October 7, 2005
Weekly Top Ten
Here is the list of the top 10 papers by download in the last 60 days for SSRN's Journal of Property, Land Use & Real Estate Law (with total number of downloads in parens after the rank). Those of you who read other blogs in the Law Professor Blogs Network know that this is a regular feature of our blogs, and it will appear here on Fridays every week. I'm as surprised at #2 as anyone.
1. (95) A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, Jedediah S. Purdy (Duke University - School of Law)
2. (86) At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, Benjamin Barros (Widener University - School of Law)
3. (53) Private Property, Development and Freedom: On Taking Our Own Advice, Steven J. Eagle (George Mason University - School of Law)
4. (51) Grave Matters: The Ancient Rights of the Graveyard, Alfred L. Brophy (University of Alabama - School of Law)
5. (48) Unsubsidizing Suburbia, Nicole Stelle Garnett (Notre Dame Law School)
6. (47) Efficient Trespass: The Case for 'Bad Faith' Adverse Possession, Lee Anne Fennell (University of Illinois College of Law)
7. (42) Rethinking the Perpetual Nature of Conservation Easements, Nancy A. McLaughlin (University of Utah - S.J. Quinney College of Law)
8. (42) Default, Credit Scoring, and Loan-to-Value: A Theoretical Analysis Under Competitive and Non-Competitive Mortgage Markets, Danny Ben-Shahar (Interdisciplinary Center Herzliyah - Arison School of Business)
9. (40) There's No Place Like Home: Homestead Exemption and Judicial Constructions of Family in Nineteenth-Century America, Alison D. Morantz (Stanford University - Law School)
10. (39) Of Rainbows and Rivers: Lessons for Telecommunications Spectrum Policy from Transitions in Property Rights and Commons in Water Law, Dale B. Thompson, (Economics Dept., St. Cloud State)
October 6, 2005
If You Love Spite Fence Cases . . .
as I do, then you should check out Dowdell v. Bloomquist, 847 A.2d 827 (RI 2004). Bloomquist applied to the Charlestown Zoning Board of Review for a variance to build a second story for his home. Neighbor Dowdell opposed the application, citing concerns about her view of the Atlantic Ocean. Relationship between Dowdell and Bloomquist deteriorated. Bloomquist planted a row of four forty-foot-high western arborvitae blocking Dowdell's view of the water. A big issue in the case was whether the trees constituted a "fence" within the meaning of the Rhode Island spite fence statute. The statutory definition of a fence includes a hedge, and the trial court heard expert testimony(!) on whether the trees were a hedge. The trial court held that they were a hedge, and the Supreme Court of RI affirmed, apparently consistent with a California case on the same issue.
SIUC Seeks Distinguished Visitor in Ag Law
Southern Illinois University Carbondale is seeking nominations and applications for a Distinguished University Visiting Professor for the 2006-2007 academic year. Established in 2004, this position is intended to bring to the university an outstanding, nationally recognized scholar and teacher with an interdisciplinary interest. The 2006-2007 position has been designated for the fields of law and agriculture.
The Distinguished University Visiting Professor is expected to teach three courses in the School of Law and a fourth in the College of Agricultural Sciences. The successful candidate also is expected to deliver one public lecture and continue his/her scholarly research and publication. It is hoped that during the year, the Distinguished University Visiting Professor will interact closely with students and faculty in both colleges, as well as with members of the wider university and general communities. Support for the position includes a competitive salary, benefits, a travel allowance, and a research assistant.
Chartered in 1869, Southern Illinois University Carbondale is a comprehensive, post-secondary public educational institution offering a broad range of academic programs. The university is one of the nation’s premier research institutions as indicated by rankings of the Carnegie Foundation for the Advancement of Teaching.
The School of Law, which was established in 1973, is housed in the Lesar Law Building, a contemporary structure situated on the western edge of the university’s Carbondale, Illinois campus near Thompson Lake. With 33 faculty members and approximately 360 students, the School of Law enjoys one of the best student-faculty ratios of any law school in the country. The law building features an outstanding law library with more than 380,000 volumes and microfilm volume equivalents, as well as state of the art classrooms.
The College of Agricultural Sciences has an undergraduate enrollment of about 750 students in four units: agribusiness economics; animal science, food and nutrition; forestry; and plant, soil, and agricultural systems. The college offers graduate studies leading to master of science degree. Graduate enrollment is about 150 students. Three of its departments are active participants in the university’s Environmental Resources and Policy Ph.D. Program.
