PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, April 24, 2010

The Extraordinary Story of Dr. Karel Des Fours Walderode, Part II

When we last left off, our protagonist Dr. Walderode was a citizen and permanent resident of the newly created Czech Republic.  [For those keeping score, his family estate in Bohemia had, by this time, been situated at different times in six different countries, and controlled at various points by an empire, a fascist dictatorship, a communist dictatorship, and -- on 3 occasions -- a republic].

In 1992, having met all the conditions for restitution of property seized under the Benes Decrees, Walderode filed his claim for restitution of his family estate, parts of which were now owned by 4 Czech state agencies, one town, and several private companies.  And that, believe it not, was when things started to get really complicated. 

Walderode's petition for restitution was a political hot potato, and then-Prime Minister, now President Vaclav Klaus, who is notoriously against restitution claims under the Benes Decrees, decided to enter the fray.  He sent a "legal opinion" to the relevant agencies, stating that Walderode's claim was "legal" but "unacceptable."  Nevertheless, for a time Walderode was successful: the Czech Central Land Office granted his petition, and he took possession of his lands in September 1993.

But opponents of the restitution did not give up.  For two years they kept up the political pressure, and finally in November 1995 the Central Land Office annulled its previous decision and the petition was re-opened.  In February 1996, the Czech parliament passed what was popularly known as "Lex Walderode," amending the restitution law to require that claimants could demonstrate uninterrupted Czech citizenship from the time their property was seized under the Benes Decrees.  Because Walderode's citizenship was revoked by the Communists when he went into exile, he could no longer meet the conditions for restitution.  At age 92, Walderode lost his property again.

That year, he took his case to the UN Human Rights Committee; by the time it issued its opinion in his favor in 2001, he was already dead.  The Czech government did not re-open the case. 

Walderode's surviving spouse, Dr. Johanna Kammerlander, is a lawyer and has continued to fight for restitution of the estate.  In September 2008, the Czech Supreme Court found in her favor -- with regard to about a half acre of forest.  But the precedent set in that case is expected to lead to the return of much of the estate.  

We'll have to see what happens: the extraordinary story isn't finished yet.   

Mark Edwards

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April 24, 2010 in Miscellaneous, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, April 23, 2010

The Extraordinary Story of Dr. Karel Des Fours Walderode

If the history of the 20th century in Europe could be encapsulated in the life of one man, that man might be Dr. Karel Des Four Walderode. 

He was born in 1904 and died in 2000, and his life sat at the intersection of the social and political upheaval that radically transformed, and re-transformed, and re-transformed again property rights in Europe.

Of French and German descent, he was born in the Kingdom of Bohemia, then part of the Austro-Hungarian empire, where his wealthy family had lived since the 17th century and owned, among other property, vast estates and a castle.  Until age 14 he was a citizen of the Austro-Hungarian empire.  But the Austro-Hungarian empire ceased to exist in 1918 with the reformation of Europe following World War One.  Walderode found himself situated in the newly formed Czechoslovak Republic, of which he was now a citizen.

In 1939, Germany invaded and occupied the parts of the Czechoslovak Republic it had not already grabbed under the Munich Agreement of 1938.  Germany dissolved the Czechoslovak Republic, and proclaimed the creation of a new state: the German Protectorate of Bohemia.  Walderode now found himself not only living in the German Protectorate of Bohemia, but also declared by Germany a German citizen, because his first language was German. 

In 1945, with the defeat of Germany, the German Protectorate of Bohemia ceased to exist.  The Czechoslovak Republic came back into existence.

The restored democratic Czechoslovak government under Edvard Benes issued what are now known as the Benes Decrees.  Under the Benes Decrees, people of German descent were presumed to have aided the German occupation.  As a result, they had their property confiscated without compensation, had their citizenship revoked, and were expelled from the country (although expulsion is not required under the Decrees, people who lost their citizenship were in fact expelled).   If, however, people of German descent could prove their loyalty to the Czechoslovak Republic during occupation, they could retain their citizenship and stay in the country.  Walderode was one of the very few able to prove that he remained loyal to the Czechoslovak Republic during the occupation (even though he had been conscripted for a year into the Wehrmacht), so he retained his Czechoslovak citizenship and was not expelled.  However, he still lost his property rights in his family's estates.  [You can read more about the seizures of property and expulsions under the Benes Decree in this excellent article by Timothy William Waters].  

