Saturday, May 23, 2009

Property Regulation in Bryn Mawr

For those who are interested in popular conceptions of what it means to "own property," there's a robust discussion in the comments to this Philadelphia Inquirer story about what will happen with a mansion in Bryn Mawr.  Can the (unknown) owner of the house known as La Ronda knock it down and put up a McMansion?

To take two examples of the conflicting visions of the Constitution and property:

Does anyone understand the Constitution protects property rights? The preservation group should try to raise money and offer to buy the house, if it is so important! If they succeed, wonderful for them. If they can't, the owner can do what he wants. Preservation groups are the entities with rights, not everyone else? Come on!!

And then there is this rebuttal:

As to notion that property rights allow you to do whatever you want, get real: do they have the right to put a trash-to-steam plant or an oil refinery there? The right to store nuclear waste there or build a 7-11, a go-go bar, or Home Depot? No. If actions on your property come at the expense of others, then we resolve them through our common government (see constitution). The real question is what does the community lose when it loses its historic structures? If the homes/ infrastructure of Bryn Mawr looked the same as those of Moorestown or Cherry Hill - then they would be worth 1/2 their present value. By how much will this damage the unique brand of "Bryn Mawr" and reduce its value? The overall property value of the area is at risk and Bryn Mawr's elected officials have an obligation to protect it.

Al Brophy

Comments are held for approval, so they will not appear immediately.

May 23, 2009 | Permalink | Comments (0) | TrackBack (0)

The Poet of Property

We've spoken before about property poetry--about poetry of a meadow, about a poem for Virginia's Natural Bridge by John Thompson, editor of the Southern Literary Messenger, and about William Cullen Bryant's Ages.

Now I see that the New York Times has a story entitled "The Poet of Property"--it's about Valerie Haboush,  who writes real estate ads.  Not quite poetry in the William Cullen Bryant meaning, but certainly quite important.

Al Brophy

May 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2009

The Advantages of Take-Home Exams

In my first-year Property class, I always give closed-book, in-class exams.  In part, this is because of the nature of the Property class -- it is an introductory survey, and I am testing on the students' understanding of basic material.  This semester, I taught Real Estate Transactions for the first time.  Although this course has a survey aspect to it, I focused a lot on advising clients on legal and non-legal risks.  Because of this different approach, I decided to give a take-home exam for the course.  Here were the two big essay questions:

(1)  Early in the semester, we discussed the respective roles of attorneys and real estate brokers in real estate transactions.  Considering what we’ve learned over the remainder of the semester, what do you think the respective roles of attorneys and brokers should be?  Why?  (700 words).

(2)  You are a practicing real estate attorney.  Nancy Preston is an occasional client of yours.  She dabbles in real estate, buying or selling a property every year or two.  Getting into the office one day, you get the following voicemail from Nancy:  “Hi, it’s Nancy.  I’m thinking about buying a property out by the airport.  I haven’t seen it yet.  It is about 150 acres, mostly vacant.  There is a farmhouse near Route 43.  Joe Jordan currently owns the property.  Marty Condon is acting as his broker.  Marty told me that Joe would sell it to me for $750,000.  That’s $5,000 per acre, which is a pretty good price for that area.  He said that if I wanted to get the property, I’d have to buy it quickly, and that he’d give me a quitclaim deed, whatever that is.  He also said that there are some power line easements over the property.  Give me a call and let me know what you think.”  Describe the advice that you would give Nancy when you call her back.  Think broadly, and address both legal and non-legal risks.  Also think about the questions you would ask her.  (1,500 words).

Both questions are very open-ended.  It is possible to give this sort of question in an in-class exam, but I've found that the time pressure leads to so-so answers.  With a take-home exam, the students had plenty of time to think through each question.  I was especially happy with my students' answer to question (2).  They were very creative, and reflected a good understanding of the legal and non-legal issues that we discussed in the class.  They also reflected a good understanding of a big part of the lawyer's role in a transaction, which (in my view) is to advise the client of risks and risk mitigation strategies.  As an added bonus, the question put the students in a relatively realistic position, reacting to some vague input from a client.  In the context of this kind of upper-level elective, I was very happy with the take-home format.

Ben Barros

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

May 22, 2009 in Real Estate Transactions, Teaching | Permalink | Comments (2) | TrackBack (0)

Berger on Lessons Learned From Measure 37

Bethany Berger (U. Conn.) has posted What Owners Want and Governments Do - Evidence from the Oregon Experiment on SSRN.  Here's the abstract:

In 2004, Oregonians approved ballot Measure 37 by 61% to 39%. The measure answered the calls of critics of contemporary takings jurisprudence by requiring either compensation for losses caused by land use restrictions imposed after acquisition of the property or waivers of the restrictions. Three years later, voters acted to repeal most of Measure 37 by an even greater margin. Together the birth, brief life, and rapid demise of Measure 37 comprise an unusual natural experiment in property law. The results of this experiment go to the heart of debates about regulatory takings in property law and policy.

