PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, January 7, 2006

Kelo Update

Tom Blumer has another update on what's happening in New London.  His intro:

This post contains:

    • Two relevant area maps, one from the New London Development Corporation and another from Google. Given the controversy, I’m surprised that I have yet to see a single map in any article I have seen about it.
    • A long excerpt from a New London Day article about a new deal between the NLDC and the developer, Corcoran Jennison (CJ), which looks like a major makeover, and (to me) has a distinct underlying whiff of desperation.
    • A shorter excerpt from a different Day article about how a lot of parties are irritated with and disagree with Connecticut’s governor because she (gasp) seems to believe that whatever development occurs can and should be done without taking the remaining properties.

Hat tip: Todd Zywicki at the VC.

Ben Barros

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January 7, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Friday, January 6, 2006

European Court of Human Rights Case on Adverse Possession

At today's Property Section panel at the AALS (which I'll discuss in more detail in a later post), Nicole Garnett mentioned in passing a European Court of Human Rights case that held that an application of England's adverse possession law amounted to an unlawful taking of property.  The ECHR's press release for the case, J.A. Pye (Oxford) Ltd v. The United Kingdom, says in part:

The Court found that the combined effect of the 1980 and 1925 Acts was both to deprive the applicants of their substantive property rights and to preclude them from lawfully repossessing the land, the beneficial title to which they had lost.

The Court accepted that it was the Grahams' adverse possession of the land for 12 years which directly led to the applicants' loss of their title. However, the Court also observed that, but for the provisions of the 1925 and 1980 Acts, the adverse possession of the land by the Grahams would have had no effect on the applicants' title or on their ability to repossess the land at any stage. It was the legislative provisions alone which deprived the applicants of their title and transferred the beneficial ownership to the Grahams. The Court accordingly found that the operation of the relevant provisions of the two Acts constituted an interference by the United Kingdom with the applicant companies' rights under Article 1 of Protocol No. 1.

The Court took the view that, with one or two limited exceptions, the uncertainties which sometimes arose in relation to the ownership of land were very unlikely to arise in the context of a system of land ownership involving compulsory registration (as in the applicants' case), where the owner of the land was readily identifiable. In the days before registration became the norm, a result whereby an adverse possessor of land was rewarded by obtaining title could be justified as avoiding protracted uncertainty as to where the title to land lay; where land was registered, it was difficult to see any justification for a legal rule which led to such an unjust result.

The Court further took note that many common law jurisdictions which had systems of title registration had either abolished the doctrine of adverse possession completely or had substantially restricted its effects.

However, despite the major changes to the law of adverse possession made by the Act of 2002, in the case of registered land, the law itself was not abolished. The Court, therefore, could not accept that the law of adverse possession in England and Wales served no continuing public interest so far as registered land was concerned.

The Court accepted that the limitation period of 12 years was relatively long and that the law of adverse possession was well-established and had not altered during the period of the applicants' ownership of the land. It was further accepted that, in order to avoid losing their title, the applicants had to do no more than regularise the Grahams' occupation of the land or issue proceedings to recover its possession within the 12-year period. The question nevertheless remained whether, even having regard to the lack of care on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.

The Court noted that not only were the applicants deprived of their property, they received no compensation for the loss. The result for them was therefore one of exceptional severity.

The Court reiterated that the taking of property in the public interest without payment of compensation reasonably related to its value was justified only in exceptional circumstances.

The lack of compensation in the applicants' case had to be viewed in the light of the lack of adequate procedural protection for the right of property within the legal system in force at the relevant time. In particular, although it was open to the dispossessed owner of the land to argue after the expiry of the 12-year period that the land had not been adversely possessed, during that period, no form of notification whatever was required to be given to the owner, which might have alerted him to the risk of losing his title.

The United Kingdom Government argued that the State had no duty to protect a person against his own negligence. However, the Court observed that such negligence would have had no adverse consequences for the applicants but for the contested statutory provisions. More importantly, it was clear that Parliament itself recognised the deficiencies in the procedural protection of landowners under the then current system by enacting the Act of 2002. The new Act not only put the burden on a squatter to give formal notice of his wish to apply to be registered as the owner after 10 years adverse possession but required special reasons to be given to entitle him to acquire the property where the legal owner opposed the application.

The mere fact that a legal system was changed, to improve the protection provided under the Convention to an individual, did not necessarily mean that the previous system was inconsistent with the Convention. However, in judging the proportionality of the system as applied in the applicants' case, the Court attached particular weight, among other things, to the changes made in that system.

The Court concluded that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possessions on the other. There had therefore been a violation of Article 1 of Protocol No. 1.

The House of Lords opinion that was appealed to the ECHR is available here.  I know next to nothing about European Human Rights law, but this result seems bizarre to me.  Informed (and uninformed) comments are welcome.  Also, there was some good discussion about a month ago on PrawfsBlawg on whether a similar claim would work in the U.S. -- I'm not sure how I missed it at the time.

Ben Barros

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January 6, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

Are Common Interest Communities Property's LLCs?

