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Friday, February 29, 2008

Right to Sunlight in California

From CNN:

In an environmental dispute seemingly scripted for eco-friendly California, a man asked prosecutors to file charges against his neighbors because their towering redwoods blocked sunlight to his backyard solar panels.

But the couple next door insisted they should not have to chop down the trees to accommodate Mark Vargas' energy demands because they planted the redwoods before he installed the solar panels in 2001. . . .

After more than six years of legal wrangling, a judge recently ordered Richard Treanor and his wife, Carolyn Bissett, to cut down two of their eight redwoods, citing an obscure state law that protects a homeowner's right to sunlight.

The couple does not plan to appeal the ruling because they can no longer afford the legal expenses, but they plan to lobby state lawmakers to change or scrap the law.

The Solar Shade Control Act means that homeowners can "suddenly become a criminal the day a tree grows big enough to shade a solar panel," Treanor said.

The case marks the first time a homeowner has been convicted of violating the law, which was enacted three decades ago, when few homeowners had solar systems.

The law requires homeowners to keep their trees or shrubs from shading more than 10 percent of a neighbor's solar panels between 10 a.m. and 2 p.m., when the sun is strongest. Existing trees that cast shadows when the panels are installed are exempt, but new growth is subject to the law.

Ben Barros

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February 29, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Levitt Bankruptcy

800pxwelcome_to_levittown_sign NPR has an interesting story on the bankruptcy of Levitt and Sons, the firm that developed Levittown.  The story also discussed the impact of the bankruptcy on buyers in a Levitt project in Florida:

Among those customers is Bill Quattrocchi, who lives in Tradition, a big development for active seniors — those 55 and older — in Port St. Lucie, along Florida's Atlantic Coast. As he drives a golf cart through the neighborhood, he notes a road that "was supposed to lead to a clubhouse."

"It leads to nowhere," Quattrocchi says as he drives along. "They never completed this road to the other section."

While other builders are still selling houses in Tradition, Quattrocchi and his neighbor, Bob Wilson, have the misfortune of living in a section developed by Levitt and Sons. It's a neighborhood where all construction stopped after Levitt declared bankruptcy; out of 1,200 planned homes, only 90 are currently occupied.

Quattrocchi wheels his golf cart through an area where residents live across the street from half-finished houses. He notes that "available" signs have been removed from the fronts of the homes.

Wilson points to a row of empty houses. He says in some cases the homeowners were foreclosed; in others, the buyers "just walked away." . . .

[T]here's another group of Levitt customers who also are bitter at how they've been treated: those who put $40,000 and $50,000 deposits down on a Levitt home. Jerry Greenfield is one of them: He put down $45,000 on a Levitt home at Tradition and included another $25,000 for upgrades. When he heard about the bankruptcy, he figured his deposit was protected because he had put it in an escrow account.

"I felt that, jeez, I don't have a problem here," Greenfield says. He expected to get a refund for his deposit. But he soon found out it's not quite that easy.

That's because Florida law allows a builder to access money in an escrow account if it provides a bond. Greenfield had to hire a lawyer and is now working to recover his deposit from the bonding company. And that's just the deposit — he doubts he'll ever see the $25,000 he paid Levitt for upgrades.

Greenfield says he's learned that, among the dozens of people who had deposits with Levitt, he's one of the fortunate ones. Most didn't put their deposits in escrow.

Ben Barros

[Levittown Photo from Wikicommons]

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February 29, 2008 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2008

Late 1800's San Francisco Spite Fence

I have a thing for spite fence cases.  My Mom sent along a link to this 1902 story (with photos) about a great spite fence (40 feet tall!!!) in San Francisco's Nob Hill neighborhood.  As an added bonus for propertyprofs, the story involves a land assembly issue:  the spite fence was put up around a holdout.  Some excerpts:

The Yung lot is the only portion of the block bounded by California, Taylor, Sacramento and Jones streets which Charles Crocker was unable to secure, when he erected his mansion there. Nicholas Yung, who was in the undertaking business and who was comfortably fixed, although not wealthy, preferred to stay in his Nob hill home. He and his family enjoyed the view and the other advantages of the situation as much as did Crocker, and he saw no reason why he should trade his residence for some other property which Crocker offered him, and emigrate. Crocker was willing to give him $6000, but we would not sell, even when the blasting on the Crocker site sent rocks flying around his house and the grading left his place up in the air. Finally Crocker threatened to fence in the Yung home, and at last Yung said he would sell for $12,000. Crocker refused to pay that sum, and carried out his threat to put up the fence. Yung did not consider the price he asked exorbitant, it being said that Flood paid $25,000 for a similar lot when he wished to get a complete block on Nob Hill.  . . .

The fence cost about $3000, but Crocker was a millionaire and did not mind the expense, and he had the satisfaction of driving the Yung family away from their home. Their house was boxed up and the sunlight shut out, and Yung was compelled to move the dwelling to another lot which he owned on Broderick street. The tall fence destroyed the value of the Sacramento street lot, which for about a quarter of a century has remained unused and unsightly. . . .

Ben Barros

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February 28, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2008

Barros on Property and Freedom

I've posted Property and Freedom on SSRN.  Here's the abstract:

Private property is often defended on the basis that it promotes individual freedom. Discussion of this subject has typically taken place in the context of contentious debates over the legitimacy of government interference with private property, especially government regulation of land use and redistributive taxation. Pro-property, anti-interference advocates tend to suggest that there is a strong relationship between property and freedom. Those on the other side of the debate tend to be more skeptical. The political philosopher G.A. Cohen, for example, has asserted that "the familiar idea that private property and freedom are conceptually connected is an ideological illusion."

