Saturday, June 12, 2010

Fennell on Possession Puzzles

Lee Anne Fennell (Chicago) has posted Possession Puzzles, delivered originally as the Wolf Family Lecture on the American Law of Real Property at Florida, to be published in POWELL ON REAL PROPERTY, Michael Allan Wolf, ed., 2010.  The abstract:

This brief essay was delivered in slightly different form as the Third in the Wolf Family Lecture Series on the American Law of Real Property at the University of Florida Levin College of Law on March 17, 2010. In it, I use the foreclosure crisis as a springboard for exploring some foundational questions about the relationship between property rights and secure possession. Although the development of property rights is generally viewed as advancing security of tenure, this is true only up to a point; the ability to subdivide and alienate interests in property ultimately encompasses alienation of certain aspects of the option to remain in possession. Cutting back on property’s alienability comes at a high price, however – reduced access to the very possession one might hope to maintain. After framing the basic tradeoff between access and security, I examine some ways that both values might be pursued simultaneously through the further refinement of property rights.

Matt Festa

June 12, 2010 in Financial Crisis, Housing, Mortgage Crisis, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 11, 2010

Barkehall-Thomas on Families Behaving Badly & the Granny Flat

Susan Barkehall-Thomas (Monash University) has posted Families Behaving Badly: What Happens When Grandma Gets Kicked Out of the Granny Flat?Australian Property Law Journal, Vol. 15, No. 2, p. 154, 2009.  The abstract:

There is a substantial body of case law dealing with disputes by members of an extended family over real property. In particular, the cases involve family arrangements where an older generation family member has contributed resources to property owned by a family member in the younger generation. For example, a father agrees with his adult daughter that he will pay for the costs of an extension to her family home and will live in the extension. Such an arrangement may have explicit terms for the care of the older family member and may involve explicit promises that the family member may live there for the duration of their life. Alternatively, the arrangement may be much less formal, with no promises or assurances regarding the older family member’s rights. When the family arrangement breaks down, the courts are frequently called upon to resolve the older family member’s entitlement.

This article will discuss these cases, with particular reference to the judicial methodology being applied to their resolution. It will demonstrate that the cases show a substantial variation in approach, both as to the appropriate course of action and to the appropriate remedy.

Matt Festa

June 11, 2010 in Caselaw, Comparative Land Use, Housing, Remedies, Scholarship, Servitudes | Permalink | Comments (0) | TrackBack (0)

Brescia on Progressive Lawyering & Affordable Housing

Ray Brescia (Albany) has posted Line in the Sand: Progressive Lawyering, 'Master Communities', and a Battle for Affordable Housing in New York CityAlbany Law Review, Vol. 73, No. 3, p. 715, 2010.  The abstract:

In the fall of 2006, a real estate group led by the father and son team of Jerry and Rob Speyer completed the largest residential real estate deal in U.S. history. For $5.4 billion, this team purchased the twin housing developments of Stuyvesant Town and Peter Cooper Village, located on the East Side of Manhattan. As part of their business plan, the new landlords sought to displace thousands of rent-regulated tenants so that market rents could be charged in the units vacated by outgoing tenants. Led by a crusading elected official, who just happened to be a resident of the complexes, the members of the complexes’ tenant association, supported by a host of lawyers from different sectors of the bar, pursued a range of legal avenues to resist the landlords’ efforts to convert thousands of units from affordable housing into luxury, market-rate housing.

In many ways, the purchase of the properties at the height of the real estate market, and the subsequent campaign to pursue a high rate of return on the investment to satisfy the debt burden on the properties, is another example of the distortions created by the era of easy credit. Much of the attention on the financial crisis focuses on the impact of the rise and collapse of an overheated home mortgage market on the broader financial system. What occurred in Stuyvesant Town and Peter Cooper Village is a symptom of that broader phenomenon, but one that occurred in the rental market, not the home mortgage market. It is a tale of irrational exuberance and aggressive speculation. The ultimate demise of the landlords’ efforts also tells another story: one of a tenant association; an elected official; and a loose network of attorneys who, together, fought back the attempts of the landlords to displace thousands of rent regulated tenants, not with bulldozers, but trumped up legal claims and an aggressive business plan.

