Monday, September 26, 2016
(From left, Ed Mullins, commissioner for the South Carolina delegation of the Uniform Law Commission, Thomas Mitchell, Gov. Nikki Haley, and South Carolina Rep. James E. Smith, Jr., primary sponsor of the UPHPA in the South Carolina House of Representatives, for the ceremonial signing of the legislation)
Here at the Property Law Prof Blog we love to highlight the great work of our fellow property law scholars. Today's post focuses on Thomas Mitchell (Texas A&M) and his work in the area of heirship property.
Thomas served as the reporter and head of a Uniform Law Commission (ULC) project of some years ago to create a Uniform Partition of Heirship Property Act (UPHPA). Prior to that he served on the American Bar Association’s Property Preservation Task Force that developed the proposal requesting the ULC to form a committee to draft an act addressing partition of property. The goal of the UPHPA is to preserve family wealth (in the form of real property) passed along from generation to generation. While wealthy families often engage in sophisticated estate planning to deal with issues of generational wealth transfer, those with smaller estates often use a basic will or die intestate.
Thomas' work has particularly focused on partition issues in the context of lower- and middle-income families where often the majority of the value of the estate is comprised of real property. Under state law, when an owner of real property dies intestate the property is transferred to his heirs as tenants-in-common. These new owners often find themselves in a vulnerable position due to the fact that any one of them can force a partition of the property. Real estate speculators often seize upon this opportunity by acquiring a small share of the property from one of the heirs in order to then be able to file a partition action and force a sale. In doing so, the investor can acquire the entire parcel for a price well below its fair market value. This often has the effect of depleting the family’s inherited wealth in the process.
The UPHPA seeks to address this issue by providing a series of simple due process protections: notice, appraisal, right of first refusal, and if the other co-tenants choose not to exercise their right and a sale is required, a commercially reasonable sale supervised by the court to ensure all parties receive their fair share of the proceeds. At this point eight states have enacted the UPHPA into law: Alabama, Arkansas, Connecticut, Georgia, Hawaii, Montana, Nevada, and (most recently) South Carolina. It is impressive to note that 4 of the 8 states that have enacted it are in the South, the region where it’s generally accepted that partition abuses have been the greatest as well as the region most people believed would be most resistant to enacting the legislation. Pictured above is Thomas was Governor Nikki Haley at the bill signing last week. The bill has been officially renamed the Clementa C. Pinckney Uniform Partition of Heirs’ Property Act in honor of the late pastor and Senator Clementa Pinckney, who was killed in the 2015 Emanuel African Methodist Episcopal Church shooting in Charleston.
At this time, Thomas and his supporters believe they are likely to get introductions in 2017 in the New Mexico and West Virginia legislatures and are the cusp of securing commitments to introduce it in Mississippi and Texas as well.
In an effort to get the UPHPA enacted into law, Thomas has testified before many state legislatures, published numerous law review and other articles on the topic (check out his Alabama Law Review article titled Reforming Property Law to Address Devastating Land Loss discussing the issue) make presentations to legal organizations and community groups, and more. He is just the second African-American ever to serve as a reporter for the ULC in its 124-year history, a period of time in which the ULC has drafted more than 350 uniform acts.
Great work, Thomas!
Thursday, September 22, 2016
Although my body is in desperate need of some reasoning skills, my brain is several hundred miles away, thinking about a criminal trial in Portland, Oregon. In that Oregon courtroom, seven people face the consequences of their forty-day occupation of the Malheur Wildlife Refuge. Their primary complaint was that the federal government lacks the authority to own or manage the nation’s public lands, and that those lands should instead be transferred to local governments or private interests. It is not entirely inappropriate for me to be thinking about the Malheur trial, as I am sitting in an inflatable kayak on Idaho’s Selway River in the Selway-Bitterroot Wilderness, trying to navigate a series of rocky rapids that are well beyond my limited paddling skills. But my thoughts are in Portland because the arguments of the Malheur militants threaten what I am now trying to experience, and I fear that we are collectively forgetting about the value of wild and lonely places, and thus unnecessarily risking the future of our public lands.
When he signed the Wild and Scenic Rivers Act in 1968, President Johnson noted that although we had been slow to learn how “to prize and protect God’s precious gifts,” we had finally recognized the value of wild and natural places, and ensured that “our own children and grandchildren will come to know and come to love the great forests and the wild rivers that we have protected and left to them.” The Selway is one of those places, one of eight river systems originally protected by the Wild and Scenic Rivers Act.
