PropertyProf Blog

Treehouses: A Growing Menace

Advocates of strong zoning controls should consider themselves on notice; The treehouse construction industry is slowly undermining the land use system.

Recently, there has been a wonderful string of news articles about confrontations between neighbors over the zoning of (really large!) treehouses (see here, here, and here). These cases illustrate all of the best things about property (how nasty disputes between neighbors turn into bitter rivalries, the difficulty of balancing rules and standards, the role of community norms, the proper role of government). But my favorite thing about these online stories is the comments left by members of the public.  They show just how much people care about local property issues. 

The picture at left is from the endearing website, www.saveourtreehouse.com, which chronicles the struggle of Scot and Mary Welch against the zoning powers of Clinton, Mississippi.  The parties spent over $50,000 on attorneys' fees, the case went all the way to the Mississippi Supreme Court, and, awesomely, the courtroom was packed during the oral argument.

Steve Clowney  

Bedbugs and the Implied Warranty of Habitability

I was recently asked whether a bedbug infestation might support an implied warranty of habitability claim.  I thought that it probably would.  A quick Google search quickly turned up a story about a New York court decision holding that a bedbug infestation would, indeed, support a claim under the IWH.  The same Google search also unfortunately turned up this post from the Rental Protection Agency website.  A person had asked the bedbug/IWH question, and had received some answers that struck me as misleading at best.  That, I suppose, is what happens when you turn to random internet forums for legal advice.

Ben Barros

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

Prefab Housing for the Homeless

Vancouver recently announced plans to construct 190 prefabricated, modular housing units on city-owned land adjacent to the Drake Hotel in the Downtown area.  It seems the units will be operated by the City of Vancouver, and used as semi-permanent housing for the city's indigent population.  As one local housing advocate stated, "When a person gets into permanent housing it's then when they can deal with their abuses and traumas in their life and become part of a community."  This article raises a number of questions. First, has Canada had a different experience with government owned housing than the U.S.?  The trend here runs strongly against project-style housing.  Second, where are the NIMBY complaints in these stories?  Finally, does small-scale, modular housing provide a long-term solution to the struggle to find affordable housing?  Could these brightly-colored, cheap ($1500 a unit) little homes become the socially acceptable SROs of the future?

For more pictures modular housing units, check out Witold Rybczynski's slideshow at Slate.

pic:  Houses designed by students at Emily Carr University of Art & Design

Steve Clowney

Lehavi on Taxing and Taking

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Strand Not Taken: The Taxing/Taking Taxonomy in American Property Law on SSRN.  Here's the abstract:

Takings jurisprudence is struggling with a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Article offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between takings and taxings. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Article is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles -- formalism of rights and strong market propensity -- but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Article explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Article shows why taxation is considered a “lesser evil” type of government coercion, how the taxing/taking dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and the control of assets.

This type of systematic inquiry is very timely. American property law is nowadays located at a crucial crossroad, with its longtime foundational premises and convictions being vigorously reexamined in the face of the domestic and global economic crisis. Although it remains to be seen whether government measures taken in the months and years to come will create a major upheaval in the fundamentals of property law, it should be clear that any such major shifts will have inevitable profound influences on what may be wrongly viewed as “isolated” legal doctrines, including the taking/taxing taxonomy.

Ben Barros

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

From bollards to bulb-outs

GOOD Magazine has a interactive graphic explaining what makes a street pedestrian-friendly.

Steve Clowney

Should We Care About Detroit?

Detroit is sick:  Unemployment has swept through the town like a grass fire.  The automobile industry continues to spiral toward collapse.  Buildings lay abandoned. Housing prices have crumpled - the median price of a home sold in Detroit in December was $7,500 (not $75,000, but $7,500). And, most worrisome, residents are leaving the city at an alarming rate.  Demographers report that Detroit has lost 50% of its population in the last half-century (the 1950 census counted 1,849,568 Detroiters. In 2000 Detroit’s population was 951,270 and still decreasing).  Should we care?  

To clarify, I’m not asking whether we should ignore the people of the Motor City.  I think most folks agree that we should work to eliminate as much human misery as possible.  Rather, I want to question whether we should be concerned about Detroit as a place?   Should the federal or state government pour emergency funds into Southeastern Michigan in an attempt to save the particular history and culture of the once proud city?  If we allow Detroit to crumble will we have lost something important?

A recent article from the New York Times about the fall and eventual re-birth of Pittsburgh suggests that there might be some long-term advantages to letting Detroit take its lumps.  The Times chronicles (rather briefly) how Pittsburgh reinvented itself after the collapse of its industrial base.  The declining population of Western Pennsylvania kept housing prices low and forced the local government to find creative ways of attracting new, more sustainable (and environmentally friendly) industries. 

Pittsburgh is, by many accounts, a more pleasant place than it was during its industrial heyday.  Does it matter that the culture of the steelworker and the resulting sense of place has been lost?

 Thoughts?

Steve Clowney