Eminent domain: An unlikely hero for underwater housing communities

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Eminent domain: An unlikely hero for underwater housing communities
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Knight in shining armor to the rescue?

COMMENTARY | The desperate fight against the long foreclosure crisis plaguing working-class neighborhoods across the country may have found its white knight in the form of eminent domain. This knight's armor is far from shining and filled with chinks, but nevertheless may function as a champion for underwater homeowners. Eminent domain is the legal doctrine that gives governments the right to take private property for public use to exercise functions of public character. Further, the U.S. Constitution requires that the people are fairly compensated when the government uses such power.

Cities desperate

Perturbed by the slow pace of the recovery, cities are taking matters into their own hands by using eminent domain to buy mortgages and reduce homeowner debt. In effect, a city would first offer to purchase underwater loans at an estimated fair market value. Once purchased, the city would then reduce the debt and allow the homeowner to refinance the loan, possibly pumping equity into a once underwater home. In the event that a city's purchase offer is declined, they would then turn to eminent domain to condemn and buy the loan.

Cities from New Jersey to Las Vegas are in the process of passing resolutions built around eminent domain. Recently, Richmond, Calif., gained notability as the first city to attempt to seize homes using eminent domain. Areas such as Newark, Seattle, and numerous cities across the west coast are contemplating using eminent domain as a solution for their drowning housing markets. What is unusual is that the property is not actually being taken, but rather the mortgage on the property is.

Wall Street's angst

The trend of using eminent domain to raise housing markets from the depths of underwater disaster is not without heavy opposition. Wall Street is viciously opposed to the idea. Big banks have declared themselves ready for an epic legal battle and have threatened to pinch-off all lines of mortgage lending to any area using eminent domain as a tool to override mortgages.

It remains to be seen whether the white knight of eminent domain will raise underwater housing communities or drown beneath their depths. Regardless of the outcome, the battle is an intriguing one to keep an eye on.

Roy Oppenheim is Florida's leading real estate and foreclosure defense attorney. He left Wall Street for Main Street and, in 1989, founded Oppenheim Law, Weston Title, and the South Florida Law Blog with his partner and wife, Ellen. His entrepreneurial spirit and passion for helping to defend homeowners led Roy to start "In the Trenches" where he speaks out for the people and their constitutional rights.

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