PropertyProf Blog

Disclosure of Energy Star Data in Commercial Real Estate Transactions

According to an alert by some folks at Greenberg Traurig's land development group, California will soon require the disclosure of energy efficiency data in non-residential real estate transactions: 

On January 1, 2010, owners of non-residential buildings in California will be required to disclose the Energy Star performance rating of any building that they want to sell, lease or finance when the entire building is involved in the potential transaction. This disclosure obligation was created by Assembly Bill 1103, which has received little attention from building owners, managers or commercial brokers. However, these parties need to prepare for this new obligation.

The stated purpose of the disclosure requirement is to “motivate building operators to take actions to improve their buildings’ energy profiles” and “to allow building owners and operators to compare their buildings’ performance to that of similar buildings and to manage their buildings’ energy costs.”

Ben Barros

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

Revive INS v. AP to Save Newspapers?

From an Op-Ed in the Cleveland Plain Dealer:

"If the copyright law doesn't open the way for originators of news to stop the free-riding, newspapers will die," he said. "No exceptions."

The Marburgers propose a change in federal law that would allow originators of news to exploit the commercial value of their product. Ideally, news originators' stories would be available only on their Web sites for the first 24 hours.

There is precedent for this change, David Marburger says. In 1918, the Associated Press sued International News Service for essentially the same problem now posed to newspapers by Web aggregators. INS was copying or rewriting AP stories and transmitting them by telegraph and telephone to papers in western U.S. time zones.

The Supreme Court ruled that INS engaged in unfair competition that ultimately would drive AP out of business. It enjoined INS from reproducing the AP stories, but only for a brief period while AP's dispatches had commercial value.

The court decision was diluted over time. In 1976, Congress further weakened the ruling with a new section in the copyright bill that didn't anticipate future problems of the Internet.

The Marburgers recommend amending the federal Copyright Act to provide two remedies for unjust enrichment:

• Aggregators would reimburse newspapers for ad revenues associated with their news reports.

• Injunctions would bar aggregators' profiting from newspapers' content for the first 24 hours after stories are posted.

Ben Barros

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

RLUIPA and Eminent Domain

Over at Prawfs, Nelson Tebbe has an interesting post on the impact of RLUIPA on takings of property owned by religious entities.  The post is based on an article co-authored by Tebbe and Chris Serkin titled  Condemning Religion: RLUIPA and the Politics of Eminent Domain.

Ben Barros

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

Possession in Property Law and Theory

I'm presently working on a paper on possession.  What follows is my current thinking on the different roles that possession plays in property law and theory.  Comments of any sort would be very welcome.

The idea of possession plays three important, but distinct, roles in property law and theory.  First, possession is central to theories justifying individual ownership of objects that previously had been unowned.  These theories seek to explain and defend the origin of a system of private ownership.  In Locke’s theory of property, for example, people gain ownership of objects by possessing those objects and mixing labor with them.  Initial ownership theories rest on an idea of first possession, in which the first possessor becomes the first owner of an object.

Second, the idea of prior possession lies at the heart of many property law doctrines.  Under the rule of prior possession, a prior possessor will generally have a superior claim to an object as compared to a subsequent possessor.  If formal ownership cannot be established between two claimants for the same object, the rule of prior possession states that the prior possessor will be given ownership of the object.  There are many disputes in property law about what actually constitutes possession.  For example, the famous case of Pierson v. Post involved a dispute about whether pursuit of an animal by a hunter was sufficient to establish possession, or whether the actual killing or grabbing of the animal was necessary to possess it.  All cases agree, however, that once the issue of possession is resolved, a prior possessor typically will win over a subsequent possessor.

Prior possession bears a resemblance to first possession, in that both are consistent with the maxim “first in time, first in right” and give superior claim to an object to the earliest person to lay claim to it.  First possession and prior possession, however, tend to do different types of work.  First possession is concerned with the initial ownership of an object, and in a world where there are few unowned objects, first possession is largely relevant to theoretical debates about the idea of ownership itself.  Prior possession, in contrast, is a working doctrine reflected in the operation of property law.  It assumes the big-picture normative justification of a system of private ownership, and addresses the competing claims of ownership of two possessors, neither of whom in the typical case was the first to own the object in question.  This is not to say that the rule of prior possession is without normative content – it reflects a normative position that prior possessors should have superior rights to current possessors.

Third, possession plays an evidentiary role in disputes about ownership.  Absent other evidence about ownership, current possession may create a presumption of ownership.  This evidentiary role of possession is reflected in Lord Mansfield’s famous observation that “Possession is very strong; rather more than nine points of the law.”   Despite its evidentiary significance, however, current possession plays little substantive role in property law.  If person B has current possession, and person A can demonstrate prior possession, then the rules of property law will generally operate to vindicate A’s ownership of the object.

The difference between prior possession and current possession is reflected in the basic operation of property law.  The essential function of property law is to vindicate prior rights in an object.  If B has current possession and A had prior possession or other evidence of ownership, the law will force B to return the object to A.  We could imagine an alternative set of ownership rules that protects current possession over prior possession.  This alternative ownership law would be consistent with the playground maxim “finders keepers, losers weepers.”  (Despite its popularity with the six-to-ten-year-old set, this maxim is not reflected in the actual law of finding, and the original owner or possessor does not lose ownership to the finder.).  Under this alternate ownership regime, whoever currently possesses the object would own the object.  If B has current possession and A had prior possession, the alternate approach would protect B’s possession and would not force a return to A.  This approach is exactly the opposite of the current law of property.

Ben Barros

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