Saturday, February 20, 2010

Commercial Landlord-Tenant Dispute

From today's Tuscaloosa News comes news of a sentence for menacing that followed a dispute between a landlord and his tenant, the operator of a restaurant, over property at the restaurant.  Those of you who teach Berg v. Wiley may find this story helpful in illustrating the hard feelings that sometimes develop between landlords and their commercial tenants.  The landlord in this case remains defiant.  The payoff quote from the landlord: "From my cold, dead hands will you take my right to bear arms, and when I’m laying on the ground taking my last breath will you take my property rights.” Alfred Brophy

February 20, 2010 | Permalink | TrackBack (0)

Thursday, February 18, 2010

Adverse Possession as Public Service (and Should Intent Really Matter)?

An interesting story in yesterday's Tampa Tribune tells the tale of a man who has been renting out houses he doesn't own.  Apparently, his modus operandi has been to find vacant homes (usually in or heading for foreclosure), fix them up, change the locks, and rent them out to tenants.  He also files a "Memorandum of Adverse Possession" for the properties with the county clerk.  All was well, it seems, until a real estate agent (who also happens to be a part-time deputy sheriff) attempted to show one of the homes being possessed.  This led to an investigation, after which, the man was arrested for fraud.  His defense:  he was within his legal rights under the law of adverse possession, which he was utilizing in a good faith effort to clean up blighted neighborhoods, provide affordable housing, and stabilize the housing market.  He also claims that he "ran the idea by a few lawyers," who allegedly told him it was a "gray area" but didn't tell him not to do it.

In addition to the fascinating facts, the story is also interesting from a doctrinal standpoint.  The man's defense, whatever its merits, is that his actions were taken with pure motives to do public good.  The local sheriff, when responding to this claim, also spoke in terms of intent, describing the law of adverse possession as only protecting people who possess others' land mistakenly .  This, of course, raises the well-worn question of whether adverse possession should be based on the subjective intent of the possessor (and if so, in what way), or whether objective possession (regardless of intent) should be enough.  For those interested in the competing theories of how to answer the question, as well as its relation to the abandonment of real property, two recent papers (an article and a student note) should provide a good place to start.  See Lior Jacob Strahilevitz, The Right to Abandon, 158 U. Penn. L. Rev. 355 (2010) (SSRN link is here) and Christopher H. Meredith, Note, Imputed Abandonment:  A Fresh Perspective on Adverse Possession and a Defense of the Objective Standard, 29 Miss. C. L. Rev. 257 (2010).

Mike Kent

P.S.  Thanks to Stetson Law students Leighton Hyde and James Kannard for bringing the story to my attention.

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February 18, 2010 in Property Theory | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 16, 2010

Possible empirical study on subjective value

A number of recent newspaper articles about the approaching end of several government programs that attempted to re-inflate the housing bubble (by subsidizing mortgages, buying up mortgage securities, etc.), and of the continuing phenomenon of "upside down" mortgages suggests to me the possibility of a great empirical work for property.

For many years, it has been commonplace in our profession to presume that there is a very large premium that people put on their home ownership. In the takings literature, we refer to this as the surplus subjective value, and it means the extra value that people attach to ownership/possession of their particular home, above and beyond market value.

Today there is huge number of "upside down" properties, in which the excess due on mortgages exceeded the market value of the houses. The number of upside-down properties will doubtless rise as the government reduces efforts to re-inflate the bubble. Since most states make mortgage loans non-recourse, owners of upside-down properties can voluntarily default on their mortgages and and wipe out the entire debt. In other words, we now have a vast number of cases where people have to choose between staying in the house (keeping the subjective value of the house) or walking away (losing the subjective value but getting the value of the wiped-out indebtedness, less the costs of lower credit score).

Collect the numbers, and compare. If you get a big enough database, you should begin to get some indications of how large the surplus subjective value is, at least on average. No, this is not a perfect measure. But it seems like a potentially interesting start.

Avi Bell

February 16, 2010 | Permalink | Comments (3) | TrackBack (0)

Of Easements, Trespass, and Fences in the Street

The St. Petersburg Times ran a story last week that presents some interesting issues related to the law of easements, private rights of way, and trespass.  Apparently, a disagreement among some neighboring landowners has resulted in one of them constructing a fence down the middle of a road, which the landowner claims is actually her property.  The case looks like it may end up in trial, with cross-claims of easements and trespass likely (not to mention a whole lot of angry residents in the area who are now driving home on a one-lane road).  I smell an exam question in the making!

Mike Kent

P.S.  Thanks to Stetson Law student Quincy Bird for bringing the story to my attention.

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February 16, 2010 | Permalink | Comments (0) | TrackBack (0)