PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Saturday, December 11, 2010

The Blizzard and the Frozen Property Professor: A Call for Perspective

Saying it's snowing here in Minnesota today would be akin to saying Richard Posner writes.  I just emerged from my driveway looking like Shackleton on a bad day.  Naturally, while encased in snow and ice, with hair and beard and moustache actually cracking each time I moved, my thoughts turned to property.

In particular, my thoughts turned to property as I stood, exhausted but triumphant at the end of my driveway, and saw the gigantic yellow snowplow rumbling down the street.  Toward me.  Toward my newly liberated real property.  Pushing a 6 foot tidal wave of snow.

Surely, what was about to happen must be unlawful, I thought.  My mind worked feverishly:  trespass.  The government can't simply dump a tidal wave of snow onto my real property, can it?  But then I remembered: emergency services.  No right to exclude.  OK, but if the government needs to occupy my property for the benefit of the public, that's a taking, right?  Sure, one day the snow will melt, so it's not a permanent occupation, but hey -- here in Minnesota, it's close enough.  But, of course, I receive some significant reciprocal benefits from the street being plowed.  It's a balancing test.  I considered yelling, "Wait! It's a balancing test!" at the driver, but it was too late.  I was buried to my thighs in a new pile of snow.

My 7 year old daughter has a birthday party to attend, so I started to dig again, cursing the truth that in the end, property rights depend on the power to enforce them.  Back inside, liberated once more, and re-gaining my balance enough to realize there's no taking, or any other type of claim, I found a message waiting on the phone: party cancelled.  And as I sit here typing this, the snowplow just went by again.

Serenity now!

Mark A. Edwards

Update #2: Perspective achieved. 

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December 11, 2010 | Permalink | Comments (2) | TrackBack (0)

Friday, December 10, 2010

Call for Property Papers

Stanford and Yale Law Schools have announced a call for papers (including property topics) for the twelfth annual Stanford/Yale Junior Faculty Forum to be held at Stanford Law School on June 24-25, 2011:

The Forum's objective is to encourage the work of young scholars by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, at Yale one year and Stanford the next.

Approximately twelve scholars (with one to seven years in teaching and who are not yet tenured) will be chosen on a blind basis from among those submitting papers to present. Two senior scholars, not necessarily from Stanford or Yale, will comment on each paper. The audience will include the invited young scholars, faculty from the host institutions, and invited guests. The goal is discourse on both the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among legal scholars generally, particularly among new and veteran professors.

Each year the Forum invites submissions on selected topics in public and private law, legal philosophy, and law and humanities -- alternating loosely between public law and humanities subjects in one year, and private and dispute resolution law in the next. The focus of the twelth session will be private law and dispute resolution. The topics to be addressed [include property].

There is no publication commitment associated with the Forum, nor is published work eligible. Yale or Stanford will pay presenters' travel expenses, who will be required to attend the entire Forum schedule. Paper submissions for the Forum should be sent to Judy Dearing at Stanford Law School by March 17, 2011.

Steve Clowney

December 10, 2010 | Permalink | Comments (0) | TrackBack (0)

Foreclosure & Homeowners' Associations

The LA Times has a blog post discussing the stress that the foreclosure mess has put on homeowners' associations:

If you live in a homeowners association – condo or single-family – chances are you have a very badly behaved new neighbor. Your neighbor doesn’t pay association fees – just because it doesn’t want to. Your neighbor doesn’t think it has any responsibility to the unit or house it bought, never mind to you.

Your new neighbor? A bank.

Steve Clowney

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December 10, 2010 in Home and Housing, Mortgage Crisis | Permalink | Comments (1) | TrackBack (0)

Thursday, December 9, 2010

The Grinch, Property, and Nuisance

How Economics [and Property Rights] Saved Christmas, via Forbes.

Ben Barros

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December 9, 2010 in Law & Economics, Nuisance, Property Theory | Permalink | Comments (1) | TrackBack (0)

Ellickson on The Signals of Property Claims

Robert Ellickson (Yale) has posted The Inevitable Trend Toward Universally Recognized Signals of Property Claims: An Essay for Carol Rose ( William & Mary Bill of Rights Journal).  Here's the abstract:

Carol Rose has identified the study of the communication of property claims as her central scholarly project. In this tribute to her distinguished career, I discuss whether a method of communicating a property claim - for example, the building of a fence around cultivated land - tends to be universal or to vary from one interpretative community to another. On account of increasing urbanization and long-distance travel, a property claimant in a given cultural setting must anticipate that some passersby will be total strangers. I contend that this reality prompts claimants to favor furnishing nonverbal visual cues, such as fences, that people of all backgrounds should be able to recognize.

Steve Clowney

December 9, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Left Behind: Pictures of the Mortgage Collapse

The N.Y. Times has an nice blog post that discusses how artists have represented the foreclosure crises:

As the housing crisis continues to unfold, the challenges in keeping it visually fresh for a restless public grows. “It’s not an easy subject to visualize,” says Mr. Suau. . . . “In a single image it’s difficult to illustrate the size and enormity of the problem.

