August 26, 2011
Friday's Architecture Moment
Witold Rybczynski explains the enduring appeal of Fallingwater through a series of slides:
Fallingwater is a house of theatrical effects, but one of its charms is that there is no backstage. Whether you are on the stair going down to the water, sitting on one of the six outdoor terraces, or walking along the driveway (left), the house is integrated with its woodland setting. The three massive beams sitting on—or is it in?—the moss-covered boulder, support the terrace that leads off Edgar Kaufmann’s bedroom.
Obama Administration Considering Plan to Encourage Mortgage Refinancing
Yesterday the New York Times reported that the Obama administration is considering a plan that would “allow millions of homeowners with government-backed mortgages to refinance them at today’s lower interest rates, about 4 percent.” If it gets the green light, the plan could save homeowners $85 billion a year and inject some needed stimulus into a sluggish economy. Matt Yglesias argues that the scheme makes a lot of sense. Ezra Klein does some digging and explains why the scheme is unlikely to work.
Hirokawa on the "Change or Mistake Rule" in Local Zoning Decisions
Keith Hirokawa (Albany) has posted Making Sense of a 'Clear Misunderstanding of the Planning Process': Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule on SSRN. Here's the abstract:
In some states, zoning is marked by the persistence of the so-called “change or mistake rule." In contrast to the traditional deference afforded to local zoning decisions, this rule limits the freedom of local governments to make site-specific zoning amendments by burdening the applicant to justify the rezone with evidence of a mistake or a substantial change in circumstances since the initial zoning designation was adopted. Despite being chastised in the courts and labeled in legal literature as a “clear misunderstanding of the planning process,” the rule has endured for over a half a century. This article explores the criticisms of and justifications for the change or mistake rule in order to identify the understanding that supports its continued application. Specifically, this article argues that the change or mistake rule was intended as a mediator between two fundamental purposes of zoning - maintaining communities that have sufficient flexibility to implement a new community vision, while providing stability and certainty as a planning device.
August 25, 2011
Harvard University Press & Property
Daniel Solove highlights a few new releases from Harvard University Press that should be of interest to Property Profs:
1. Stuart Banner, American Property: A History of How, Why, and What We Own. Banner examines the history of property in the United States and concludes that "property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire."
2. Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law. Epstein aruges that we urgently need a smaller federal government. He "bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth."
3. Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age. Hartog tells the story of how the elderly used promises of inheritance to keep children at their side and ensure their care.
Hirsch on the Uniform Disclaimer of Property Interests Act
Adam Hirsch (Florida State) has posted The Code Breakers: How States are Modifying UDPIA (Real Property, Trust and Estate Law Journal). Here's the abstract:
The Uniform Disclaimer of Property Interests Act, covering disclaimers of inheritances, has been widely adopted but also widely modified. Almost all of the adopting states have tinkered with the Act in various, and varying, ways. This article sketches out and critiques these modifications, assessing whether each contributes to the quality of this Uniform Act, and explaining the nature of the contribution. The article also weighs in on the larger debate over whether individual states should indulge in the exercise of second-guessing the drafters of Uniform Acts in the trusts-and-estates field, or whether the greater good is to maintain uniformity and wait for the Uniform Law Commissioners to amend their own products. The experience of UDPIA bears on this issue of legislative process.
August 24, 2011
Gifts of Real Property & Taxes
A lucid explanation of the tax consequences of making inter vivos gifts of real property.
Iacoviello on Housing Wealth and Consumption
Matteo Iacoviello (Boston College - Econ) has posted Housing Wealth and Consumption on SSRN. Here's the abstract:
Housing wealth is about one half of household net worth, and consumption is a considerable fraction (about two thirds) of Gross Domestic Product in the United States. Empirically, movements in housing wealth are associated with movements in consumption in the same direction. This observation has led many economists, commentators and policy makers to study how housing wealth and consumption are linked together. A sizable portion of the comovement between housing wealth and consumption reflects common factors driving both variables, rather than the "wealth effect" of the former on the latter; however, a growing body of evidence suggests that the comovement is larger in developed financial markets and in the presence of liquidity constraints.
