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Property Law

by Tim O'Hearn

A number of years ago I worked for a real estate brokerage. Before I was downsized they decided that my position would require a real estate license; so they said they would pay for my course to get it. (They let me go about halfway through the course, but that was their loss because they lost all that tuition cost.) While I was taking that course, however, I learned some real estate terms, some of which appear in or apply to the Bible.

Estoppel

This is a little-known but very important doctrine in property law. I benefitted from it a number of years ago when the house I rent was sold. Part of the sale involved a Certificate of Estoppel, whereby the new owner was estopped (prohibited) from raising my rent or terminating my lease until the then-current lease expired. Basically the doctrine says, “A person is prevented from asserting rights or facts that are inconsistent with a previous position or representation made by act, conduct, or silence.” (John W. Reilly, The Language of Real Estate, Fifth edition, p. 148) A classic example is that if my neighbor states where the property line is and I build a fence there, then a laterMr. Trump was not the first to use eminent domain to take land for his own private use. survey shows that the property line is actually three feet inside the fence, my neighbor and his successors are estopped from claiming a right to that three-foot strip of land. The Law of Moses frequently prohibits moving landmarks, just to prevent fraudulent estoppel cases.

There are two more notable examples of this principle in the Law, however. One is the case of the man who improperly claims that his wife was not a virgin on their wedding night. When he is proven wrong, he is estopped from ever divorcing her. (Deut 22:13-19)

The more familiar case is that of a servant who has completed his term of service. He may choose not to leave his master’s service.

Now these are the judgments which thou shalt set before them. If thou buy an Hebrew servant, six years he shall serve: and in the seventh he shall go out free for nothing. If he came in by himself, he shall go out by himself: if he were married, then his wife shall go out with him. If his master have given him a wife, and she have born him sons or daughters; the wife and her children shall be her master's, and he shall go out by himself. And if the servant shall plainly say, I love my master, my wife, and my children; I will not go out free: Then his master shall bring him unto the judges; he shall also bring him to the door, or unto the door post; and his master shall bore his ear through with an aul; and he shall serve him for ever. (Ex 21:1-6)

In this case, the master is estopped from freeing the servant. The servant is likewise estopped from ever demanding his freedom on the grounds that his six years have been served. (Does this example mean that a woman who gets her ears pierced while married may never divorce or be divorced? Or would that be only if the husband did the piercing?)

While the Law of Moses never specifically states the principle of estoppel, it is clearly included in the law. Whether the property be real estate or human, case law establishes the principle.

Eminent Domain

More people are probably familiar with eminent domain than with estoppel. It is “the right of government, public corporations, public utilities and public service corporations to take private property for a necessary public use, with just compensation paid to the owner.” (Ibid, p. 137) An example would be the right of a government to take property in order to put in a highway, as long as the owner is paid a reasonable compensation for the land. There is some debate over whether a state can take the land through eminent domain and turn it over to a private developer under the theory that the developed property serves the public good through increased tax revenue. For instance, Donald Trump attempted to use eminent domain to obtain land for his casinos. The most infamous case involved a failed attempt to use the principle to obtain additional parking space for Trump Plaza in Atlantic City. The problem is that even if he had succeeded, it was only a few years before Trump Plaza closed, so the city would not have realized the supposed public benefit. But Mr. Trump was not the first to use eminent domain to try to take another’s land for his own private use. We can find the same thing in 1 Kings 21.

A man named Naboth owned a vineyard next to the king’s palace. King Ahab offered just compensation. “And Ahab spake unto Naboth, saying, Give me thy vineyard, that I may have it for a garden of herbs, because it is near unto my house: and I will give thee for it a better vineyard than it; or, if it seem good to thee, I will give thee the worth of it in money.” Naboth refused, because it would violate the Law, in that he could not give up his family inheritance. While Ahab sulked, his wife Isabella plotted. She bought false witnesses that testified that Naboth was guilty of blasphemy. This resulted in Naboth’s execution. After his death, Ahab claimed the right of eminent domain, just to obtain a new herb garden for his own use. As a result, God decreed that the dogs would lick Ahab’s blood in that very plot of land. And so it came to pass.

