Rethinking Succession

I was one of the students working on the succession project. We worked diligently and by the end of the week I had completed one succession packet and assembled much of the information on another one. The task was made more difficult by the fact that over time the files are worked on by a number of volunteers and the first task required is to figure out where the last volunteer had left the case. Our whole group worked on about forty cases during the week. Since we only did part of each case this probably is the equivalent of about twenty full cases. Most of us felt good about the work that we had done. Because of our work some people will be well on the way to getting their motion of succession to court.

But as I reflect on what we did, I feel that it was no more than a finger in the dyke. (Perhaps this is a poor analogy in New Orleans.)

The Pro Bono Project has over 27,000 files of cases requiring succession. Each week more come in. Only recently have they begun to see weeks where the cases completed exceed the number of new cases. (Net reduction of cases.) If there are 27,000 cases waiting to be completed and filed with the court, one can presume that because of the complexity of the documents required there are many more cases where people have given up and not sought help. Remember without succession to the current “owner”, the current "owner" cannot get Road Home Funds or even legally cash the insurance check if it is made out to someone else (usually a parent).

Let us consider the 27,000 cases and for this too real hypothetical, let us presume that there are no additional cases and that 50 cases are completed each week. This means that it will take 540 weeks or ten years to complete these cases. Ten years is a long time. It is long enough for another hurricane. I do not know how long the Road Home Program will be accepting applications. But I do know that New Orleans will not tolerate empty unrepaired buildings for ten years! In the last few months the city has begun to bulldoze those Ward 9 houses that have not yet had the mold removed. On one level it is a race between the homeowner repairing the property and the city removing the house. Thus what our class did will help a few people, while the system crumbles. I believe that what is required is that we consider systemic change to deal with the issue.

Under the Road Home program the home owner can either repair the house with Federal Funds, trade them home in for funds to purchase another home in Louisiana or sell the current damaged home to the State for 60% of the pre-Katrina value. Either route requires a deed which in at least 27,000 cases will require succession.

Obviously succession is a serious bottleneck. The Road Home program only anticipates that there are 123,000 eligible houses. Based on the number of applications that they have already received, this seems like an undercounting. If the files the Pro Bono Project is working on are the total homeowners with “clouded” titles then at least one out of five of the eligible homes requires action to produce a clear deed. The figure also is probably much higher. The Louisiana Authority’s report on the Road Home Housing Programs Action Plan Amendment for Disaster Recover Funds refers to the problem of “blight caused by abandoned homes” and “clouded land titles.”

I believe that in this time of emergency new ways of clearing title must be developed. When a property is inherited intestate in Louisiana, rights to the property must be renounced by all who are eligible to inherit in order to give the person seeking “ownership” of the house clear title. While usually a family knows who the house belongs to the other members of the family need to surrender title. What if there are children by a previous marriage that under Louisiana law must be found and renounce title? The burden of locating other claimants to the property is on the individual wanting the succession and title to the property. This takes time and is cumbersome. Too much time is taken getting people to renounce title and finding other people who can prove the death of relatives. Often we are talking about getting title for people who have been living in the house for years and paying property tax for years and have been receiving the reduced homeowners tax rate. Their relationship with the tax office is as an owner of the property.

What if we shifted the burden for succession? A Temporary “Order of Possession” for “owner-occupied” property (not for other personal property) could be given to anyone who had a homeowners tax allowance prior to Katrina. Following Katrina, as an emergency measure, the tax assessment is already permitted as a substitute for the property assessment normally required as part of the information for succession. The burden to challenge the succession would be shifted to anyone else who claimed the property. Based on the “temporary deed” the Road Home program and other similar programs would be able to pay for the repair of the house. If another person claimed the property, the court in the succession challenge would treat the Road Home payment as a lien which would transfer to the new owner. (A person not occupying the property before Katrina would not be entitled to Road Home money). During the five years of the temporary “Order of Possession” the “owner-occupant” would not be allowed to sell the property without a normal motion of succession and a judicial Order of Possession. If no challenge is made to the temporary Order of Possession in five years then a permanent order could be issued.

One difficulty with this proposal is that it will be hard to get people to remember to go to claim their unclouded title five years after receiving the temporary order of possession. The easiest method would be for the city to automatically issue the deeds five years after the “temporary orders of possession.”

This would be a temporary program, covering only people who had a homeowner’s tax credit at the time that Katrina struck. If it became a permanent feature of the system, the city would be likely to require greater evidence of ownership than a utility bill before granting the exemption. This would lock out too many people from the benefits of the homeowner’s tax credit.

There will be those who for one reason or another did not apply for a homeowners tax credit. They will still have to use the traditional succession route. Those who have inherited their home following Katrina deaths will also have to use the traditional route. But if this possession by tax record could rapidly return 75% of those who filed for succession to their homes, the workload would become manageable. (This percentage is just speculative, and would have to be tested). Additionally some who have not applied for succession might find this requirement simple enough to manage. At a time that the people worst hit simply do not have the records that are asked of them, getting tax information is something that the New Orleans diaspora might be able to readily do.

While not everyone would be covered, one would hope that more rapidly renewing neighborhoods would achieve the critical mass that would restore them as communities.

This is not a polished proposal. However, it seems to me that we have to start thinking somewhere about structural change and this is a rather minimal change. Without such a program even with good volunteer efforts of the type our class provided, the majority of those with succession problems are at risk of seeing their houses raised before the succession problems can be resolved.