Carbondale is a classic university town approximately 100 miles southeast of St. Louis, Missouri, in a beautiful setting next to the majestic Shawnee National Forest. The city has a resident population of about 26,000, which increases to around 47,000 from August to May, as the university hosts more than 21,000 students of diverse ethnic and social backgrounds. Applicants must possess a Juris Doctor degree or its equivalent from a nationally-accredited law school and have an outstanding national reputation as an agricultural law teacher and scholar. Factors to be considered in assessing the Distinguished University Visiting Professor include the following: scholarly and teaching record, law practice experience in the relevant field, honors previously received (e.g., awards, fellowships, etc.), participation in national and international organizations, letters of recommendation and other factors relevant to assessing qualifications for this position.
Nominations, applications and inquiries should be sent to: W. Eugene Basanta, Professor of Law, Southern Illinois University School of Law, 1150 Douglas Drive, Mail Code 6804, Carbondale, IL 62901-6804. Phone: 618-453-8748; fax: 618-453-3317; email: firstname.lastname@example.org. Deadline for application: October 15, 2005, or until position is filled. SIUC is an affirmative action/equal opportunity employer that strives to enhance its ability to develop a diverse faculty and staff and to increase its potential to serve a diverse student population. All applications are welcomed and encouraged and will receive consideration.
October 5, 2005
Removing Racial Covenants
Kaimi Wenger over at Concurring Opinions has an interesting post on a California bill designed to make it easier to remove racial covenants from titles:
Racial restrictions were declared illegal half a century ago, in Shelley vs. Kraemer. It's not as if anyone is enforcing them today. But they remain in the titles to many pieces of property, and they serve as a painful reminder of the past. Under current law, property owners can petition to have them removed, but the process is cumbersome and time-consuming, and it affects only single parcels.
AB 394 would provide a streamlined method for removing these covenants from entire subdivisions. Seems like a reasonable idea to me.
I'm in the process of writing a mid-term exam for my property students, which brought this subject to mind. I'd be interested in using this blog as a forum for allowing property profs to share exam ideas, but I'm not sure how to set such an exchange up. I, for example, would be happy to share my multiple-choice and essay questions (with model answers) with other professors, but don't want all of them to be student accessible. Perhaps I could set up a list of e-mail addresses of property professors willing to share exams, and we could get in touch with each other directly.
Please leave a note in the comments if you (a) would be interested in participating and (b) have any ideas on how to set things up. Or e-mail me.
Resources on the Legislative Response to Kelo
I haven't seen much academic discussion of the legislative response to Kelo, which to me is far more interesting than the Court's decision itself. The Kelo backlash presents a rare opportunity to get state legislatures to pay attention to eminent domain law and procedure. This opportunity extends beyond the relatively narrow "economic development takings" issue raised by Kelo. I think that in the current political climate, many legislatures are willing to consider a wide range of reform ideas.
I will have some substantive postings on legislative reform soon, but in the meantime, I'm trying to put together a list of links to resources on the issue. Here is what I have so far:
The Castle Coalition maintains listings of pending legislation on the federal, state and local levels. They also have model legislation and the Institute for Justice's white paper on legislative reform.
Will Baude has posted notes on a debate on the issue between Merrill and Nicole Garnett (Notre Dame).
I've given testimony to the Pennsylvania legislature on the issue.
I'm sure there is more out there. Please e-mail me or leave a comment if you know of anything I should add to the list. To be clear, I'm not looking for material about the Kelo decision itself; rather, I'm looking for material on what legislatures should do (or not do) in response to Kelo.
[Please note that there might be a delay in comments going up because they won't appear until I have had a chance to review them.]
October 4, 2005
Should We Have A Model Law of Property?
My students sometimes ask me why we don't cover more of the Restatements in our first year property class. In torts and contracts, the Restatements are all over the place. In property, they don't come up much at all, though I do cover the Restatement (Third) when I'm teaching servitudes. My answer varies, but is based on the following impressions: (1) there is far less uniformity across jurisdictions in property than there is in, say, torts and contracts; (2) the first two Restatements reinforced a lot of silly common law rules and as a result academics don't like them much; and (3) courts are less willing to change the common law of property than they are in other common law disciplines, so the Restatements of Property have had less impact than the Restatements of other subjects.
I don't have any real empirical support for these impressions, and feel free to correct me in the comments if you think I'm wrong about any of them. I've read enough property decisions to think that number 3 is true. Courts are always hesitant to upset expectations by changing the rules in mid-stream, and the long duration of many property relationships reinforces this tendency. Major change in property law, the courts often say, should be done by the legislature.