For a few moments, my brain returns from its Portland wanderings and allows me to focus on the place and experience that cradles me. At its September low-water clarity, I can pick out individual granitic crystals as I watch the cutthroat swim between the rocks twenty feet below my boat. The canyon walls are from two different worlds, with dry, open Ponderosa pine forests on the south-facing slopes opposite dense cedars and ferns on the north-facing—the desert and rainforest connected by waters they imperfectly share. We paddle through boulders with driftwood logs four feet in diameter balanced a dozen feet above the water’s surface, hinting of demons that must lurk these waters in other seasons. And in the interludes between the hoots and hollers of the rapids, we find ourselves quietly transfixed by our surroundings, unable to find any words except the occasional and reverential, “this is so cool.”
Although the rapids and deep pools, cliff walls and cedar trees, and hundreds of friendly trout demand my attention, I continue to return to that Portland court room. While the specific arguments presented there are not likely to succeed in the policy realm, they are but the extreme end of a real problem. Because although the Bundys and their followers do not represent Western values, nor the desires of an overwhelming majority of the people who regularly work on, recreate in, and know and love the public lands, there are a number of no less frightening proposals cloaked in more reasonable-looking raiment seeking the same ends. Idaho’s U.S. Representative Raul Labrador continues to push a bill—against the wishes of many of his constituents—that would transfer large portions of Idaho’s public lands to a cash-strapped and industry-captured legislature. The Republican Party’s platform calls for Congress to “immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to states.” And the state of Utah is spending millions of taxpayer dollars preparing a lawsuit to challenge the authority of the federal government to own and manage any of the public lands.
This is why, despite somewhat more pressing needs, and being surrounded by one of the Earth’s most pristine landscapes, I can’t get my brain out of Portland.
But still the river draws me in. Even if unknown to many, the Selway represents a quintessential Idaho—and public lands—experience. Although the backcountry airstrip that marked the beginning of the river stretch of our adventure already had three airplanes on the ground when we landed, and two of our pilots left immediately to return with a group of bear hunters from Norway, we were soon alone on the river and would see no other people for days.
We are eight good friends, both old and new, here to celebrate forty years of a good life. A couple of professors, five employee-owners of the local whitewater products company, and a Sacramento police officer happily ignoring our stories of youthful, and not so youthful, indiscretions, we all share a love of wild places even as we express it in different ways. Like any other group of men our age, we carry our skeletons—our bouts with depression and alcohol, our fears and inadequacies, and our hopes that the children we are raising and worlds we are creating turn out better than we did. So we are here in celebration, but also for healing, for temporary escape, and in search of memories of beauty to carry us through our ugly times. Each night as we sit around the campfire, alone in hundreds of miles of forest with our own private river, living an experience that will forever connect us and this place, I can feel the scars soften, and the residual angers and fears fade and flow down into the river, which carries them away.
Unfortunately, this one crucial thing gets lost in the chaos of the Bundys and Malheur, and Utah’s New Orleans lawyers polishing off discredited legal arguments—the power of the land. Their focus on federalism, State’s rights, obscure and perhaps misinterpreted Constitutional provisions, and willful ignorance of Supreme Court precedent takes us away from the qualities that most and best connect people to the public lands and wild rivers.
The public lands are not a mere legal construct, nor are they simply a resource to be extracted and commodified. At their best, they are personal, emotional, and subtly primeval, connecting us to a wildness and beauty that can quiet and calm us, and dissolve the scar tissue of ancient wounds—real and imagined, physical and emotional. The August crowd at Old Faithful in Yellowstone—or even the hundreds of more obscure public lands recreation sites across the West and country—speaks, with some irony, to a need for wild, natural, and lonely places. And although not all of us can fly a small plane into the Selway’s backcountry airstrips, or even visit Yellowstone, America’s public lands landscape extends throughout the interstices of Western life. Even the West’s largest cities are only short journeys from quiet mountain streams, lonely forests, or empty sagebrush prairies. For many people, these small spaces are a Yellowstone or Yosemite, places of refuge in a complicated life. And they are public spaces, inherently democratic, welcoming anyone seeking peace, solitude, adventure, beauty, or wisdom.
So it is this that is most troubling about Malheur, the Bundys, Utah’s legislature, and Representative Labrador. As Wallace Stegner argued, the West is the native home of hope. Much more than angry, scofflaw ranchers, industrial timber harvesting, or massive dams, the West is about wildness, loneliness, adventure, freedom to explore and be reborn, and space to reconnect with our own wildness. Our public lands and wild rivers can be healing, unifying spaces, both individually and collectively. They are not elitist spaces reserved for the few or the favored; they are spaces for everyone to find their own beauty.
Eventually, all adventures must end, and I do manage to focus enough on the water in front of me to safely arrive at our take out, and the fried chicken and cold beer that is waiting for us there. In the last slow miles on our final day, as we quietly paddle the deep pools and easy rapids, I find myself consistently turning to face upstream. I do so not just because I do not want this trip to end, but because I fear for what I’m leaving behind. In enacting the Wilderness Act, we chose, collectively, to secure forever “the benefits of an enduring resource of wilderness.” And with the Wild and Scenic Rivers Act, we determined that some rivers should remain always in their natural, free-flowing, and wild condition.
