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Univ. of Kentucky College of Law

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Friday, February 12, 2010

Public Housing

Several days ago, the Several days ago, the New York Times reported on the New York Housing Authority's plan to tear down the Prospect Plaza public housing project in Brooklyn. According to the paper, the project will be replaced by "public and private housing, not only for the poor but also for low- and moderate-income families ... in low-rise buildings."

The interesting angle here is not the demolition itself. As the story notes, "[s]ince the 1990s, public housing high-rise buildings have come tumbling down by the dozens across the country"; "Philadelphia tore down 21. Chicago leveled 79. Baltimore took down 21 as well, and when 6 of them came down in one day in 1995, it threw a parade."

No, the interesting part here is the rarity of such events in New York. "New York City has long been the great exception." This will be the first New York demolition of a an entire  public housing project. According to the Times, to date, the New York Housing Authority has only knocked down a handful of high-rises.

My view of public housing is largely shaped by my knowledge of Chicago's public housing. I find it difficult to imagine the circumstances in which state-owned, -constructed and -operated housing stock is a good response to homelessness and poverty or an efficient utilization of realty. I have the instinct to dismiss New York's refusal to abandon public high-rises as another peculiar political desire --- one as misplaced as New York's refusal to finally do away with rent control (and rent-stabilization in the idiosyncratic New York nomenclature). But I haven't researched the issue enough to know whether I'm missing something here. Am I?

Avi Bell

February 12, 2010 | Permalink | Comments (3) | TrackBack (0)

Thursday, February 11, 2010

Blogging

Thanks to Ben for giving me this opportunity and for the warm words of welcome.

Avi Bell

February 11, 2010 | Permalink | TrackBack (0)

Property Theory and HBO's Deadwood (part 2)

In my last post, I noted how HBO's television series Deadwood reflected a Lockean concept of property.  The mining camp of Deadwood exists in a state of nature without organized government, but property nonetheless exists, recognized initially because of the labor of its "owners."  Even so, a shadow looms over Deadwood, placing the property rights of its residents in jeopardy.

Deadwood owes its existence to the nearby gold mines, and it is this proximity to gold that threatens Deadwood's survival.  Both the camp and the gold claims rest on land that legally belongs to the Sioux, but the discovery of the gold has prompted the federal government to begin negotiating a new treaty that will cede the land to the United States.  The prospect of cession has watered the mouths not only of other settlers and prospecters, but also of the powers that be in the nearby Dakota and Montana territories.  Talk of annexation into one of these territories (especially Dakota) is prevalent, and territorial officials seem ambivalent toward the property claims of Deadwood's current residents.

Thus, Deadwood finds itself in a situation where its property and freedom are threatened by the very autonomy and lack of government that served as a draw to most of its early settlers.  This, too, reflects Locke's philosophy, which posited that rights held in the state of nature are "constantly exposed to the invasion of others" due to the lack of formal enforcement mechanisms.  And Deadwood's residents respond to these threats in Lockean fashion -- by organizing a government of sorts to better protect their previously-acquired property interests.  At a meeting of the elders, the de facto leader of the camp tells the others that they need an "informal municipal organization" complete with "titles and departments" to help ward off the possibility that the territorial officials will appoint a government of "their cousins to rob and steal from us."  The hope is that having its own government in place will assist the camp in reaching a favorable peace with the outsiders that may seek to do it harm.   Although there is a lack of true desire for real government, the residents reluctantly acquiesce to a modicum of government for the purpose of protecting what they already have (chiefly, their property).  Reflecting on the prospect of government and civilization coming to Deadwood, one resident comments, "I'd settle for property rights," suggesting that the primary reason to have the former is to ensure protection of the latter.

Once this decision to organize is made, however, it is clear that law will soon be coming to Deadwood.  And the impending presence of formal laws and institutions will test the labor-based view of property around which the camp has been structured.  More on that in a later post.