In this Essay, I argue against both sides of this intractable debate. Property and freedom are inextricably linked, but a strong relationship between property and freedom does not immunize property from government interference. To support these positions, I shift the discussion of property and freedom away from debates about the inviolability of property, and focus instead on the institutional relationship between property and freedom. Accordingly, I focus on two questions that have often been neglected in the heat of the debate over government interference with property: to what degree does the institution of private property protect individual freedom, and to what degree is individual freedom possible without the institution of private property?

Property as an institution promotes individual freedom in three ways: by creating a zone of individual autonomy and privacy; by distributing power; and by providing access to the resources that people need to be free. The discussion of these institutional connections between property and freedom draws out three important substantive points. First, individual freedom depends, in an institutional sense, on private property. Second, because the relationship between property and freedom is complex, different types of property (e.g., land versus money) and different aspects of property ownership (e.g., the ability to exclude others versus the ability to transfer to another owner) promote freedom in different ways. Third, and most importantly, the relationship between property and freedom in this context may be used to support, rather than oppose, arguments for the redistribution of property. Indeed, a strong connection between property and freedom can be maintained without any reference whatsoever to libertarian or other theories that hold that property rights should be immune from state interference.

Using these relationships between property and freedom, I then critique two of John Rawls's positions on property. Rawls asserted that the basic liberties protected by his First Principle of Justice include the right to hold personal property, but not productive property; and that either a property-owning democracy or a liberal socialist regime could comport with his two principles of justice. In my critique of Rawls, I first explain why the concept of freedom embodied by the First Principle of Justice provides a better defense of private property than the inequality allowed by the so-called difference principle in the Second Principle of Justice. I then use the connections between property and freedom discussed earlier in the Essay, and Rawls's own positions on freedom, to argue that Rawls's positions on property are wrong, that the First Principle must include the right to hold productive property, and that therefore only a property-owning democracy would satisfy the requirements of the two principles of justice.

I'll be blogging about some of the subjects in the essay, especially the parts about Rawlsian property, over the next couple of weeks.  Comments are very welcome.

Ben Barros

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February 26, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2008

Turnipseed on Deathbed Marriages

Terry L. Turnipseed (Syracuse) has posted How Do I Love Thee, Let Me Count the Days: Deathbed Marriages in America on SSRN.  Here's the abstract:

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from marriage?

In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible, does it not? The expectant heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is the only person who has absolutely no motivation to do so.

How did this rule come about? What, if anything, should we do to change it?

This article explores these and other related questions, including a proposed theoretical framework for a model act giving heirs and beneficiaries standing to sue in order to negate the property consequences that flow from marriage, depending on the level of mental capacity at the time of the marriage.

Individuals on their deathbeds have just as much right to marry as anyone, and if competent and under no duress, the parties to the marriage certainly should have protection under the law. Protection should be appropriately shaped to avoid harassment of widows and widowers.

However, I simply cannot see a valid argument for denying a decedent-spouse's heirs (those who would take the decedent's property if he or she died unmarried and intestate) and beneficiaries (those who would take under the decedent's valid will, if any, absent a spousal election) the right to challenge the property consequences of a suspect marriage, especially when that challenge is based on traditional grounds that might naturally flow from a deathbed marriage.

Ironically, a decedent on their deathbed may not have the legal capacity to enter into a contract but can get married. It is only reasonable that these poor people and their heirs and beneficiaries should have state protection against a surviving spouse taking some or all of the decedent's property. Protection of heirs and beneficiaries is necessary where a surviving spouse may have few legitimate motives for entering into a deathbed marriage, particularly in light of the surviving spouse's ability to take some or all of the decedent's property.

The current incentives are off kilter. A greedy potential spouse has every incentive to find a minister or officer of the law willing to marry them off to a wealthy sick person and no legal incentives not to try it. No matter how ugly the situation, a marriage becomes set in stone with no person other than the surviving spouse allowed standing to seek redress in a court of law upon the death of one of the spouses. Allowing, in an appropriate way, heirs and beneficiaries to challenge the property consequences of a suspect marriage puts in place the proper disincentives before attempting to take advantage of one of feeble mind and spirit.

If these property consequences are allowed to stand, victims will continue to abound in deathbed marriage situations where consent is lacking: the decedent, her family, and society generally. Just imagine how you would feel losing an expectancy in such circumstances.

Ben Barros

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February 25, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, February 24, 2008

Nelson on Fairness and Priority in Foreclosure Purchases

Grant Nelson (Pepperdine) has posted The Foreclosure Purchase by the Equity of Redemption Holder or Other Junior Interests: When Should Principles of Fairness and Morality Trump Normal Priority Rules? on SSRN.  Here's the abstract:

This article explores an issue that is uniquely suited to Dale Whitman's powerful analytical mind and his intuitive moral and ethical sensibilities - when should the core maxim of mortgage law, namely that a properly conducted foreclosure of a senior lien terminates junior interests - yield to higher principles of fairness and morality? When the holder of the equity of redemption directly or indirectly purchases at either a mortgage sale or tax sale, survival or revival of junior liens and other junior interests is the norm. This is the case even though time-honored foreclosure principles dictate that a valid foreclosure produces a title free and clear of junior interests. In this situation, compelling concepts of morality, fairness and the prevention of unjust enrichment overcome a strong presumption that normal lien priority rules should govern. Overall, courts and the Restatement reach the correct result in this context. On the other hand, when the purchaser at a tax sale is a mortgagee or other junior interest, courts improperly invoke morality and fairness concepts to justify survival and revival. Here the purchaser does not act unethically and there are no valid moral or fairness arguments for departing from normal priority rules, so modern courts should follow the Restatement approach.

Ben Barros

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February 24, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)