Just as we once made that collective choice to protect the wild and natural, and to preserve beautiful landscapes of all types, we are also capable of making the alternative choice: to prefer use over solitude, dams over rapids, timber harvests over wildlife habitat, private benefits over public spaces, the tame over the wild.
But I believe we remain better than that. We remain capable of understanding beauty. More important, we remain capable of deserving beauty.
If we care about ensuring future generations the same wildness we have enjoyed, our path cannot be to ridicule the Bundys, to trust that Labrador’s bill will not get past the Senate or President, or to believe that the Supreme Court will honor precedent in any Utah lawsuit seeking control of the public lands. It was not legal argument that first gave us National Parks and Wilderness, protected free-flowing rivers, or reserved our forests for future generations. It was instead the stories of adventure, the paintings and photographs carried thousands of miles back to Congress, and the willingness to recognize the spiritual as well as the commercial. It was the green fire, and the power of wild rivers and wild landscapes. So our path must be to remember the value of wildness, to tell our stories, show our photos, and share our experiences, to be willing to talk about beauty and healing and grace, to share our special places with our neighbors, and to love our public lands. It is time for the prophets and evangelists to return, for the storytellers to again climb the trees and ride the whirlwind, and for us all to love and live the wild again.
Daniel Schaffzin (Memphis) has posted (B)Light at the End of the Tunnel? How a City's Need to Fight Vacant and Abandoned Properties Gave Rise to a Law School Clinic Like No Other (Washington University Journal of Law & Policy) on SSRN. Here's the abstract:
Over the course of the last two decades, intensified by the mortgage foreclosure crisis of the late 2000s, an epidemic of vacant and abandoned properties has inflicted devastation on people, neighborhoods, and cities across the United States. Though surely coincidental, the same time period has seen the emergence of experiential learning coursework, long operating at the periphery of legal education, as a centerpiece of the law school curriculum. In Memphis, the temporal convergence of these two phenomena has acted as a catalyst for the creation of a law school clinical course in which students learn and work under direct faculty supervision to abate the public nuisance presented by neglected properties. This Clinic is distinctive for a number of reasons, not the least of which is its singular client: the City of Memphis itself.
In this article, the University of Memphis School of Law’s Director of Experiential Learning, one of the two founders and codirectors of the Neighborhood Preservation Clinic, asserts the efficacy of the Clinic’s role in training future lawyers and providing zealous legal representation to the City in lawsuits against the owners of blighted properties. For context, the article first considers the rise and devastating effects of the nationwide vacant and abandoned property epidemic, the statutory authority available in Tennessee to pursue recourse against the owners of such property, and the broader blight-fighting strategy being employed by the City within which the decision to launch the Clinic was made. The article then examines the Clinic’s multilayered design and articulates the benefits that the Clinic has conferred upon its students, the Law School and the City of Memphis. The article concludes that the Neighborhood Preservation Clinic offers a government representation model for in-house law school clinics that stays true to traditional clinical pedagogy while honoring clinical legal education’s two-pillared historical mission to effectively prepare students for practice and to work in advancement of social justice and public interest outcomes.
Saturday, September 17, 2016
What if animals could own property? This Article presents a thought experiment of extending our anthropocentric property regime to animals. This exercise yields new insights into property law, including what appear to be biological underpinnings to what is widely assumed to be the distinctly human system of property. It also reveals that government and private actors alike have created a vast network of functional property rights for animals. The effects of a property rights regime for animals extends beyond property law: it would serve to improve the plight of animals, especially wildlife, by counting historic exclusion of animals from property allocations.
Property law may be a human codification of ingrained biological principles, common among species. Human governance of land, partially reflected by property law and observation of social attitudes to property, may, in fact, better theorized as animal in nature. Scientific findings suggesting that animals engage behavior mirroring that which establishes property ownership among humans. Species ranging from bees to jaguars undertake actions to acquire and protect land, which, when undertaken by people, forms the legal basis of property ownership.
Initial entitlements of American land excluded customary animal users, then afforded subsequent human landowners with the right to develop and exclude, which produced profoundly negative effects on species conservation. In response, a variety of governance strategies have emerged to protect wildlife, most federal statutes weakening property rights. In fact, law has already partially accommodated the idea of animals as property owners. Examining a variety of Constitutional, statutory, and common law doctrines suggests that animals already hold a variety of functional property rights, including ownership of hundreds of millions acres of land.
This Article is the first to analyze a property-rights approach to animal welfare and species conservation. Benefits of this approach, relative to existing efforts to imbue animals with human rights, include its bipartisan nature and foreseeable endpoint. Animal property rights would not require a massive shift in societal norms or uncompensated property redistributions. Indeed, this approach would likely improve animal welfare while also strengthening existing property rights, lessening the need for statutory controls on land uses, and updating law to harmonize with prevailing norms regarding animals’ place in society.