First, the Oregon experience resulted in a sea change in owners’ understandings of property rights. The 2004 vote reflected the popular understanding of land use restrictions as invasions of property rights. Faced with effective repeal of those restrictions, as reflected in passionate testimony before the Oregon legislature, Oregonians came to see the regulations as in fact the source of the property rights upon which they depended. In effect Measure 37 brought the background government and community support on which property rights depend into the foreground of owners’ consciousness. Second, government responses to Measure 37 challenged arguments that compensation will dispel the fiscal illusion under which governments operate and result in more efficient regulation. Rather than weigh costs and benefits, in all but one of thousands of cases, the government waived the regulations rather than compensate. These decisions were made without analysis of the benefits of the regulations waived, and despite predictably negative results. Finally, the thousands of claims and research catalyzed by these claims complicated questions of the compensation to which owners are justly entitled.

While limited, therefore, the Oregon experiment provided valuable grounded evidence for the continuing debate about takings law and the ways that property mediates the relationships between individuals, communities, and the state.

Bethany has written before on Measure 37, and this latest piece is a very important addition to the takings literature.  Many participants in takings debates assert that property owners want less regulation.  As the passage of Measure 37 showed, these assertions have strong grounding in fact.  But when Oregon property owners got what they asked for, they realized that they were better off with the regulations.  Or, put another way, what property owners really want is for their land to be free of regulation, but for their neighbors to be regulated.  Forced to choose between the two, they ultimately went with regulation.

Ben Barros

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

May 22, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2009

The Intersection of Federal Law and Homeowners Association Regulations

According to fox news, "U.S. Rep. John Boccieri introduced a bill Thursday that would ban neighborhood or homeowners associations from restricting the flying of service flags."  The full story is here.

Al Brophy

May 21, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2009

Promotion of American Homeownership

At the City Journal, Steven Malanga has an excellent story on the history of government promotion of homeownership in America.  A taste:

In December, the New York Times published a 5,100-word article charging that the Bush administration’s housing policies had “stoked” the foreclosure crisis—and thus the financial meltdown. By pushing for lax lending standards, encouraging government enterprises to make mortgages more available, and leaning on private lenders to come up with innovative ways to lend to ever more Americans—using “the mighty muscle of the federal government,” as the president himself put it—Bush had lured millions of people into bad mortgages that they ultimately couldn’t afford, the Times said.

Yet almost everything that the Times accused the Bush administration of doing has been pursued many times by earlier administrations, both Democratic and Republican—and often with calamitous results. The Times’s analysis exemplified our collective amnesia about Washington’s repeated attempts to expand homeownership and the disasters they’ve caused. The ideal of homeownership has become so sacrosanct, it seems, that we never learn from these disasters. Instead, we clean them up and then—as if under some strange compulsion—set in motion the mechanisms of the next housing catastrophe.

And that’s exactly what we’re doing once again. As Washington grapples with the current mortgage crisis, advocates from both parties are already warning the feds not to relax their commitment to expanding homeownership—even if that means reviving the very kinds of programs and institutions that got us into trouble. Not even the worst financial crisis since the Great Depression can cure us of our obsessive housing disorder.

Ben Barros

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

May 20, 2009 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2009

Lueck, Tennyson, and Geddes on Married Women's Property Acts

Dean Lueck (Arizona), Sharon L. Tennyson (Cornell), and Rick Geddes (Cornell) have posted Determination of the Dates of Passage of the Married Women's Property Acts and Earnings Acts on SSRN.  Here's the abstract:

The purpose of this document is to analyze and record the dates of passage of state-level acts in the United States that granted married women the right to own and control property separate from their husbands, and the date of passage of acts granting married women the right to own their market earnings. The first of those rights was granted through what has been termed the married women's property acts (MWPAs), while the second was granted through earnings acts (EAs). These acts were passed in most states between 1848 and 1920, and have been credited with weakening the common law doctrine of coverture. The document carefully examines, and quotes, state-by-state, the laws granting married women those two types of property rights. It provides an explanation for each date chosen.

Ben Barros

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

May 19, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Craig on Western Public Trust Doctrines

Robin Kundis Craig (Florida State) has posted A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust.  Here's the abstract:

This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines – emphasis on the plural – in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common law. Moreover, as with other forms of common law, states have evolved their public trust doctrines in light of the particular histories, perceived needs, and perceived problems of each state.

This Article notes that, in the West, four factors have been most important in the evolution of state public trust doctrines: (1) the severing of water rights from real property ownership and the riparian rights doctrine; (2) subsequent state declarations of public ownership of fresh water; (3) clear and explicit perceptions of shortages of water, submerged lands, and environmental amenities; and (4) a willingness to raise water and other environmental issues to constitutional status and/or to incorporate broad public trust mandates into statutes. From these factors, two important trends in western states’ public trust doctrines have emerged: (1) the extension of public rights based on states’ ownership of the water itself; and (2) an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems and the public values that they provide.

The Article includes an extensive Appendix that summarizes each of the 19 states’ public trust doctrines. These summaries include relevant constitutional provisions, statutory provisions, and cases.

Ben Barros

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

May 19, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)