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Home > School of Law > Student > Law Review > Vol. 47 > Iss. 2 (2025)

 

Western New England Law Review

Abstract

The unanimous 2023 Tyler v Hennepin County Supreme Court decision holding that government retention of surplus proceeds from tax sales is an unconstitutional taking presents an opportunity for states to examine their tax foreclosure proceedings and make changes. These changes should comport both with the constitutional right to due process and the strong public policy interest in housing stability. Some scholars conclude that additional steps need to be added to ensure due process, while others advocate for a single step with robust protections. In this article, I argue that now is the time for states to take bold action and abolish tax foreclosures of primary residences.

Advocates from across the political spectrum have overlapping interests when it comes to protecting the rights of homeowners from the threat of tax foreclosures. Groups advocating for strong individual rights such as the Cato Institute and progressive groups like the ACLU were united as amici curiae in support of the petitioner in Tyler. Tax foreclosures deprive families of their greatest financial asset and the stability of a home. Marginalized communities and the vulnerable elderly population are most at risk of these devastating consequences. The mitigating effect of Tyler remains to be seen and is far from certain. Scholars have just begun to probe the meaning and impact of Tyler. While the interests of local government in raising funds to provide services need to be considered, those interests should not overshadow the importance of protecting the home.

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