Jess R. Phelps (USDA) posted Reevaluating he Role of Acquisition-Based Strategies in the Greater Historic Preservation Movement (Virginia Environmental Law Journal) on SSRN. Here's the abstract:
Historic preservation and land conservation advocates have traditionally had similar goals, organizational structures, and even somewhat comingled histories when it comes to their efforts to protect the built and natural environment. Despite these striking similarities, a meaningful gap in practice has developed as to how the disciplines approach their respective resource challenges. Land conservation groups largely default to acquisition-based strategies in order to ensure the perpetual protection of targeted conservation tracts – most commonly through the use of conservation easements. Historic preservation advocates, however, are much less likely to rely on acquisition – relying instead on regulatory controls, site-specific advocacy, and incentive payments. This Article explores the explanations for this divergence – institutional, structural, and financial. Ultimately, understanding the roots of how the land conservation and historic preservation movements have come to approach their work so differently can provide meaningful insight into both fields and provide a lens for exploring, in particular, the comparatively limited role that affirmative resource protection efforts play in modern preservation practice.
Tuesday, September 13, 2016
In the past several years the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets ranging from Twitter and Facebook to YouTube and virtual world accounts is nearly absolute. Indeed, by one account Americans check social media over 17 times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six and seven figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing everything from taxation, to bankruptcy, to privacy rights have not kept pace with our ever-changing virtual world. And nowhere is this truer than in the law of secured credit. Doubtlessly virtual property has come to represent significant wealth and importance, yet its value as a source of leveraged capital remains, in large part, untapped. This unrealized potential is not without good reason; the law — specifically Article 9 of the UCC and the law of property more broadly — suffers from a number of deficiencies and anomalies that make the use of virtual property in secured credit transactions not only overly complex and expensive, but almost entirely untenable. This Article shines light on these shortcomings, and, in doing so, advances a number of guiding principles and specific legislative recommendations, all geared toward a reformation of the law of secured credit in virtual property.
Sunday, September 11, 2016
Jonathan Zasloff (UCLA) has posted The Price of Equality: Fair Housing, Land Use, and Disparate Impact (Columbia Human Rights Law Review) on SSRN. Here's the abstract:
What happens when local government policies run head-on into federal civil rights laws? Nowhere does this question assume greater importance than with land use and fair housing, yet in the nearly half-century since the passage of the Fair Housing Act (FHA), courts and commentators have skirted the question. With the Supreme Court’s recent decision in Inclusive Communities Project v. Texas, the most significant fair housing decision in the nation’s history, they can no longer do so. This Article represents the first sustained effort to show how the FHA affects land use, the most important power that cities have under American localism. The Supreme Court held for the first time that the FHA allows disparate impact liability, and outlined when such disparate impact cases can be brought. But it left many crucial questions unanswered, and this Article attempts to fill the gap. It concludes that when cities restrict affordable and multifamily housing, which often has a disparate impact on people of color, zoning ordinances must withstand intermediate scrutiny in order to be sustained. Courts must balance local policies with demands for inclusion: sometimes those policies will triumph, but in many instances they will not, for they rest on weak empirical or legal foundations, or they can be addressed in less restrictive ways. The Article sets forth a series of the most common scenarios and justifications for exclusionary zoning, and seeks to show that such justifications have far less purchase than is commonly supposed. The FHA comes nowhere close to abolishing zoning, but it does insist that local zoning must no longer exclude racial minorities, and the Court’s decision makes clear how fair housing advocates can and should use the law to fight such exclusion. If localities no longer have the discretion to exclude people of color, then that is the price of equality.
Friday, September 9, 2016
A FREE monthly webinar featuring a panel of law professors,
addressing topics of interest to practitioners of real estate and trusts/estates
Members of DIRT are welcome to register and participate
Tuesday, September 13, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
Emerging Legal Issues in the Sharing Economy:
Regulating Short-Term Rentals
- Jamila Jefferson-Jones, Associate Professor, University of Missouri-Kansas City School of Law
- Stephen R. Miller, Associate Professor, University of Idaho College of Law
- Christopher Odinet, Horatio C. Thompson Endowed Assistant Professor, Southern University Law Center
Like network transportation companies and employment matching sites, sharing economy short-term rental (STR) companies are rapidly restructuring the American experience. That these sharing economy STR companies – which are typified by entities such as Airbnb and VBRO – have such impact and market share at a time during which much of their business model remains, at best under-regulated and at worst illegal, makes it one of the most important emerging areas in American law.
