PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, December 26, 2008

Snowzilla: Public Nuisance

Thanks to a tip from a former student (Addie McKinney) I see that Snowzilla (a two story tall snowman) has been abated in Anchorage.  From the introduction to the Anchorage Daily News story:

Anchorage's famous giant snow man, Snowzilla, finally met its match.

   It wasn't the weather. It wasn't angry neighbors bearing shovels and pick axes.

It turns out Snowzilla's biggest foe -- the one who felled the controversial but much-loved giant -- was a notice-bearing city code enforcement officer.

   That's right, Snowzilla was abated.

It was just a few years ago that 16-foot-tall Snowzilla arose in a residential yard in Airport Heights, launching an annual procession of local gawkers and an international media blitz.

[And then] ... "on Dec. 11, the city notified the Airport Heights community council about its decision to abate Snowzilla, telling council members that the two-story snowman caused increased traffic to the point of endangerment and that the structure itself was unsafe."

So much for the holiday spirit, eh?  Anyway, this is just in time for your coverage of public nuisance in your spring property course.  Sounds like it's another great example for Jim Smith's law of yards.

Anyway, ho, ho, ho.....

Alfred Brophy

December 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, December 22, 2008

Kelly on Title Clearing in the Internet Age

James J. Kelly Jr. (Univ. of Baltimore) has posted Bringing Clarity to Title Clearing: Tax Foreclosure and Due Process in the Internet Age on SSRN.  Here's the abstract:

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of follow-up on returned notice mailings denied the addressee due process because they were not steps that would be chosen by "one desirous of actually informing" the property owner. While rightly decided, Jones, in subjecting to direct constitutional review the myriad notification decisions a foreclosure petitioner must make in conducting diligent attempt at notification, threatens the validity of tax foreclosure proceedings and the titles that result from them in a fundamentally different way than earlier precedents that made notification more rigorous without loss of clarity. After demonstrating the Court's historical use of rules and standards in this area of notice and opportunity to be heard, this Article will show how the development of constitutional safe harbors can be used to resolve the shortcomings of the rule/standard dichotomy. Deploying a theoretical framework for the judicial fostering of fair and efficient constitutional safe harbors, this Article advocates legislative enactment of and judicial support for detailed notification protocols tailored to the particular needs and behaviors of the different types of land interest holders entitled to foreclosure notice.

In order to provide reliable guidance to foreclosing parties, these notice procedures should be designed to meet a higher standard developed in the Court's due process jurisprudence. If a court finds a set of legislated protocols "reasonably certain to inform" the interested parties for whom they were designed, then that court should judge the constitutionality of notification choices that come before it against that certified rule. Such an approach would be preferable to reviewing those decisions directly using vague, albeit generally less restrictive, constitutional standards such as "reasonably calculated . . . to apprise" or "chosen by one desirous of actually informing." Notification protocols that meet this due process "super standard" of reasonable certainty can become safe harbors for those pursuing tax foreclosure remedies while still assuring full compliance with the guarantees of notice and opportunity to be heard embodied in constitutional jurisprudence.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 22, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, December 21, 2008

Spiller v, Mackereth

Jemison_building_tuscaloosaDoing a little cross-posting from the faculty lounge this morning.

Users of the Dukeminier and Krier (and now Schill and Alexander) property casebook may recall the 1976 Alabama case of Spiller v. Mackereth, which dealt with relations between two co-tenants of a commerical real estate building in Tuscaloosa.   Now the Tuscaloosa News brings a story about a building once owned by Spiller that's probably going to be demolished.  As I recall, the Spiller-Mackereth building was next door to this one.   I don't have a picture of the other one, so this one will have to do. 

I might add that the story's a great one because it details the deliberations of the current owner (a church) about how they could make productive use of the property.  A long-term lease won't do for them, because it would tie up the property too long; a shorter lease won't give the prospsective tenants enough time to realize their investment in the property.  The church is concerned about treating the future generations fairly--a topic that I understand has been under discusiion a lot of late at GW and elsewhere.

Alfred Brophy

December 21, 2008 | Permalink | Comments (0) | TrackBack (0)