The post also includes a slideshow that demonstrates a number of artistic approaches to the problem.

Steve Clowney

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December 9, 2010 in Mortgage Crisis | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 8, 2010

Charting Commercial Real Estate Delinquencies

I have been a total blogging slacker, for which I apologize.  I've been fairly obsessed with commercial real estate debt for the past month or so and reading documents with lots of numbers.  One such document is the Mortgage Bankers Association report on delinquency rates in the third quarter of 2010.  Not good news.  I have made a nifty chart to illustrate this data which I will hopefully attach to this post without incident:

Workbook2 Sheet1
Source:  Mortgage Bankers Association, Mortgage Delinquency Rates Among Major Investor Groups Q3 2010, December 2010.

The best estimates are that $1.4 trillion of commercial real estate debt will mature before 2014, and the estimated equity gap (difference between refinancing proceeds and payoff amounts for prior debt) will exceed $800 billion.  I'm working on an article that attempts to describe how this problem came to be and what we might be able to do to solve it. If you have any thoughts on the subject, please share.

Tanya Marsh

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December 8, 2010 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 7, 2010

Property: The Musical

There is a property-themed musical.  It centers on eminent domain issues.  It is getting good reviews from the likes of the New York Times:

The great Stephen Sondheim himself might find it tricky work to make lyrical magic of the relationships among the various civic entities charged with approving land-use deals in New York City. Yet these matters are rhapsodized in song with style and wit in the spirited new show from the Civilians, “In the Footprint: The Battle Over Atlantic Yards”

Christmas has come early my friends.  Yes it has.

Steve Clowney

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December 7, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, December 6, 2010

Salkin and Nolon's Climate Change and Sustainable Development Nutshell

Congrats to Patty Salkin (Albany) and John Nolon (Pace) on the publication of their new Nutshell on Climate Change and Sustainable Development.  Here is the book description:

This book comprehensively explores international, federal, state, and local laws and policies regarding sustainable development and climate change management.  It traces the historical development of sustainable development and climate change law, showing that they appeared on the world stage at the same time and illustrating how they can be best understood, implemented, and practiced as a single body of law and policy.

The book illustrates the initiatives taken by all levels of government to achieve sustainable development, showing how these initiatives provide important opportunities to manage, mitigate, and adapt to climate change. The Nutshell explains how the U.S. legal system, particularly its reliance on the land use authority of local governments, fosters greenhouse gas reduction, energy conservation, and sustainable patterns of growth, including energy-efficient and sustainable buildings, the use of renewable energy resources, the protection of sequestering open space, and the adaptation of buildings and communities to sea level rise and natural disasters.

Climate Change and Sustainable Development Law in a Nutshell provides the international and national context for this bottom up approach. It illustrates how national and state governments can motivate 40,000 local governments in the U.S. to use existing authority and to adapt effective local initiatives already in place to both mitigate and adapt to climate change. This is presented as a complement to other international and national strategies for climate change management.

As one of dozens of examples, the Nutshell explains that local governments in most states are charged with enforcing the energy construction code and that, in many states, they have the power to enhance that code to achieve at least 30% greater efficiency in newly constructed and substantially renovated buildings.  The building industry will provide millions of new homes and billions of square feet of nonresidential buildings to keep pace with our increasing population. Buildings consume the lion’s share of all electricity generated and are responsible for over a third of carbon dioxide emissions. Some predict that two-thirds of the buildings in existence at mid-century will be built between now and then.  The new International Green Construction Code, issued by the International Codes Council, contains techniques for extending this energy saving strategy to existing buildings. 

The Nutshell also explains how localities can reduce their carbon footprint through transit oriented development and promoting renewable energy strategies, both of which depend on local planning and land use regulation. While grander schemes are stuck for the time at the federal and international level, researchers struggle to keep up with the task of identifying and analyzing progress of this sort on the ground.

The Nutshell covers the Rio Accords, the Istanbul Declaration on Human Settlements, the Johannesburg World Summit on Sustainable Development, and the 2005 and 2010 Millennium Ecosystem Assessment reports. These illustrate that the devolution of some legal authority to attack the full range of problems that hinder sustainable development is built into international agreements and the law of other nations. The book notes that the IPCC is considering including chapters on Human Settlements and Infrastructure in the Fifth Assessment Report.