Mike Kent

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February 11, 2010 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Entering the Blogosphere

I want to thank Ben for allowing me to guest blog this semester.  I should give a disclaimer going in however.  I'm afraid that my blogs may be nothing more than rehashing old (perhaps eternal) questions regarding teaching property.  My goal is to blog as soon as possible after class to put down some of my thoughts/successes/failures on what I covered that day.  I will have some catching up to do in this regard.  At MCSOL property is a four hour course that is taught in the spring semester.

Perhaps I should not admit this in my first post -- one of my primary motivations for blogging is for input from others.  So if I say something and someone disagrees or has a better idea about how to cover the topic -- I'm interested to hear. --donald

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

Tuesday, February 9, 2010

Second Hand Smoke Lawsuit Against ... A Real Estate Agent

This has the makin's of a final exam question.

The UPI story begins: "A real estate broker faced a lawsuit Tuesday accusing him of misleading a condo buyer about second-hand smoke in the building, court watchers say."  Read the rest here.

The Boston Globe has a longer story here.

Alfred Brophy

February 9, 2010 | Permalink | Comments (1) | TrackBack (0)

Avi Bell Guest Blogging

Avi Bell I'm delighted that Avi Bell (San Diego) will be joining us for a guest blogging stint.  I've long been a fan of Avi's work, and I look forward to his posts.

Ben Barros

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February 9, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Mitchell, Malpezzi, and Green on Forced Sale Risk

Thomas W. Mitchell (Wisconsin), Stephen Malpezzi (Wisconsin), and Richard Green (USC) have posted Forced Sale Risk: Class, Race, and The 'Double Discount' on SSRN.  Here's the abstract:

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale conditions. This analysis makes it clear that forced sales of real or personal property are conducted under conditions that are rarely likely to yield market value prices. In addition, the Article addresses the fact that judges and legal scholars have utilized a flawed economic analysis of forced sales in cases that often involve property that is owned by low- to middle-class property owners in part because those who are wealthier own their property under more stable ownership structures or utilize private ordering to avoid the chance that a court might order a forced sale under the default rules of certain common ownership structures. The Article also raises the possibility for the first time that the race or ethnicity of a property owner may affect the sales price for property sold at a forced sale, resulting in a "double discount," i.e. a discount from market value for the forced sale and a further discount attributable to the race of the property owner. If minorities are more susceptible to forced sales of their property than white property owners or if there does exist a phenomenon in which minorities suffer a double discount upon the sale of their property at a forced sale, then forced sales of minority-owned property could be contributing to persistent and yawning racial wealth gaps.

Ben Barros

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February 9, 2010 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Burkhart on Manufactured Housing and Real Estate Finance

Ann M. Burkhart (Minnesota) has posted Bringing Manufactured Housing into the Real Estate Finance System on SSRN.  Here's the abstract:

Eight percent of the United States population - more than 23 million people - live in manufactured homes (also called mobile homes). In some years, more than 30% of the new homes sold have been manufactured. Moreover, manufactured housing is the most important form of unsubsidized affordable housing in this country. Up to two-thirds of the new affordable homes built each year have been manufactured. However, the manufactured housing industry currently is struggling to survive a meltdown in its sales and finance markets. A tremendous obstacle to the industry’s recovery is that most manufactured homes are characterized as personal property, though they have evolved tremendously from their earliest ancestor, the travel trailer. Today, only 1% of manufactured homes are moved after being sited on a lot. Recharacterizing manufactured homes as real property would reflect modern reality and would provide purchasers and owners with access to the mortgage market, which would increase credit availability and affordability and would provide manufactured home owners the same legal protections that owners of site-built homes enjoy.