In 1948, the Communists seized power in the Czechoslovak Republic, eventually renaming the country the Czechoslovak Socialist Republic.  Walderode was forced into exile by the Communists, who didn't care for his privileged lineage and most certainly were not impressed by that fact that he had recently proven his loyalty to the democratic government that they had just overthrown.  When he went into exile, the Czechoslovak Socialist Republic revoked his citizenship.

In 1991, after democratic government had been restored, he returned to a country now named the Czechoslovak Federative Republic and settled in Prague.  He was made a Czechoslovak citizen again in 1992.  Also in 1992, the Czechoslovak Federative Republic passed a law for the restitution of agricultural and forest property seized under the Benes Decrees, provided the claimant could demonstrate: (1) he had been a citizen at the time the property was seized; (2) he was now a permanent resident of the country; (3) he was loyal during the German occupation; and (4) he was a citizen at the time he submitted his claim for restitution. 

6 months later Czechoslovak Federative Republic itself ceased to exist, with the creation of separate Czech and Slovak Republics.  Walderode now found himself living in the Czech Republic.  The Czech Republic retained the restitution law.  Walderode met all four of the conditions for restitution, and so submitted his claim.  But . . .  .

What happened next will appear in Part II of this post!

Mark Edwards

April 23, 2010 in Miscellaneous, Takings | Permalink | Comments (3) | TrackBack (0)

Wednesday, April 21, 2010

Salkin on Renewable Energy and Land Use Regulation Parts I and II


Patricia Salkin (Albany) has posted Renewable Energy and Land Use Regulation (Part 1) and Renewable Energy and Land Use Regulation (Part 2) on SSRN.  Here are the abstracts:

Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Ben Barros

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April 21, 2010 in Land Use, Natural Resources, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Chiappetta on The Practical Meaning of Property

Vincent Chiappetta (Willamette) has posted The (Practical) Meaning of Property on SSRN.  Here's the abstract:

The paper argues that defining property functionally – as a flexible tool for implementing all manner of social decisions allocating control over available resources rather than in terms of fixed attributes or outcomes – substantially clarifies related public policy debate. The approach reveals we should reject characterizations of property as “good or bad” or as a “yes-or-no” proposition to which we react as well as the assumption that those with whom we disagree about its proper deployment are fools badly in need of enlightenment, or worse. These false dichotomies distract us from the core difficulty in property debate – our honestly and strongly held but conflicting beliefs regarding what constitute “just” resource control outcomes; a disagreement we should acknowledge cannot be fully resolved by reason, much less passion. Finally, the functional approach keeps us resolutely focused on the practical effects of our respective normative positions and, in particular, on the consequences if the resulting property rules fail to adequately “deliver the goods” to all concerned. When a society’s property law does not produce “enough and good enough for all” those suffering the adverse effects must ultimately abandon the joint enterprise, a process history shows to be both unpleasant and unpredictable regarding winners and losers (if those terms can be said to apply at all). This practical distributional inquiry does not (and cannot) mandate individual or group action, but it does merit serious consideration every time we find ourselves debating how “best” to use property law to allocate control over increasingly scarce and contested resources.

Ben Barros

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April 21, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

Hudson on The Public Trust and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand on SSRN.  Here's the abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Ben Barros

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April 20, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Singer on Original Acquisition of Property

Joseph William Singer (Harvard) has posted Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity on SSRN.  Here's the abstract:

First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.

Ben Barros

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April 20, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sandercock and Lebovits on NY Landlord-Tenant Law

Margaret B. Sandercock and Gerald Lebovits (St. John's) have posted New York Residential Landlord-Tenant Law 101 for the Transactional Attorney on SSRN.  Here's the to-the-point abstract:

This article discusses the basics of New York residential landlord-tenant law for the transactional attorney.