Our panelists will discuss recent cases and emerging issues that examine the tension inherent in regulating sharing economy STRs as cities and states grapple with issues such as: whether STRs cause gentrification and escalation of rents in highly-coveted neighborhoods; whether or how these companies should be subject to the payment of transient occupancy taxes, as well as impact fees and exactions associated with STRs; day limits on STR market use; use definitions that define STRs; licensing and permitting; forced information sharing; the application of anti-discrimination laws; takings and inverse condemnation litigation; rent control and subletting provisions in leases, as well as other litigation that will certainly arise and develop in the near future. Professors Miller and Jefferson-Jones are the authors of The State & Local Government Sharing Economy Manual: Strategies for Regulating and Managing On-Demand Services, an ABA publication forthcoming in 2017.
Register for this FREE webinar at http://ambar.org/ProfessorsCorner
Thursday, September 8, 2016
The Washington Post ran an interesting article on Monday about a North-South "artistic divide" in America, with some discussion as to its causes. Although I personally live in a bit of counter-culture Idaho that has adopted the slogan "Heart of the Arts," I was surprised to see the dark colors in the Northern Rockies. I wonder if fly tying counts?
Tuesday, September 6, 2016
Gregory Stein (Tennessee) has posted Chinese Real Estate Law and the Law and Development Theory: Comparing Law and Practice (Florida State Journal of Transnational Law & Policy) on SSRN. Here's the abstract:
China did not adopt a modern Property Rights Law until 2007, which means that most modern real estate development occurred before there was a comprehensive property law to govern it. Moreover, business conventions in China frequently diverge from published laws, and the rules that professionals follow do not always comply with legal requirements. This article addresses how real estate professionals in China contend with these legal inconsistencies and uncertainties. It also asks whether China is disproving the traditional law and development model, which holds that transparent property and contract laws are a prerequisite to robust economic development.
Part II introduces some of the common Western misconceptions about Chinese real estate law and business. Part III presents examples of how three specific Chinese business practices have come to differ in significant ways from Chinese real estate law. Part IV concludes by noting the ways in which China calls into question the widely accepted model of law and development.
Monday, September 5, 2016
Gregory Alexander (Cornell) has posted Five Easy Pieces: Recurrent Themes in American Property Law (University of Hawaii Law Review) on SSRN. Here's the abstract:
The title of my article, "Five Easy Pieces," may not resonate with those of you who are too young to remember Jack Nicholson as a budding young movie star cut out of the James Dean mold. For those who do remember, it is, of course, the title of one of Nicholson's early (and, to my mind, greatest) movies. Jack's five easy pieces were piano pieces, easy for him to perform, less so for others. There was a certain irony about the word "easy" in the title. The irony lay not only in the fact that just about everyone else consider those pieces difficult, but, more deeply, because those piano pieces were the only pieces of the life of Bobby Dupea, the character whom Jack portrayed, that were easy for him. Life as a whole, the big picture, was one great, almost impossible challenge for him.
My five easy pieces have their own ironic twist. They are rather different but equally challenging in their own ways that first-year law students here will readily recognize. My pieces, this piece, is really aimed at them. The pieces I will discuss are five recurrent themes in American property law, leit motifs, to continue the metaphor from the Nicholson movie, that run throughout American legal doctrines. These themes provide a way of structuring all of property law, adding coherence to what so often appears to law students as an unintelligible rag-tag collection of rules and doctrines that defy any attempt to construct an overarching framework for analysis. I have given five simple labels to these recurrent topics: "conceptualizing property," "categorizing property, " "historicizing property," "enforcing property," and "de-marginalizing property." We begin with how we conceptualize property.
Friday, September 2, 2016
This week was the 11th anniversary of Hurricane Katrina. Over the years, many have said that Detroit is experiencing a hurricane without water.
Like with Katrina, the property tax foreclosure crisis in Detroit has wiped out entire neighborhoods inhabited by poor and working-class black people. From 2011-15, the Wayne County treasurer foreclosed upon approximately one in four Detroit properties for nonpayment of property taxes.
In fact, Detroit has one of the highest number of property tax foreclosures any American city has had since the Great Depression. Most important, once foreclosed properties are vacated, they are often vandalized, burned down or stripped of all valuable materials, creating a flood of blighted properties that decimate communities by reducing property values, attracting crime and causing those who can to evacuate.
There is a debate about the origins of Detroit’s property tax foreclosure crisis.
Popular narratives have focused on a culture of lawlessness in which property owners have cheated the city by not paying their property taxes and then devising ways to avoid foreclosure.
Some have welcomed the record number of property tax foreclosures as a sign that Detroit, at long last, is establishing law and order. But, I recently co-authored a study titled “Stategraft” that demonstrates that Detroit’s unprecedented property tax foreclosure rate is indefensible because property tax assessments in Detroit are, in fact, illegal.