When the spring semester starts on Monday, I'll be teaching Property and Business Organizations.  As I was getting my syllabi together, I was struck by the thought that Common Interest Communities are the property equivalent of LLCs, in that everyone acknowledges that they are incredibly important but that they are under-taught in the core law school curriculum.  Over the past five or ten years, LLCs have become the dominant form of American business organization.   The material on LLCs in most Bus Orgs casebooks, however, is minimal, in part because there haven't been many LLC cases litigated in the courts.  It seems to me that the situation with Common Interest Communities is similar, though there isn't a shortage of CIC cases.  CICs have been around for a long time, but have really taken off more recently.  I'm not sure we've caught up in how we teach Property to our students.

Ben Barros

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January 6, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

No changes from last weeks Top 10 -- perhaps people are spending all of their time at conferences and grading rather than downloading.

1. (337) Economic Analysis of Law, A. Mitchell Polinsky and Steven Shavell (Stanford Law School and Harvard Law School)

2. (283) The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court, Richard Lazarus (Georgetown University Law Center)

3. (260) How Overregulation Creates Sprawl (Even in a City without Zoning), Michael Lewyn (George Washington University Law School)

4. (152)  Information Asymmetries and the Rights to Exclude, Lior Strahilevitz (University of Chicago Law School)

5. (112) Property and the Public Domain, Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law)

6. (88) The Fall and Rise of Functional Property, Francesco Parisi (George Mason School of Law)

7. (78) Human Nature, the Laws of Nature, and the Nature of Environmental Law, Richard James Lazarus (Georgetown University Law Center)

8. (70) The Ownership Society & Regulatory Takings: Castles, Investments, & Just Obligations, Joseph William Singer (Harvard Law School)

9. (57) Gone Too Far: Measure 37 and the Perils of Over-Regulating Land Use, Sara C. Galvan (Yale University)

10. (56) Perpetuities or Taxes? Explaining the Rise of the Perpetual Trust, Max M. Schanzenbach and Robert H. Sitkoff (Northwestern University - School of Law and New York University School of Law)

Ben Barros

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January 6, 2006 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, January 4, 2006

Incorporating Transnational Perspectives In the Property Class

Today's schedule at the AALS featured a group of presentations on incorporating transnational perspectives into the first year curriculum.  The property breakout sessions featured six great presentations on practical ways to incorporate transnational issues into the first year property course in a time efficient manner.  I hope to be able to post the materials distributed by the presenters, or at least links to those materials, in the next week or so.

Ben Barros

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January 4, 2006 in Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 3, 2006

Another Reason to Dislike This Hotel

Like most relatively new law professors, I'm having flashbacks at the Marriott Wardman Park.  For those readers who aren't law professors, the Wardman Park is the site of the annual AALS Hiring Conference, affectionately known as the meat market.  For those who haven't gone through it, let me just say that the meat market experience burns itself into a person's memory.  Sadly enough, due to Katrina, the Wardman is also the site of this year's AALS Annual Conference.  So I keep walking down the hall muttering about my research agenda for no good reason.

To add to this, I'm peeved right now about having to pay for WiFi access in the hotel lobby.  C'mon Marriott, Starbucks gives it away for free.

Ben Barros

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January 3, 2006 in Miscellaneous | Permalink | Comments (1) | TrackBack (0)

Off To The AALS

I'm heading off to the AALS conference in DC, and will be at all of the property-related sessions.  Please say hello if you are there.

Ben Barros

January 3, 2006 in Conferences | Permalink | TrackBack (0)

Sunday, January 1, 2006

Regulation and Housing Costs

The Boston Globe today has an interesting article (registration required) on a forthcoming report by Harvard Economics Professor Edward L. Glaeser on the impact of regulation on housing prices in the Boston area.  Some excerpts:

The report, which is based on a two-year survey of land-use rules in the 187 cities and towns within 50 miles of Boston, points to locally mandated lot sizes as large as 2 acres and overly restrictive wetlands and septic rules as the most significant barriers to housing construction. It also cites local prohibitions on irregularly shaped lots and ''growth caps" limiting the number of units that can be built in a year. . . .

Glaeser proposes several possible solutions, all of which would give the state a greater role in local development. He says Massachusetts could withhold state money from communities that block development, or create a single entity or regional entities that could overrule local officials. It also might limit lawsuits against developers by forcing losing plaintiffs to pay the developer's legal costs, or replace local land-use regulations with impact fees -- set by the state -- that developers would have to pay to cities and towns. . . .

Glaeser found that large minimum lot sizes have the most potent impact on price: An additional acre in minimum lot size raised the median sales prices of homes in a given town by 19.5 percent in 2001. When communities increase minimum lot sizes by a quarter of an acre, about 10 percent fewer homes are permitted, Glaeser found. When towns impose wetlands rules that are stricter than what the state requires, new construction appears to fall by about 10 percent, and stricter rules for septic systems decrease construction by 4 percent.

Ben Barros

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January 1, 2006 in Land Use | Permalink | Comments (2) | TrackBack (0)