So if courts are hesitant to reform and rationalize property law, why do we keep doing Restatements? I'm generally a fan of the Restatement (Third) of Property, Servitudes. Among other things, abolition of the distinction between real covenants and equitable servitudes makes a great deal of sense -- the difference between the two is a relic of the division between law and equity, and it seems silly to have different rules if a covenant is going to be enforced through an injunction or money damages. Some courts might be bold enough to make such a radical change, but my bet is that most would not. So why be court-centric? Why don't we put the same substance into a Model Law of Servitudes and try to reform property law through the legislatures? Some legislative property reform might raise takings issues (a subject I'll address in a future post), but I have a hard time seeing that as a problem with servitudes reform.
Comments are open. There might be some delay in the comments showing up on the blog because I have to approve them before they post.
Alabama Looking For Property Profs
The University of Alabama School of Law is accepting applications for two faculty positions for which property law is a subject matter of need. One position is an endowed chair position (requires substantial teaching experience and scholarship as well as proven leadership and mentoring
qualities) and the other position is entry-level. Other subject matter interests include commercial law, labor, legal philosophy, evidence, decedents' estates, federal courts, civil procedure and ADR.
Interested candidates for either position may apply by sending a CV and any other materials to: J. Noah Funderburg, Senior Assistant Dean for Administration, University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382. Email applications will be accepted:
October 3, 2005
There will be (at least) three takings conferences held during October and November.
The Georgetown Environmental Law & Policy Institute will hold its annual Litigating Takings conference at Harvard Law School on October 27-28. As always, GELPI has put together an impressive list of panelists who will discuss the Supreme Court's recent trilogy of takings cases (Lingle, Kelo and San Remo) and various other takings issues.
William & Mary Law School will host the Second Annual Brigham-Kanner Property Rights Conference on October 29:
In conjunction with the Institute on Bill of Rights Law, the William & Mary Property Rights Project will honor Professor Richard Epstein as the recipient of the second annual Brigham-Kanner Prize. The conference will include academic commentary on Professor Epstein’s property rights scholarship, a discussion of recent developments in takings law, and a debate on public use doctrine in the aftermath of the Supreme Court’s 2005 Kelo opinion.
Participants in the William & Mary conference include Vicki Been (NYU), Dana Berliner (Institute for Justice), James Ely (Vanderbilt), Richard Epstein (University of Chicago), Michael Heller (Columbia) and Eric Kades (William & Mary).
The University of Florida will host New Takes on Takings: Kelo, Lingle, Canker, and More on November 17-18. Presenters include Michael Allan Wolf (Florida), James Krier (Michigan), Nicole Stelle Garnett (Notre Dame), Eduardo Penalver (Fordham), Douglas Kmiec (Pepperdine) and Mark Fenster (Florida).
I'll be at the GELPI conference; if you are there, please say hello.
October 2, 2005
Covenants Against Sex Offenders
Common interest community covenants against registered sex offenders appear to be spreading like wildfire -- I've seen quite a few press reports about them in the past couple of months. As far as I know, only one case has considered the validity of such a covenant, Mulligan v. Panther Valley Property Owners Assn., 766 A.2d 1186 (N.J. App. Div. 2001).
In Mulligan, the court rejected what essentially was a facial challenge to the covenant, but left open the possibility that an anti-sex-offender covenant might (or might not) be found to be invalid in a case with a more developed record if the plaintiff could show that "a large segment of the housing market [was] unavailable to one category of individual" or that "the Association performs quasi-municipal functions, such that its actions perhaps should be viewed as analogous to governmental actions in some regards."
Other than vague public policy/reasonableness grounds, I have a hard time thinking of a reason why these covenants might be invalid. So far as I know, sex offenders aren't a suspect class and aren't disabled. Beyond their validity or invalidity, though, these covenants present some other interesting issues.
One is potential liability for common interest community associations that fail to impose this type of restriction. Some courts have held that community associations may be liable for failure to take steps to protect residents from criminal attack. See, e.g., Frances T. v. Village Green Owners Ass'n, 723 P.2d 573 (Cal. 1986). It isn't hard to imagine a lawsuit against a community association for failure to impose a restriction on sex offenders. Whether such a lawsuit would have merit is another issue entirely.