Michigan’s Constitution clearly decrees that a property’s assessed value cannot exceed 50% of its market value. In our study, we find that Detroit’s assessor is flagrantly violating this vital state constitutional provision. Consequently, contrary to popular narratives, it is the city that is stealing from Detroit property owners through illegal assessments and inflated property tax bills, and not the other way around. And while the city has reassessed properties during the last two years, those actions have not been enough to bring most assessments in line with the Michigan Constitution.
To investigate whether property tax assessments in Detroit are illegal, we use citywide property sales and assessment data for 2009-15. As required by Michigan case law and statute, we included only arm’s length transactions in our analysis, and we find that, in 2009, 65.5% of the properties sold violated the state constitutional assessment limit. In subsequent years the numbers were equally shocking: 2010 (84.7%), 2011 (54.6%), 2012 (71.4%), 2013 (78.2%), 2014 (83.2%), 2015 (64.7%).
The property tax assessments were not only above the legal limit, but they also exceeded it by a substantial sum. For instance, in 2010, assessments were, on average, 7.3 times higher than the legal limit. In 2015, assessments were, on average, 2.1 times higher than the legal limit.
In all years studied, the illegality was most pronounced for lower-valued properties. That is, the city is more likely to assess modest homes at illegal levels than it is more expensive homes, leaving the most vulnerable homeowners drowning in injustice.
Detroit’s mayor, Mike Duggan — a former prosecutor — acknowledged that “for years, homes across the city have been over assessed,” and tried to remedy this in 2014 and 2015 by implementing assessment decreases for most of the city, ranging from 5% to 20%.
Our study shows that illegal property tax assessments nevertheless persist for lower-valued properties despite these reductions. For example, in 2015, properties with the lowest values were, on average, assessed at 4.8 times the legal limit, while properties with the highest values were, on average, legally assessed.
Both before and after Duggan’s assessment reductions, those who can afford only modest properties have been subject to the most severe illegality and forced to endure the consequences of Detroit’s broken levees.
In July, the American Civil Liberties Union of Michigan, the NAACP Legal Defense Fund and the law firm of Covington & Burling filed a class action alleging that the unprecedented number of property tax foreclosures in Detroit is unlawful on several counts, including the fact that the property tax assessments systematically violate the state constitution and the Fair Housing Act. The findings of "Stategraft" strongly support this claim.
The end goal of the class action is to stop all property tax foreclosures that are based upon illegal assessments. As an interim measure, the legal team recently filed a motion for a preliminary injunction that would place a moratorium on property tax foreclosures of owner-occupied properties in Detroit and throughout Wayne County.
To be sure, by reducing city revenues, a moratorium would further wound a city that has been in economic decline for decades and is desperately trying to emerge from the shadow of the largest municipal bankruptcy in our nation’s history. But, just as we do not allow homeless people in desperate need to burglarize homes, we should not allow the City of Detroit to use unlawful assessments and inflated property tax bills to steal money from Detroit property owners. Additionally, the requested moratorium is narrowly tailored so that it protects only vulnerable homeowners and not investors.
Given the mortgage foreclosure crisis, water shutoffs and historic bankruptcy, the people of Detroit have already had to weather several devastating storms. Now that they are facing a hurricane without water, the federal government cannot leave Detroiters stranded.
Attorney General Loretta Lynch must ensure that the Housing and Civil Enforcement Section of the Department of Justice opens an official investigation, which will supplement the ongoing class action and begin to quell the tides of inequity.
Bernadette Atuahene is a visiting professor at the University of Chicago Law School and a research professor at the American Bar Foundation.
Thursday, September 1, 2016
A very belated first post from me – this map of the day is less striking than the Nature Conservancy – UW map of climate-induced migrations that Jerry posted earlier this week, but I’ve found it’s already proved a useful teaching tool.
This map, and the underlying recent work by Geoff Boeing and Paul Waddell, produced in connection with UC Berkeley’s Urban Analytics Lab, is a great way to get students engaged in differences in rental markets and housing affordability issues across the country.
All well worth a read, and this excellent short summary from Kelsey E. Thomas at Next City might be the best place to start students with the semester underway at most schools and the holiday weekend coming up.
Thanks to Steve for such an amazing long run with the blog – it’s been such a wonderful resource for so many people. And thanks to Chris, Sally, and Jerry for everything over the past few months. It’s a privilege to join you all!
Tuesday, August 30, 2016
The Nature Conservancy and the University of Washington put together a map depicting how animals might migrate in response to climate change. One interesting aspect is the limited migration capacity of amphibians in the West, due (I assume) to limited habitat availability.
This just in from Tom Gallanis (Iowa):
Call for Papers
Wealth Transfer Law in Comparative and International Perspective
Friday, September 8, 2017
The University of Iowa College of Law and The American College of Trust and Estate Counsel’s Legal Education Committee are organizing the 7th academic symposium financially supported by the ACTEC Foundation. The symposium, Wealth Transfer Law in Comparative and International Perspective will be held at the University of Iowa College of Law on Friday, September 8, 2017. The keynote address will be given by Professor Lionel Smith of McGill University and King’s College London.
