Redistributive Takings Under a Modern Midkiff

In cities throughout the United States, residential property markets have grown concentrated. Corporate real estate companies, also known as institutional investors, have swallowed up an inordinate percentage of homes for sale, effectively boxing out individual Americans who desire to own a home. Property ownership concentration, however, is not a new problem in the United States. In fact, Hawaii faced this precise problem after achieving statehood: nearly half of all state land was owned by a mere seventy-two individuals.

The Hawaiian legislature identified this defective market and passed the Land Reform Act of 1967 to correct it. The Act allowed the government to utilize its eminent domain power to condemn certain property owned by that small group of property owners. In effect, the Act allowed for a forced transfer of fee simple ownership from the owner to the tenants on that land. Because the Act involved a forced transfer of private property from one private citizen to another, some landowners sought to invalidate the Act on Fifth Amendment grounds in Hawaii Housing Authority v. Midkiff.

In a unanimous decision, the Supreme Court validated the Act’s takings scheme, affirming the constitutionality of its forced transfer of fee simple ownership. Based on Midkiff and subsequent Supreme Court takings cases, this Note posits that states experiencing concentrated homeownership markets as a result of institutional investors’ market presence may consider enacting legislation modeled off Hawaii’s Act to dilute the market and provide individual Americans a feasible path to homeownership once again.

* J.D. Candidate, 2024, University of Illinois College of Law; B.A., 2018, University of Michigan. Thank you to my fiancée Giana for her support and for keeping me grounded. Thank you to Professor Jacob Sherkow for inspiring this Note topic and guiding me throughout the process. Last, thank you to the editors, members, and staff of the University of Illinois Law Review for their help with this Note and the entire 2024 Volume. The ideas within this piece of academic writing may not precisely convey my individual convictions or political inclinations.

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