Friday, October 23, 2009

The History of Pierson v. Post

Daniel R. Ernst (Georgetown) has a fantastic summary of the recent scholarship on the history of Pierson v. Post in the Green Bag.

Ben Barros

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October 23, 2009 in Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 19, 2009

The Creed in the Deed

Ralph Waldo Emerson said as a part of his eternal wisdom: "go put your creed into the deed, nor speak with double talk."  Apparently, some people took Waldo (as he affectionately preferred to be called) seriously -- (Ok, so the groups that undertake this practice are very unlikely to draw wisdom from a transcendentalist, but hey, its a good hook).  Cane Ridge

During the late 19th century and continuing until even recently, at least one American church group included in its property deeds certain creedal statements of faith.  Here is one example: 

"To have and to hold the aforementioned real estate with all the appurtenances and hereditaments "hereunto belonging or any wise appertaining unto the said trustees for the (Name) Church of Christ, its heirs and assigns in fee simple forever.

"Included in the deed and expressly made a part of the conveyance are the purpose and limitations for which the lot hereinbefore described was purposed, to wit: to be used by the said (Name) Church of Christ for as long as the following practices of worship and work by the said (Name) Church of Christ are maintained.

    1. The Holy Scriptures shall be taught and accepted as the final, all-sufficient revelation from God to man, and regarded as an infallible rule of faith and practice.
    2. Mechanical instruments of music shall never be permitted to be brought on to the premises, for the purpose of being used in worship, or for any other purpose, use or design.
    3. No teacher or preacher shall be allowed use of the building, its premises, and grounds for the purpose of advocating any doctrine or practice which conflicts with the teaching and practice of the (Name) Church of Christ as taught in the Bible and as currently held by the elders, trustees, or members responsible for the execution of this deed. Expressly excluded from such use are any and all teachers, preachers and others who hold to any form of liberalism, modernism, or premillennialism, along with all hobby-riders, factionists and divisive persons, who advocate any doctrine or practice in conflict with the teaching and practice now current in said (Name) Church of Christ.

"After such a time the property shall be held in trust for such members only which remain faithful to the purposes for which this conveyance is made, and for no others; and, when there are no others, the property shall revert to the (Neighboring) Church of Christ, now meeting at (address)."

A couple of comments.  Isn't amazing the intersection of our deeply held values with the tangible things we hold.  This strikes me as very similar to the article Al Brophy wrote several years ago on covenants against Yankees: Whistling Dixie: The invalidity and unconstitutionality of covenants against yankees,10 Villanova Environmental Law Journal 57. One of the covenants uncovered by Brophy and Gnosh in that article was this one: 

The property shall never be leased, sold, bequeathed, devised or otherwise transferred, permanently or temporally, to any person or entity that may be described as being part of the Yankee race. "Yankee" . . . shall mean any person or entity born or formed north of the Mason-Dixon line, or any person or entity who has lived or been located for a continuous period of one (1) year above said line.

Brophy's account traces the unlikely tale of a recent southerner who had not forgotten the war (at least as late as 1998) who attempted to enforce a covenant against yankees in the sale of certain property in Georgia. Like this case, certain church members used the courts (or so I am told) to enforce these creeds against apostates of the faith. Church folk, like Southerners after the war, are greatly invested in their larger normative beliefs, and for some, the best way of expressing it is through the material intrusions of this world -- like property.(Ever wonder why the Catholics and Lutherans disagreed so adamantly in the sixteenth century -- whether the bread and the wine actually became the body and blood of Christ (transubstantiation) or whether it only spiritually became the body and blood of Christ (consubstantiation)). The fact that the idea of the South became a spiritual idea, as Robert Penn Warren wrote, rather than a geographic one after the war, makes the analogy even more appropriate.  Some people just want their religion to touch real dirt. 

And perhaps the law is willing to give a little to allow these covenants to exist.  Brophy notes in his part that the covenant against Yankees may be preserved if the potential owner accedes to the seller's demands to take a loyalty oath to the south.  But, likely the restraint is unenforcible even with an oath.  Again, Brophy: 

Mr. Ingram's offer to allow Yankees to purchase the property if they take a Southern loyalty oath may offer some hope of saving the covenant from invalidation. Even with the dispensation for those Yankees willing to take the oath, a direct restraint on alienation remains, which may be invalid. That is, the oath may not sufficiently free the land from the covenant's restraint on alienation. The oath is difficult to police, which will counsel against enforcement through injunction.