The landlords’ efforts were ultimately halted by a recent decision of New York’s Court of Appeals in successful impact litigation filed by a class of tenants in the complexes, Roberts v. Tishman Speyer Properties, L.P., which is highlighted in detail in this article. But this legal victory, as important as it is for those tenants affected by it, tells only one part of the story. Progressive lawyers, in support of grassroots efforts, waged a campaign of hand-to-hand combat to preserve the affordability of the complexes for the tenants who live there. A review of these efforts helps to place the work of these attorneys within an emerging body of scholarship that highlights the positive and transformative power of legal advocacy to promote progressive social change. Within this body of scholarship there is a renewed yet sober appreciation for the value and ability of the law and legal advocacy to promote progressive social change. This appreciation emphasizes tactical flexibility, but also responsiveness and accountability to community interests and needs. This article analyzes the work of the attorneys who helped to orchestrate the legal campaign to preserve the affordability of Stuyvesant Town and Peter Cooper Village to determine whether their actions were consistent with this approach to progressive lawyer and to gain what insights about progressive lawyering their efforts might reveal.

Matt Festa

June 11, 2010 in Affordable Housing, Caselaw, Landlord-Tenant, New York, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 9, 2010

Livable Cities Competition...

Have you been looking for an opportunity to convert that great law review idea into a major new initiative to make your community a better place to live?  Maybe its a novel regulatory reform and sustainable legal initiative that can improve the sense of place and quality of life in your locale.

If so, you might check out the new Philips Livable Cities Award competition.  Here are some details:

Philips is looking for individuals, community or non-governmental organizations and businesses who have ideas - ideas for ‘simple solutions’ that will improve people’s health and well-being in a city.

. With three different award categories, it seems like a great land use regulatory idea centered on a sustainable quality of life is just waiting to win, eh?

--Chad Emerson, Faulkner U.

June 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 7, 2010

Freegans and squatters

The New York Times Magazine had an interesting article this weekend about squatters in Buffalo.  The larger issue concerned the freegan movement - "Above all, freegans are dedicated to salvaging what others waste and — when possible — living without the use of currency."  The focus of the article was on their occupation and renovation of a Buffalo mansion.  Property folks will love the discussion of what the concept of "private property" meant to the freegans.  As much as they disliked the idea of being property owners, with the ability to summon law enforcement to protect their property rights, they struggled with the difficulty of managing the upkeep of the mansion as one large, unowned commons.  Ultimately, one of the freegans used the legal system to obtain legal ownership of the house, with all of the benefits - and headaches - that ownership entails.

Ngai Pindell, UNLV

June 7, 2010 in Property, Property Rights | Permalink | Comments (0) | TrackBack (0)

Sunday, June 6, 2010

Speaking of the Mid Year Property Section Meeting...

In terms of academy meetings, I normally limit my travels to the annual SEALS conference since a) I travel to many other events presenting on smart growth issues and b) Betsy and I have three young boys (all 8 years and under).

Add in the fact that we're adopting a baby girl from Ethiopia (hopefully the adoption will be complete later this year) and, well, travel gets challenging.

But, when I saw this year's AALS Property Section meeting focus on the foreclosure crisis and related issues, in the words of Renee Zelwegger, the event "had me at hello".

This is primarily because I'm working on one article related to the topic and recently published another with the William & Mary Business Law Review (you can find the SSRN version here).

The connection between our sprawling development patterns of the last 50 years and numerous social ills--ranging from poor health to poor fiscal policy--makes this topic one of the most anticipated in a long time.

I hope to see you there.

June 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Calling All LUP Blog Readers...

Are you attending the AALS Property Section meeting later this week in NYC?

If so, drop me a line at  Our own Matt Festa is presenting a paper at the event so that alone is worth the pilgrimage to the place that defined Jane Jacobs.

There's even very loose talk of a Yankees game fitting into the schedule.

In any event, if you follow the Land Use Prof blog, we'd love to meet you and get your feedback on how things are going so far. 

See in you the Big Apple!

--Chad Emerson, Faulkner U.

June 6, 2010 | Permalink | Comments (1) | TrackBack (0)