How Real Estate Attys Should Prep for Possible Chevron Shift

Trial lawyer and appellate advocate Lynn Calkins, who focuses much of her practice on federal regulatory litigation matters, was quoted in a Law360 interview on how the U.S. Supreme Court's upcoming ruling related to Chevron deference could affect real estate attorneys. She discussed how the decision at the federal level could impact local real estate, specifically multifamily developments and zoning matters. Ms. Calkins also advised attorneys in the industry to start discussions with clients ahead of the decision, and to look at business operations to prepare internally.

"Real estate is a little bit unique in that it's predominantly very localized, you have mostly contract issues and zoning issues, so it's really looking for where there is real estate impacted by a federal statute. There could be many, many different avenues that are not necessarily specific to real estate, but the impact is still on real estate," she said. "The most specific one likely to impact real estate directly is in the multifamily context because they're living under the Fair Housing Act, and that statue is very broad and ambiguous, and HUD in particular has had a great deal of latitude in setting guidance and bringing enforcement as to what they believe should be the law even though it's not congressionally written as such."

Ms. Calkins added that because the court is expected to establish a new standard for agency deference, companies should begin revisiting current policies and procedures and identify those that may no longer apply moving forward.

"If there's a standard that's changed and you don't have a lot of deference being given to agencies, companies and individuals have the opportunity to look at it through that new standard and say, 'we don't believe the agency's old interpretation is applicable anymore, it's not legally viable under the new framework the court set down,'" she explained. "In those situations where companies have been instituting policies or contractual provisions or otherwise proceeding down a business path because of the agency's current interpretation, they may want to relook at whether there's an opportunity to test whether that interpretation is indeed legally applicable under the new standard."

READ: How Real Estate Attys Should Prep for Possible Chevron Shift (Subscription Required)

Holland & Knight announced the formation of its Chevron Deference Working Team in advance of the U.S. Supreme Court's June 28, 2024, Loper decision, which overturned the Chevron deference doctrine and will lead to a period of regulatory changes and potential legal challenges for some time.