So here's the lesson.  Go ahead and take the apostate down to the river to be baptized -- but don't expect that the deed will prevent him from defying the creeds of the church. 

As a matter of full disclosure, I grew up since I was twelve in Church's of Christ.  My wife and I now belong to a denomination that traces its roots to the same movement that spawned Church's of Christ, but is more socially progressive and theologically ecumenical (the Christian Church, Disciples of Christ).  The selection above is from a book written by a Church of Christ minister, Cecil Hook, titled Free as Sons, in which is describes the Creed in the Deed as being against faithful discipline.  I know of no instance as Cecil describes in which Churches actually litigated their creeds, though I also have no reason to dispute his claim. If you are aware of any examples, I would love to know about them, as well as any other instances of faith bodies utilizing their deeds to inject their creeds. 

Marc (MLR)

The Image is of the building at Cane Ridge, where the Cane Ridge Revival took place in 1801, spawning the American Restoration Movement.   

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October 19, 2009 in Land Use | Permalink | Comments (0) | TrackBack (0)

Atuahene on Property and Social Transformation

Bernadette Atuahene (Chicago-Kent) has posted Property Rights & the Demands of Transformation on SSRN.  Here's the abstract:

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classic conception of property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and can serve as a sanctuary for enduring inequality. This is particularly true in countries where ownership is contested and land reform is essential due to pervasive past property theft. Oddly, the classical conception is flourishing in transitional states, like South Africa and Namibia, where transformation of the property status quo is essential. The specific question this Article addresses is: for states where past property dispossession threatens to destabilize the current state, is the classical conception appropriate or do these states require an alternative conception of real property? In this Article, I develop the transformative conception of real property to explore how the exigent need for societal transformation should inspire us to rethink property rights.

Ben Barros

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October 19, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Material Girl ... Soon To be Homeless?

Just last week I gave my property students a practice problem about "purple pain for Prince's landlord." (You never know when a propertyprof post from years and years ago will come in handy).  Now I see that Madonna's being sued by a neighbor (in the Dakota?) for disturbing her neighbors.  Sounds like the makin's of a great class discussion.

Another case that could be in the law of people magazine, no doubt.

October 19, 2009 | Permalink | Comments (1) | TrackBack (0)

Sunday, October 18, 2009

DiLorenzo on Equity Stripping

Vincent DiLorenzo (St. John's) has posted Mortgage Market Deregulation and Moral Hazard: Equity Stripping Under Sanction of Law on SSRN.  Here's the abstract:

This article examines the failure of the current regulatory structure to adequately protect consumers against risks in a home mortgage lending market characterized by complexity and limited transparency. It explores the reliance of bank regulators, particularly the Federal Reserve Board, on market discipline to control risks and the failure of market discipline. It also explores the Federal Reserve’s view that market intervention is only justified based on net societal benefits. This is a viewpoint that prevented regulatory intervention until the financial sector was in crisis, and a viewpoint that is at odds with the view of the Congress. This article urges a rejection of the net societal benefits standard as the determinant of regulatory intervention in the mortgage market.

Ben Barros

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October 18, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Reiss on Landlords of Last Resort

David J. Reiss (Brooklyn) has posted Landlords of Last Resort: Should the Government Subsidize the Mortgages of Privately-Owned, Small Multifamily Buildings? on SSRN.  Here's the abstract:

The absence of stable financing options has long caused difficulties for owners of small multifamily buildings. Despite the ongoing maturation of a secondary mortgage market for small multifamily mortgages, this housing stock continues to shrink due to abandonment, demolition, foreclosure and other causes. As these buildings house many low-income households, some have suggested subsidizing the financing costs for the owners of these buildings. Any proposal to subsidize these landlords to meet affordable housing goals, however, should be predicated on determinations that (i) it is an efficient means to provide housing to the neediest tenants and (ii) the multifamily mortgage market is subject to failures that make such government intervention appropriate.

This article first describes what little is known about small multifamily properties and their owners. It then describes the lending environment for real estate entrepreneurs over the last hundred years. Finally, it evaluates the role the government should play in the small multifamily mortgage sector. The article concludes that subsidizing owners of small apartment building is an inefficient and unwarranted affordable housing policy and that more direct subsidies to low-income households, such as housing vouchers, are preferable.

Ben Barros

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October 18, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)