PropertyProf Blog

On-Line Ad Housing Discrimination Case

Eugene Volokh has a post on Fair Housing Council v. Roomates.com.  The case is mostly about some on-line immunity issues, but an underlying issue about expressing preferences for roomates will be a familar one to propertyprofs.

Ben Barros

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Rock Star Brophy From Alabama to UNC!!!

This has been a poorly kept secret for a while now, but since Brian Leiter is reporting it, we can now announce that our own certified rock star Al Brophy will join the faculty at UNC Chapel Hill next year.  Apparently, he will have some fancy title.

Congrats Al!

Ben Barros

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New Book on Post-Kelo Eminent Domain

Today's mail brought my copy of Private Property, Community Development, and Eminent Domain, edited by Robin Paul Malloy.  The book contains essays by Tom Allen, Carol Brown, Eric Claeys, Rachel Godsil, Robin Malloy, Marc Pairier, David Simunovich, Jim Smith, and Michael Allen Wolf, and yours truly.  My contribution is my essay on the Berman and Midkiff conference notes.

Get your library to order a copy today!

Ben Barros

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Public Use Cert Petition

Over at Scotusblog, Lyle Denniston has a post on a cert petition to the Supreme Court presenting some post-Kelo public use issues.

Ben Barros

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Tax Consequences of Postmortem Right of Publicity

Mitchell M. Gans, Bridget J. Crawford & Jonathan G. Blattmachr have an interesting piece in the Yale Law Journal's Pocket Part called Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights.  Here's the intro:

California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent’s named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality’s image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent’s gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate’s liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent’s ability to control the disposition of any postmortem rights of publicity.

Ben Barros

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Foreclosure Road Trips

The Washington Post has an interesting story (free regist. required) about bus tours of foreclosed properties by potential buyers.  An excerpt:

A new form of sightseeing is catching on in the Washington suburbs, offering investment advice, free cookies and some eye-opening discoveries among the empty ramblers and forsaken townhouses of the region.

They are known as foreclosure tours or home buyer tours. One that originated yesterday at a Northern Virginia Long and Foster office was labeled "The Centreville Gateway Foreclosure Tour of Homes." More than 30 "tourists" squeezed onto a green passenger bus for a three-hour spin through parts of Fairfax, Loudoun and Prince William counties. Some said they were looking for their first home, others were looking for a good investment, and some were just looking.

"I figure it's probably a good time to get into the housing market," said Anita Walter, a Centreville resident who saw an ad for the tour in a community newspaper. "I'm curious to see what's out there, but I want a home that will be my home.

"I'm not trying to turn around and make a quick buck," she said.

For homeowners and investors worried about the state of the housing market, the tours and their growing popularity are a sign that falling housing prices are attracting an increasing number of potential buyers -- including those willing to travel in packs. Long and Foster offices have staged similar tours in Manassas, Gainesville, Alexandria and Mount Airy. Ones are planned in Prince George's County and Southern Maryland.

"The general public doesn't know how to find foreclosed properties," said Pat Bogenn, a Long and Foster real estate agent. "There are deals out there, but there are also pitfalls.

"With bank-owned properties, most people don't know that they're buying 'as-is,' " she said. Potential buyers might need to have utilities reconnected just to find out whether pipes are broken or the septic system works, Bogenn said.

The main draw of the tours is that they are a kind of rolling foreclosure seminar, counseling participants in everything from financing to property inspection to legal concerns. . . .

There was a home inspector on board to point out maintenance concerns and estimate repair costs, as well as two lenders and a real estate attorney. All of the homes on the tour were vacant and bank-owned, which eased some of the ambivalence participants felt about taking over a property its previous occupants might not have parted with willingly. . . .

As the tour illustrated, that amount of money will buy a lot more in Northern Virginia now than a year ago. One stop on the tour was a massive townhouse in Centreville that sold for $519,000 in February 2007 and is now listed at $399,000. Then there was a hearty brick rambler on a quiet Manassas Park street with a huge yard, hardwood floors and a finished basement. Asking price: $284,000.

Ben Barros

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Rosser on Property Consequences of Indians

Ezra Rosser (American U.) has posted Protecting Non-Indians from Harm: The Property Consequences of Indians on SSRN.  Here's the abstract:

This article is an exploration of the assumption, last made by the U.S. Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, that non-Indian property owners are harmed by Indian acquisition and control of land. Accepting for the moment the Court's prioritization of a non-Indian perspective, the article explores (a) what lies behind non-Indian resistance to Indian land ownership, and (b) whether in fact non-Indians are harmed by proximity to Indian land. The article combines in its analysis core property law concepts with an empirical examination of the changes over time in assessed land value of properties located near Indian land.