This is not to say whether men like Mr. Trump should meet the same fate as Ahab. It merely points out that the abuse of eminent domain is much older than Atlantic City.

Earnest

Paul was apparently familiar with the real estate world, because the term “earnest” is the only of these that actually appears in the Bible, in its proper meaning. An earnest is “the cash deposit (including initial and additional deposits) paid by the prospective buyer of real property as evidence of good-faith intention to complete the transaction.” (Ibid, p. 132) It is usually placed in an interest-bearing escrow account until the transaction is completed, at which time it is counted as part of the down payment. In the three passages where the word appears, it is sometimes translated “pledge,” although the original word carries with it the full real estate meaning of earnest.

Now he which stablisheth us with you in Christ, and hath anointed us, is God; Who hath also sealed us, and given the earnest of the Spirit in our hearts. (2 Cor 1:21-22)
For we know that if our earthly house of this tabernacle were dissolved, we have a building of God, an house not made with hands, eternal in the heavens. For in this we groan, earnestly desiring to be clothed upon with our house which is from heaven: If so be that being clothed we shall not be found naked. For we that are in this tabernacle do groan, being burdened: not for that we would be unclothed, but clothed upon, that mortality might be swallowed up of life. Now he that hath wrought us for the selfsame thing is God, who also hath given unto us the earnest of the Spirit. Therefore we are always confident, knowing that, whilst we are at home in the body, we are absent from the Lord: (For we walk by faith, not by sight:) We are confident, I say, and willing rather to be absent from the body, and to be present with the Lord. (2 Cor 5:1-8)

Paul says to the Corinthians that we have a real estate transaction in the works. We are selling this earthly tent, and are purchasing a house in heaven. Unlike a normal transaction, however, where the buyer provides the earnest money that will eventually go to the seller, in this case it is the seller, God, who provides His spirit as the earnest. God is so desirous that we complete the purchase of our heavenly home that he has paid the earnest, and indeed (in Christ) the full purchase price. Even though the price has been paid, we have not closed on the deal. We still live in this tent. So God has given the Spirit as earnest.

He states the transaction here, but is even more clear about the earnest when he writes the church at Ephesus. The sentence is a long one, and is speaking about Jesus. The relevant portion is this.

Having made known unto us the mystery of his will, according to his good pleasure which he hath purposed in himself: That in the dispensation of the fulness of times he might gather together in one all things in Christ, both which are in heaven, and which are on earth; even in him: In whom also we have obtained an inheritance, being predestinated according to the purpose of him who worketh all things after the counsel of his own will: That we should be to the praise of his glory, who first trusted in Christ. In whom ye also trusted, after that ye heard the word of truth, the gospel of your salvation: in whom also after that ye believed, ye were sealed with that holy SpiritThe term “earnest” is the only of these that appears in the Bible, in its proper meaning. of promise, Which is the earnest of our inheritance until the redemption of the purchased possession, unto the praise of his glory. (Eph 1:9-14)

Paul tells the Ephesians they have an inheritance. That inheritance is probably the house that he mentioned to the Corinthians. It is an inheritance, not simply a purchase. Still, it is a purchased possession which has yet to be redeemed. (That brings in another legal term. Redemption is “the right of a mortgagor who has defaulted on a mortgage note to redeem or get back his or her title to the property by paying off the entire mortgage note before the foreclosure sale.” (Ibid, p. 337.) In other words, we have a home waiting for us. We defaulted on the mortgage by sinning. The Holy Spirit is the earnest in our hearts, guaranteeing the good faith agreement that God will provide us with our home. The purchase has actually been made, but because of our default a redemption price had to be paid. That redemption price is the blood of Jesus, but it is not considered paid until we move out of this house and into the next.

Real estate law can be confusing, and contorted sometimes. The simple fact is that somebody else provided not only the purchase price, but has paid us the earnest that is actually due to God. We have a home waiting. And the good news is that we don’t have to pay anything for it. The transaction has been made. We inherit as beneficiaries of that purchase. Nothing complicated about that.