Among the objectives of this symposium are:
(1) To bring together prominent and up-and-coming scholars for the discussion of important issues in wealth transfer law from a comparative and international perspective;
(2) To spur leading-edge research on wealth transfer law, looking beyond the borders of any one jurisdiction;
(3) To encourage U.S. professors of trusts and estates to incorporate comparative and international perspectives into their scholarship and teaching; and
(4) To promote collaborations and exchanges between U.S. and non-U.S. scholars.
Papers presented at the symposium will consist of papers selected from this Call for Papers and papers from invited speakers. The papers will be published in the Iowa Law Review.
If you would like to be considered to present a paper, please submit an abstract of your paper to Professor Thomas Gallanis by email (firstname.lastname@example.org) by November 1, 2016. The Iowa Law Review will notify individuals chosen to participate in the symposium no later than December 1, 2016. Symposium speakers will be required to submit a draft of their papers by August 1, 2017, so that the panel commentators will have sufficient time to prepare their commentary.
Symposium speakers will be reimbursed for their travel expenses (economy airfare, the cost of ground transportation, and up to two nights’ hotel for speakers within North America and up to three nights’ hotel for speakers from beyond North America). Speakers will be invited to dinner on the evenings of Thursday, September 7, and (for speakers staying Friday evening) Friday, September 8.
Breakfast and lunch will be provided to speakers and attendees on Friday, September 8, courtesy of the ACTEC Foundation.
Questions about the symposium or this call for papers should be directed to Professor Gallanis at the email address above.
Saturday, August 27, 2016
Manufactured housing is a major affordable housing resource for millions of people. Restrictive zoning barriers limit its availability, even though studies have discredited myths, such as objections to its safety and quality. A national statute, the National Manufactured Housing Construction and Safety Standards Act, authorizes building code standards that address all aspects of safety, durability and quality, and that preempt state and local codes that deal with this problem. The Act does not preempt restrictive zoning, and Congress should amend the law to cover zoning restrictions. Judicial control of zoning barriers to manufactured housing is unsatisfactory and requires statutory change. Courts accept unequal treatment that applies restrictive zoning only to manufactured housing, though some statutes prohibit discrimination. The cases uphold exclusions from residential districts if manufactured housing is allowed elsewhere. Some statutes prohibit exclusion by requiring manufactured housing as a permitted use in all residential districts, or allow a community to decide what residential districts must accept manufactured housing. Courts uphold aesthetic standards, such as roofing and siding requirements, and some statutes authorize them, though limitations are needed to protect manufactured housing from exclusionary treatment. Communities often require approval of manufactured housing as a conditional use, and approval as a conditional use is often denied. Courts have upheld conditional use denials, and statutory protective standards are needed that will prevent abuse of the conditional use requirement.
Monday, August 22, 2016
Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner of each oceanfront lot holds easement-like interests in adjacent state-owned land; and, the state holds similar interests in the oceanfront lot. For these two reasons, the legal relationship between the oceanfront owner and the state is more interdependent than it may seem at first. It is much more than the usual neighbor relationship.
Disputes over oceanfront property are often framed as cases of wrongful taking under the Fifth Amendment’s Just Compensation Clause. The Supreme Court has historically applied its standard takings test for determining whether or not a state is liable for the impact of its rules on a landowner’s rights. This Article is the first to examine the question of whether use of this standard test is optimal, or even logical, in cases between states and the owners of oceanfront land. Given the fact that climate change impacts such as sea-level rise are likely to increase rates of conflict along the legal coastline, the potential benefits of a test that takes into account the special relationship between these parties are significant. Support for an alternative test can be found in two sets of common law property rules, the upland rights and public trust doctrines, as well as in a mechanism that nineteenth-century courts used to resolve similar disputes.
This Article examines the varying and often-conflicting views of “affordable housing” of different social and economic groups. It asserts that attempts to deal with affordable housing issues must take into account the shelter, cultural, and economic needs of those populations, and also the effects of housing decisions on economic prosperity. The article focuses on affordable housing goals such as making available an ample supply of housing in different price ranges; attracting and retaining residents who contribute to the growth and economic prosperity of cities; ensuring that neighborhood housing remains available for existing residents, while preserving their cultural values; and providing adequate housing in high-cost cities for low- and moderate-income persons and the overlapping concern for “fair housing” for families of all races and backgrounds.
Thereafter, the Article examines the benefits and detriments of various means of providing more affordable housing, including fair-share mandates, rent control, and inclusionary zoning (including whether that leads to impermissible government takings of private property). It then briefly considers the merits and demerits of federal subsidy programs.