Ben Barros

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Supreme Court Decision in New Jersey v. Delaware

Yesterday, the Supreme Court ruled in favor of Delaware in its riparian use dispute with New Jersey.  The New York Times has an article on the case.  The opinions are available here.  Choice quote from the Times about Justice Scalia's dissent:

What was so “extraordinary” about a wharf to unload liquefied natural gas, he asked. “Would a pink wharf, or a zig-zagged wharf qualify? How about one for the transfer of “tofu and bean sprouts”?

Ben Barros

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More cemetery law: Thomas Jefferson's Grave

Today's New York Times brings this story ("Atop a Hallowed Mountain, Small Steps Toward Healing,") about the Jefferson family cemetery.  It is "owned by the lineal descendants of Thomas Jefferson. Last year about 250 people with ancestral ties to Monticello — including descendants of Jefferson and Sally Hemings, a slave — met at the homestead for a reunion of sorts, but they were not allowed into the graveyard."

A few excerpts from the story:

Halfway down the mountain sits the Jefferson family cemetery, owned by the lineal descendants of Thomas Jefferson and overseen by the Monticello Association, which is made up of some of those descendants. Proud names call from tombstones behind the locked gates: Randolph, Taylor, Eppes, Coolidge. But no Hemings. ...

In 2002 the association voted overwhelmingly not to extend membership to the descendants of Sally Hemings, arguing that some scholars had found insufficient evidence of a Thomas Jefferson blood connection but inviting them to apply again should further evidence surface. That vote led to charges of racism, denials of racism — a kind of family quarrel.

Still, relationships have developed. Last year about 250 people with ancestral ties to Monticello — including some Hemings and Jefferson descendants — met at the homestead for a reunion of sorts that was rooted in the belief that community transcends bloodlines.

Before the gathering, one of its organizers, a descendant of Jefferson named Prinny Anderson, attended a meeting of the Monticello Association, of which she is a member, to ask whether those coming for the event might be allowed inside the Jefferson graveyard. Ms. Anderson, of Durham, N.C., says she made no mention of Hemings, “although that was the elephant in the room.”

Her request was overwhelmingly denied, she recalls, on the grounds that “it would damage the grass. And I say that with a straight face.”

Steve Moyer, another Jefferson descendant and the president of the Monticello Association, confirms that grass was a central concern, though other worries included the fragility of tombstones. The grass had taken years to grow, he says, and to have 250 people tromping through there in hot and dry July was “the last thing we needed.”

....

Sounds like a perfect application of cemetery law.  You may recall that Virginia has a particularly generous cemetery visitation statute.  It provides for broad rights of access by relatives of the decedent and researchers:

A. Owners of private property on which a cemetery or graves are located shall have a duty to allow ingress and egress to the cemetery or graves by (i) family members and descendants of deceased persons buried there; (ii) any cemetery plot owner; (iii) any person engaging in genealogy research, who has given reasonable notice to the owner of record or to the occupant of the property or both.  The landowner may designate the frequency of access, hours and duration of the access and the access route if no traditional access route is obviously visible by view of the property.  The landowner, in the absence of gross negligence or willful misconduct, shall be immune from liability in any civil suit, claim, action, or cause of action arising out of the access granted pursuant to this section.

B. The right of ingress and egress granted to persons specified in subsection A shall be reasonable and limited to the purposes of visiting graves, maintaining the gravesite or cemetery, or conducting genealogy research.  The right of ingress and egress shall not be construed to provide a right to operate motor vehicles on the property for accessing a cemetery or gravesite unless there is a road or adequate right-of-way that permits access by motor vehicle and the owner has given written permission to use the road or right-of-way of necessity. . . .

Va. Code Ann.§ 57.27.1 (1993).

Want to know more about the ancient rights of the graveyard?  Check out this paper, which, by the way, talks about descendants of enslaved people seeking to visit the graves of their ancestors.

Anyone want to hazard a guess what our friend Mr. Jefferson would say about this?  Perhaps something akin to what he said about the Natural Bridge--that the bridge is a public trust.  Perhaps he'd consider his grave a public trust as well....

Update:  I have a fuller discussion of this over at Oxford University Press' blog.

Endnote: I couldn't find a public domain image of the Jefferson family cemetery, so I used a wikipedia image of Monticello instead.

Alfred Brophy

Property in the Lord of the Rings

Ilya Somin, the libertarian counterpart to GMU's natural law duo of Mossoff and Claeys, has a post at the VC on Property in the Lord of the Rings.

Ben Barros

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Mossoff to George Mason

According to David Bernstein at the VC, Adam Mossoff is moving from Michigan State to George Mason.  Will the natural law duo of Mossoff and Claeys eventually challenge Yale's Smith and Merrill for property theory supremacy?  Stay tuned to find out.

Ben Barros

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