kelo v. City of New London, the court ruled in a 5-4 vote that local governments could use eminent domain to take private land when private redevelopment would benefit the community economically.

While the Supreme Court does not usually reverse its rulings, a case centered on a new aspect of eminent domain could bring about such a reversal.

One such case that is expected to be heard this fall is Knick v. Township of Scott, Pennsylvania. The case revolves around Mary Rose Knick, who challenged a local ordinance requiring her to open her property to the public during daylight hours because grave markers have been found there.

The issue in this case is whether property owners can take their cases directly to Federal courts or must first exhaust all of their legal options in State courts.

Kavanaugh’s vote might reduce regulatory powers.

It’s no secret that he’s not a fan of what he believes is government overreach. One agency he believes has overreached its authority is the Environmental Protection Agency.

If brought before the Court, he could be expected to permanently suspend the Waters of the United States rule of 2015, which placed thousands of acres of wetlands and bodies of water under government jurisdiction.

This rule has, in many areas, prevented the construction of new housing developments and impaired property owners’ rights to make certain improvements on their own land.

Could it become a contest between environmentalists and developers?

Possibly. Developers would be glad to see clearer regulations, fewer required permits, and fewer fees. The result would likely be new communities on land where building is now disallowed.

Environmentalists will likely protest that action – citing the Endangered Species Act and wanting to keep wetlands safe for wildlife.

This year, that issue will come before the Supreme Court in Weyerhaeuser Company v. United States Fish and Wildlife Service. The case revolves around the dusky gopher frog, and private land in Louisiana that some believe is critical habitat for that frog.

While Kavanaugh is not anti-environment, his presence on the Supreme Court could mean a weakening of environmental protections.

Consumer protections could be affected.

Judge Kavanaugh has let it be known that he believes the structure of the Consumer Financial Protection Bureau is unconstitutional. This is the agency that was created by Congress and signed into law by Barack Obama in the midst of the financial crisis.

Kavanaugh believes this bureau wields too much power, especially in light of a director who can only be fired for neglect of duty or inappropriate conduct. Some worry that a lessening of that power could make it more difficult for consumers to bring suit against lenders.

Just as important as the decisions made: Which cases will be chosen to come before the Supreme Court?

You or I can’t just get frustrated and demand that our case be heard by the Supreme Court. It doesn’t work that way.

Cases are presented and the judges decide which they will hear. It takes four of the nine judges to say yes. In other words, the interests and concerns of each judge will ultimately determine the issues that come before the court.

What interests Judge Brett Kavanaugh?

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