Ben Barros

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February 9, 2010 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Property Theory and HBO's Deadwood (part 1)

One of my current projects (on which I am collaborating with Lance McMillian, my colleague at John Marshall) concerns how the television series Deadwood portrays ideas about property through a popular culture medium.  For readers who may not know, Deadwood ran on HBO for three seasons during 2004-2006.  In a nutshell, the series follows the fictional saga of what is now Deadwood, South Dakota from its inception as a lawless mining camp to its evolution as a bona fide town complete with budding government and social institutions.  As series creator David Milch has explained, the show is about "the development of law and order, or, specifically, how does order develop without law."  Because the community of Deadwood is founded on the gold that rests in the nearby hills, the assignment and protection of gold claims serves as a central focus in this evolution from anarchy to established legal order.  Thus, the show has a lot to say about property and its relationship to human society.

In this post, I'd like to concentrate on what Deadwood suggests about the age-old debate concerning the origins of property -- i.e., is property a natural right that pre-exists civil government, or is it a creature of positive law made necessary to regulate social relationships?  The series seems to come down on the side of the naturalists and represents, albeit imperfectly, a sort of Lockean viewpoint.  Although civil government exists all around it, the camp of Deadwood is in something of a state of nature.  Bare wilderness only a short time before the viewer joins the series, the camp remains outside the jurisdiction of any recognized U.S. government.  It has arisen from the mud, as a result of the nearby gold, on land that legally belongs to the Sioux.  It has no mayor, no council, no sheriff, or any other trappings of an organized state.

Nonetheless, there is property in Deadwood.  Despite the absence of law, there is an organic recognition of claims to the gold and the surrounding land on which the camp sits.  The de facto leader of the camp is a saloon and brothel keeper whose "ownership" of a significant portion of the camp seems to be acknowledged by everyone else, implicitly because he was among the first settlers to forge the camp out of the "nothing" that was there before.  In one episode, he actually makes this labor-based view of property more explicit, complaining about the undeserving newcomers and comparing them to the deserving elders that fashioned the camp with their sweat and blood.  Newcomers approach him to lease and buy lots in the camp, and their negotiations reflect a fairly sophisticated view of property rights (touching upon such things as servitudes and rights of first refusal), all without deeds, recording statutes, or formal enforcement mechanisms.

In Deadwood, we see a fictional representation of how Lockean labor theory might work.  There is no law and there is no government, but there is property, created by the labor of those who got their "first."  As the series progresses, however, we begin to see another Lockean concept at work.  Although there is property in Deadwood, the lack of formal protections makes rights in that property somewhat unstable, leading the residents of the camp to focus on how their property and way of life might be better secured.  Their search for security will be addressed in another post.

Mike Kent

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February 9, 2010 in Property Theory | Permalink | Comments (4) | TrackBack (0)

Monday, February 8, 2010

Donald Campbell Guest Blogging

Profile_campbell I'm delighted that Donald Campbell, who is visiting at Mississippi College School of Law, will be guest blogging with us.  Welcome, Donald!

Ben Barros

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February 8, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Martha's Vineyard Easements

Thanks to Mary Sarah Bilder for pointing out this great story from the Boston Globe on a recent decision preserving easements on Martha's Vineyard (or perhaps as my Massachusettes relatives would pronounce it, Marthar's Vineyard).


The story begins:

Every Veterans Day and Memorial Day, and once or twice in between, Brian Athearn and his two young sons walk a narrow, grassy path to a tiny, half-forgotten Martha’s Vineyard cemetery. There, the boys salute before a lone veteran’s grave, and their father - the veterans’ graves officer for the town of West Tisbury, and a descendant of one of the Vineyard’s original settlers - plants a small American flag.

The scene is steeped in the tradition of another time, and so is the route they take to get there.

Rogers Path, one of many unpaved “ancient ways’’ that wind through the Vineyard’s woodsy interior, was used by generations of islanders to travel on foot or by cart between island settlements. A court decision last month, issued after a challenge by neighbors set off years of legal wrangling, ensures that the public may continue to use it.

Ah, flags, cemeteries, easements.  What could be better?

February 8, 2010 | Permalink | Comments (0) | TrackBack (0)