The Article briefly considers conceptual and practical problems in implementing the Supreme Court’s 2015 Inclusive Communities disparate impact holding, and HUD’s 2015 regulations on “Affirmatively Furthering Fair Housing.” Finally, it discusses how the concept of “affordable housing” conflates the separate issues of high housing prices and poverty, and how housing prices might be reduced through removal of regulatory barriers to new construction.
Throughout, the Article stresses that advancing affordable housing goals have both explicit and implicit costs, and that goals often are conflicting. To those ends, it employs economic and sociological as well as legal perspectives.
Wednesday, August 17, 2016
(Photo Credit: The Millennium Report)
As national news is just getting around to reporting, Baton Rouge and its surrounding areas recently experienced tremendous flooding. Large portions of southeast Louisiana were (and many remain) underwater. Our tax law friends over at the Surly SubGroup, specifically Phil Hackney (LSU), summarize the situation nicely:
The devastation stretches from around the Louisiana-Mississippi border all the way over to Lafayette -maybe 100 miles across. This story does a nice job explaining the weather phenomenon that caused this massive flood event. Neighborhoods that have never flooded before in our recorded history are under 4 -6 ft. of water, and some higher than that. Almost the entirety of certain cities are submerged. The last data I had for my area is that 20,000 were displaced and 10,000 in shelters. I expect that number to go up over the week. Even though it has stopped raining, the flood waters cannot drain because the rivers are too high and cannot take runnoff from tributaries.
For those who may find this helpful, this short post talks a little about the property law (specifically related to home mortgage obligations and homeowners’ insurance) that victims of natural disasters like the Louisiana flooding should keep in mind.
MORTGAGE LOAN OBLIGATIONS
After a disaster like the flooding in Louisiana it is important to get in touch with your bank or mortgage servicer to obtain relief. The reason for this is because even if your property is destroyed and/or you can no longer live in the home, the mortgage debt does not go away. It is still owed even if the improvements on the real estate are not longer habitable. If contacted, however, sometimes the mortgage company will give you more time to pay your monthly note and even dispense with late fees or penalties. Also, if the home has been lost due to substantial or total destruction, you’ll want to talk to your mortgage servicer ASAP to prevent or postpone foreclosure on the property. For private loans (i.e., not government-backed) it will be up to the lender and you to work out those details. Be aware that even if the lender gives you a forbearance for a period of time, you will still have to make up those payments later.
For those loans that are FHA-backed, borrowers are sometimes eligible for resources that allow them to remain in the home. The FHA has a disaster relief policy pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act where, if (1) you or your family live in a federally-declared disaster area; (2) you are a household member of someone who is deceased, missing, or hurt because of the disaster; or (3) your ability to pay your mortgage is significantly impacted by the disaster, then your lender cannot foreclose on its mortgage for a 90-day period. The FHA also strongly advises its participating lenders to work with mortgagees who are affected by natural disasters (for example, by taking a deed in lieu of foreclosure if appropriate or allowing only partial payment for a period of time). This is why it’s so important that homeowners in these flooded areas contact their mortgage servicers and let them know that they qualify for FHA Disaster Relief. For additional help in this process, HUD has a counseling hotline to call at 1-800-569-4287 or you can contact HUD's National Servicing Center.
With regard to property insurance, dealing with your insurer can be a long and complicated process after a natural disaster. The important part is knowing what your declaration and your policy states, and whether flood insurance is included (i.e., for damage caused from rising waters). A general homeowner’s policy only covers damage caused by wind, rain, hail etc. Flood damage is insured separately. The exclusions portion of the policy will help in making this determination.
When it comes to actually getting money for lost or damaged property, different insurance policies take different approaches. You can either obtain the replacement cost value of the property (which means the insurance company will give you funds necessary to substitute the damaged or lost property with comparable property) or actual cash value (which is where you receive the cash value of the property that was lost or damaged, minus depreciation over time). The insurance policy will reveal to which you are entitled.
In the case of personal property losses specifically, this is generally referred to as the insurance of “contents” of the home. Documenting these losses are particularly important (so don’t start throwing things away too quickly). Keeping receipts are also critical to submitting a successful claim.
Another important aspect of property insurance is the fact that you are not the only person insured. Your mortgage bank is also listed as an insured on your policy, which means that when the insurance company send the check the bank will also be listed as a payee. Usually your residential mortgage contract requires that you send the check to the bank and then, through an escrow and release process, the funds will be distributed to you to pay contractors to repair the home in tranches. This means that you and your mortgage bank will have to work together to get the repairs completed and your contractors paid. Another option can be to actually pay off the mortgage debt altogether (if there’s a sufficient amount), but that is a decision that the mortgage lender gets to make. As a homeowner you should try to find out how the mortgage lender will use the insurance proceeds because if the mortgage debt is paid off that leaves you with no money to make repairs to your home.