Another issue is enforcement -- I can't think of any other covenants that are enforceable today that would prevent a person from living in a particular community. Many of the covenants that I have seen discussed in the press seem to bar the transfer of the property to a registered sex offender. The Panther Valley covenant takes a different approach. David Ramsey, who wrote the original Panther Valley covenant and who can probably claim to be the inventor of this type of covenant, was kind enough to provide me with the current version of the covenant and give me permission to post it here:
(a) RESTRICTION AGAINST MEGAN’S LAW REGISTRANTS.
i. No person required to register with a designated registering agency pursuant to N.J.S.A. 2C:7-3 and who, thereafter, is determined to be a Tier-2 or Tier-3 registrant pursuant to N.J.S.A. 2C:7-8(c)(3) (“Megan’s Law Registrant”), may permanently or temporarily reside in a Lot. As used in this section “resides” means living in or possessing any portion of a Lot for more than 14 days out of any 30 consecutive-day period.
ii. If, subsequent to the recording of this Declaration in the records of the Clerk of Morris County, a Megan’s Law Registrant resides in a Lot as a tenant, or under any other possessor interest, the Lot Owner must immediately cause the person to vacate the Lot and, if the person does not vacate the Lot within 30 days of the date the Lot Owner was notified by the Association of the presence of a Megan’s Law Registrant, then the Lot Owner will immediately commence eviction proceedings. If the Lot Owner fails to commence the eviction proceeding within 30 days following the date the Lot Owner is required to do so and diligently pursue the eviction to conclusion, then the Association may act as attorney-in-fact for the Lot Owner and pursue the eviction action at the Lot Owner’s cost and expense. If any action seeking eviction of a Tier-3 tenant does not result in a judgment of possession in favor of the Lot Owner, the Association may, but will not be obligated to, prosecute an appeal seeking the eviction of the tenant. In the event the Association obtains a final judgment resulting in the eviction of the tenant the Lot Owner will be responsible for all reasonable fees and costs of the Association in prosecuting the appeal.
Each Lot Owner hereby appoints the Association as the Lot Owner’s attorney-in-fact for the purpose of commencing eviction proceedings, executing any and all documents pertaining to the proceedings or performing any or all responsibilities as may be required or necessary to be performed pursuant to this Paragraph “a” of the Association’s Use Restrictions. This power of attorney is expressly declared and acknowledged to run with the title of any and all Lots and will be binding upon the heirs, personal representatives, successors and assigns of the Lot Owner.
iii. Any Lot Owner who, by virtue of residing in a Lot, has been notified by the Association that he is in violation of this Paragraph “a” of the Association’s Use Restrictions, must vacate the Lot within 90 days of receipt of the Association’s notice. If the Lot Owner fails to vacate the Lot within 90 days, the Association may, in addition to all other remedies available to the Association, purchase the Lot at a purchase price equal to the average of two independent appraisals to be obtained by the Association, less the Association’s anticipated costs of selling the Lot, including, without limitation, brokerage fees, of not more than seven percent (7%) of the appraisal value, the cost of the appraisal, the realty transfer tax (based on the appraisal value), and other customary and incidental selling costs not in excess of one percent (1%) of the appraisal value.
iv. The Association will not be liable to any Lot Owner or anyone occupying or visiting the ABC Community as the result of the Association’s failure to dispossess a Megan’s Law Registrant.
Two things are particularly notable about this covenant. First, by limiting its scope to Tier 2 and Tier 3 sex offenders, the covenant is strengthened by the legislative determination made in enacting Megan's law that this type of sex offender has a high likelihood of recidivism. Second, by focusing on the sex offender's right to live in the community rather than on the sex offender's right to purchase or lease in the community, the covenant (a) covers people who become sex offenders after they purchase or rent and (b) avoids the potentially very difficult task of unwinding a completed real estate transaction if the association learns of a sale to a registered sex offender after the sale has closed. I don't know much about this subject, but an association trying to enforce a transaction-based covenant might have to look to pre-Shelley v. Kraemer cases enforcing (now invalid) covenants against selling to members of a particular racial, ethnic or religious group.
Comments are open for anything related to this type of covenant. Are they a good idea? Are they enforceable? How will they work in practice? [Our comment system is set up so that I have to approve comments, so there might be some delay in posting].
Welcome to the Property Profs Blog!
Thanks for stopping by! This blog is designed to serve as a forum for the discussion of anything and everything related to the teaching and academic study of property law. If you have any comments, questions or ideas, please e-mail me. Please also send along conference announcements, job posts, new posts on SSRN, or anything else you think might be of interest.