Ben Barros

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April 20, 2010 in Landlord-Tenant, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Town Can't Close Road at Border

A town in Connecticut tried to close a road at the town line to prevent the road from being used for access to a major residential development in the adjoining town.  No way, said the Connecticut Supreme Court.  From the Hartford Courant:

The town of Hebron has no right under state law to close one of its roads at the town line just to cut off access to a proposed residential development in a neighboring town, the state's highest court has ruled.

In a unanimous opinion written by Chief Justice Chase T. Rogers and released Monday, the state Supreme Court determined that the Hebron Board of Selectmen exceeded its authority when it voted in 2005 to block access to Wellswood Road at the Columbia town line.

Among the reasons the selectmen had cited for closing the road was to protect it and the neighborhood from excess traffic from the proposed development in Columbia. That, however, and Hebron's stated concerns about traffic safety and determining which town will provide emergency services to the development were not sufficient reason, the justices concluded.

"We agree that Hebron has the power to build roads within the limits of the town," Rogers wrote. "That does not mean, however, that it has the power to close roads at the town border for the sole purpose of preventing residents of adjoining towns from using town streets."

H/T Matt Berger

Ben Barros

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April 20, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)

Legal Education and the Housing Bubble

Over at the Conglomerate Blog, Christine Hurt (Illinois) has an interesting post comparing law school debt to the sub-prime mortgage market.  Here's a taste:

For a couple of decades now (and until a few years ago), the conventional wisdom was that real estate would always rise in value and that the world would always need lawyers.  Home ownership at whatever cost, particularly with tax-deductible interest rates, was better than alternatives such as renting; financing a law degree with student loans, some of which was low-interest and tax-deductible, was an equally good investment given the value of the law degree.  Just as something about home ownership seemed intrinsically good, so did getting a law degree, from any law school. . . .  Anyway, more and larger houses were built; more and larger law schools were built.  Then, as if on a dime, the world changed . . . .

This post was included in a flurry of recent posting at the Conglomerate about the future of lawyering and legal education.  Interesting stuff!

Mike Kent

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April 20, 2010 in Law Schools, Mortgage Crisis | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

Aesthetic Nuisance in the News

You just have to read a news story that begins like this:

They say a man's home is his castle, but does that include the right to turn it into an eyesore?

On a quiet side street south of Daytona Beach, Robert Hodges' corner house is painted randomly with purple, yellow, orange, green and pink. A toilet and rusting bike stand by a tree, old pieces of a wood deck are scattered and a large sand mound is decorated with skis, golf clubs, plastic ducks and Christmas ornaments. Criss-crossing the front yard are several clotheslines featuring boxers, a pair of hot-pink feathery skivvies and colorful extra-large bras.

"Oh, yes, it's beautiful!" declares Hodges, a snowbird retiree from Memphis, Tenn. who prefers the moniker Prince Mongo. "It's absolutely gorgeous."

And it's his own personal protest.

Upset at complaints by neighbors over a wood deck that prompted county officials to cite him for a code violation, he transformed a $300,000 beachside home into a wildly provocative property that stands out as much as he does.

(H/T Daniel Ernst)

Ben Barros

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April 19, 2010 in Land Use, Nuisance | Permalink | Comments (0) | TrackBack (0)

Historic Preservation and Takings

My property class did Penn Central late last week.  With impeccable timing, the St. Petersburg Times ran a story this weekend about a somewhat similar lawsuit arising out of local historic preservation regulations.  The City of St. Petersburg has designated the Hotel Detroit, built in the late 1880s, as an historic property.  According to the owners of the building, which is now used to house condominiums, the designation effectively thwarts their plans to demolish the structure and build a new high-rise in its place.  As this story shows, more than 30 years later, the debates in Penn Central remain alive and well.

Mike Kent

P.S.  Thanks to Stetson law student Megan Robison for bringing the case to my attention.

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April 19, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)