Ben Barros

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December 6, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Congrats to Ashira Ostrow

PropertyProf Ashira Ostrow was one of the two winners of the 2011 AALS Scholarly Paper Competition.  Her paper, Process Preemption in Federal Siting Regimes, is available on SSRN.  Here's the abstract:

Historically, land use regulation has been considered a matter of local concern. The federal government left land use to the states, and the states, in turn, empowered municipalities to enact zoning laws to guide planning and development decisions. Today, however, formal distinctions between state and federal spheres of power have been supplanted by a multi-jurisdictional understanding of federalism, in which local authority to regulate land overlaps with federal and state authority. To that end, Congress has experimented with a variety of preemption regimes aimed at compelling local governments to site nationally relevant facilities, such as radioactive waste disposal facilities and telecommunication towers.

This Article explores the spectrum of federal preemption options, ranging from federal delegation, empowering states to independently design and implement siting regimes, to unitary federal preemption, vesting siting authority in a federal administrative agency and displacing traditional state and local land use authority. In particular, this Article identifies an innovative approach to facilities siting, termed “Process Preemption.” In a Process Preemption regime Congress imposes federal constraints on the siting process, but leaves primary decisionmaking power in the hands of local land use regulators. This Article argues that Process Preemption has the potential to aid in federal siting schemes because (a) its hybrid federal-local framework accounts for the interjurisdictional nature of a federal siting policy, effectively balancing national and local land use priorities and (b) its emphasis on procedure increases the legitimacy, consistency, and ultimate public acceptance, of controversial siting decisions.

Ashira will be presenting her paper on Friday, January 7, at 4:00 PM at the Hilton.

Ben Barros

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December 6, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Early Registration for ALPS Extended to Dec. 20

The early registration discount for the ALPS conference has been extended to December 20.  This is a great conference - register now, if you haven't already!

Ben Barros

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December 6, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

PropertyProf Wanted at UNLV

UNLV's William S. Boyd School of Law is looking to fill a property position and especially invites expressions of interest from experienced property professors considering a lateral move. The school is in its second decade, having already built a remarkable record of success. Its faculty is engaged, productive, and collegial, and the Las Vegas area is an exciting place to live. With over two million residents, the city offers far more than its world-class restaurants and shows. Surprisingly perhaps, it is a great town for families, with a full array of family activities and lovely residential areas. It is located closer to more national parks than any other U.S. city, and local outdoor activities include hiking, biking, climbing, camping, boating, and skiing (both water and snow). In case all that is not enough, McCarran International Airport, provides easy direct flights to national and international destinations. If you or someone you know is interested in learning more, please contact the appointments committee chair, Jeff Stempel, at mailto:[email protected]

December 6, 2010 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Owning the Sun

800px-The_sun1 A woman in Spain has officially registered ownership of the Sun.  She plans to start charging everyone for use of the Sun.  I might be willing to take her more seriously if she went there and took actual possession.

Ben Barros

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December 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Owley on Conservation Easements

Jessica Owley (Buffalo) has posted Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements (Stanford Environmental Law Journal) on SSRN  Here's the abstract:

Increasing environmental problems, including those associated with climate change, highlight the need for land conservation. Dissatisfaction with public methods of environmental protection has spurred conservationists to pursue private options. One of the most common private land conservation tools is the conservation easement. At first blush, this relatively new servitude appears to provide a creative method for achieving widespread conservation. Instead, however, conservation easements often fail to accommodate the reality of our current environmental problems. These perpetual (often private) agreements lack flexibility, making them inappropriate tools for environmental protection in the context of climate change and our evolving understanding of conservation biology.

This article addresses concerns with the widespread use of conservation easements, advocating for improved conservation easements and better decision making as to when to use conservation easements. A first step in rethinking our approach to the use of conservation easements is to shift from perpetual conservation easements to renewable term conservation easements. Although perpetuity is one of the defining aspects of most conservation easements, it is neither realistic nor desired. In their current static form, conservation easements are not receptive to change in ecology or society. Where conservation easements are of a limited duration, their economic, societal, and conservation value can be more readily assessed and considered when making land-use decisions. Additionally, many conservation easements are already beset with durability concerns. Instead of forcing a cumbersome and unrealistic perpetuity requirement on conservation easements, we should use agreements with a revisitation date. By shifting the initial assumption that these agreements will not be perpetual, we can create responsive agreements and make better decisions regarding when conservation easements are appropriate.

Steve Clowney

December 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Buy Home, Get Rich

Megan McArdle of the Atlantic takes on the mortgage interest deduction:

The deduction's sort of like a giant McMansion in an undesirable exurb with a whacking great underwater mortgage:  no matter how terrible it is, no matter how much we hate it, we're probably stuck with it for the foreseeable future.

Steve Clowney

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December 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 5, 2010

Property Smarties

Esquire magazine names "16 Geniuses Who Give US Hope" - two of them work in property-themed areas:

1. Janette Sadik-Khan - Commissioner of the NYC Department of Transportation

2. Theodore Zoli - Designer of awesome bridges

  Kerrybridge

Steve Clowney

(pic:  Zoli's Bob Kerrey Pedestrian Bridge, found with Creative Commons search)

December 5, 2010 | Permalink | Comments (0) | TrackBack (0)