Dec 14, 2023 | ALI CLE, Eminent Domain, Land Use, The Practical Real Estate Lawyer

This article is part of the continuing series of interviews between, published in The Practical Lawyer, Rajiv S. Khanna, principal of The Law Offices of Rajiv Khanna, and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.

Rajiv: Let’s begin with an introduction of who you are, what you do, how you got here.

Robert: My name is Robert Thomas and I’m a lawyer with the Pacific Legal Foundation, a public interest law firm that represents people for free in court. But I also spend a lot of my time as a law professor. During the fall, I teach property law at the William and Mary Law School in Williamsburg, Virginia.

What is the trajectory of your legal career? Where did you think you were going to go and how did you end up where you are?

In a completely different place than I would have imagined if you’d asked me during law school. I attended the University of Hawaii Law School and got my JD there in the late 1980s. And, yes, attending the University of Hawaii Law School is about as pleasant as a law school can be. When I was going through law school, I imagined that I would be a courtroom lawyer practicing criminal law, but I had the good fortune, during the summer between my second and third years, to clerk for a private law firm in downtown Honolulu where one of the first cases I handled happened to be a property case. I was sure that property was not of interest to me before that, based upon, among other things, my grade in my Real Property class, but also because being a courtroom lawyer doing criminal law seemed really appealing. I had no idea that the practice of property law was so different than the study of it, especially your first-year basic property class. And I was just hooked. So the roadmap suddenly veered off in a 90-degree direction. A majority of my practice ended up being in property, eminent domain, inverse condemnation, land use law, and the related topics. Because I was practicing in a mid-to-small market where it is very tough to specialize in a particular area, I had to do a lot of other things. I was doing appeals, occasional criminal law, voting rights, and election law, but the main focus always remained property. I have a completely unplanned career that somehow seems to be working out pretty well.

What do you like about the practice of property law as opposed to other areas of law that you’ve been exposed to? What makes this special for you?

What’s really nice is when you’re dealing with the property law in the areas I deal with—the question or the relationship between property owners, their neighbors, and the government—there’s a lot of what I would call “running room,” a lot of room to be creative. Modern land-use law only really started coming around about 100 years ago. And while it’s a pretty substantial body of law, there still are a lot of unresolved questions where creative thinking, as well as the constitutional requirements you overlay on top of that, becomes necessary. And so that’s what I appreciate the most out of it. I had a partner early on in my career, a mentor, who told me that if you’re practicing in a place like Hawaii where land is probably the scarcest commodity, you’ll never be out of work. From a very practical matter, that really helped guide me. And he was absolutely right. Despite cycles in the economy in a place like Hawaii, very tied to the tourist economy, the one thing that we were never short of were cases and disputes involving property, land, how land is used, how those resources are allocated, how it interacts with environmental concerns, maybe population and antidevelopment concerns. And yet there are people who need to live in a place where the median home price is hovering just over a million dollars.

That’s a function, of course, of the physical size of the islands. But it’s also due to the difficulty in building a home. The impacts of the regulations that one has to go through in order to build something like a single-family home is something like $200,000, last I checked, which is pretty significant. And that is also accurate for a national practice in land use, as regulation of the private uses of property becomes more stringent.

So to answer your question, it just was an area that was metaphysically kind of fascinating. What does it mean to “own” something is something that I think it doesn‘t take a law degree to understand and yet, at the same time, the layers of what that means are just fascinating to me. To get to put that into practice and to do it every day just makes for very interesting work.

I take it that you are one of the very few at the bar who do not wake up screaming about the rule against perpetuities?

No. I found out as a law professor, when I asked my students who are all 2Ls or 3Ls, if they still study the rule against perpetuities. Surprisingly, a couple of them told me no. And I laughed and asked why not. And they said, “Well, our professor said it was an archaic thing, never used, you’ll never do a case.” One, I understand from some of them who recently took the latest bar exam, that in one jurisdiction at least it was a bar exam question, which is unbelievably cruel on the part of the bar examiners of that state. And then two, that same mentor that I mentioned earlier? He actually argued in the Hawaii Supreme Court a rule against perpetuities case. And he said, “They told me as a student this was completely useless information, but here I am actually arguing what that rule means.” And so I tell people to be careful if you don’t study something like that. It’s going to come up. But yes, thankfully I have avoided that question. I tell the students who are taking wills and trust that they should know it, because that’s where it actually comes into play.

CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.

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Join us for our upcoming program, Eminent Domain and Land Valuation Litigation 2024, either in-person or via live webcast on February 1-3! Hear more from Robert H. Thomas and more experts in the field. Learn more about this upcoming program here.