August 23, 2011
Here's a podcast that explains everything you ever wanted to know about cul-de-sacs.
America's Best Places to Live
CNN-Money's list of the top 20 places to live in America. The goal:
Find the best combination of job opportunities, fiscal strength, top-notch schools, safe streets, good healthcare, cultural and outdoor activities, even nice weather.
Nichols on the Federal Protecting Tenants at Foreclosure Act
Elan Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties (Journal of Affordable Housing) on SSRN. Here's the abstract:
The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.
This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.
To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.
August 22, 2011
Inspiration or Eyesore
There's an interesting land use battle going on in South Korea. It seems that Christian churches on the Korean peninsula really like to attach glowing neon crosses to the tops of their buildings. Based on newspaper accounts the crosses often stay illuminated well into the night. I haven't found a good explanation for the root of this practice, but it sounds like an important show of faith for believers.
Yet, as you can imagine, many neighbors aren't so delighted with the 24-hour glow. Despite neon red light pouring into rooms of many homeowners, effective lobbying by Christian groups has kept the religious organizations exempt from the country's sign and light pollution regulations. Kim Un-tae, head of the Christan Council of Korea argues that regulating the crosses amounts to "denying the existence of the church."
(picture found with creative commons search)
Ghost Estates in Ireland
I admit that when I first read the title of this photo essay in the New York Times, I thought that it was about haunted houses. But sadly, it is a haunting reminder that the housing bubble was not just an American phenomenon. Although the architecture of the homes depicted in Valérie Anex's photo essay are uniquely Irish, the vibe is similar to the Guardian's photo essay "Detroit in Ruins," which we linked to earlier this year.
On a related note, also in today's New York Times, an editorial reminding us that despite the fact that American mortgage interest rates are at an all time low (as Steve posted this morning), millions of homeowners are still underwater on their mortgages. The editorial advises us that "Congress and the White House have yet to figure out that the economy will not recover until housing recovers — and that won’t happen without a robust effort to curb foreclosures by modifying troubled mortgage loans." More on this editorial later (if I make some progress on my class prep).
Mortgage Rates at All-Time Low
Mortgage rates tumbled to the lowest level in the history of Freddie Mac's weekly survey, with 30-year fixed-rate home loans being offered this week at an average 4.15%, down from last week's 4.32%.
Rausch on Abortion and Property Rights
Rebecca Rausch (Seattle - Teaching Fellow) has posted Reframing Roe: Property Over Privacy (Berkeley Journal of Gender, Law & Justice) on SSRN. Here's the abstract:
Roe v. Wade has received much criticism from both sides of the political spectrum. Though the perspectives of the two camps differ significantly, players from each share at least one common critique of the landmark decision. Specifically, both sides are skeptical about the lack of an express Constitutional right to privacy, on which the Supreme Court in Roe based its decision to find a “fundamental” right to abortion. This lack of Constitutional context and legal history renders Roe vulnerable. In addition, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or access support from the government; it is relegated to the land of negative rights, which might provide the right woman with reproductive choice free from government intrusion, but for the wrong woman - one with limited resources - the so-called “choice” becomes nonexistent.
This article investigates whether the absence of positive rights and the foundational flaw of the right to privacy might be adequately addressed by reframing Roe in the language of property - specifically, a woman’s property right in her uterus. Assuming arguendo the anti-choice tenet that the fetus is a person from the moment of conception, separate from the woman carrying it, the article sets forth an argument that the fetus is an unwanted trespasser in the woman’s uterus whom the woman has a right to eject. Further, the article posits that this property-based notion of abortion might give rise to government funding for abortions based on a Constitutional obligation to maintain a system designed to protect women’s uterine property, similar to states’ obligations to maintain a police force in order to protect other forms of private property, including the removal of trespassers. In short, this article provides a new basis for abortion rights that takes advantage of the long-standing traditional notions of property law and the right to exclude, as well as the public support that attaches to that right, manifested through anti-trespass systems. After establishing the property-based argument, the article explores what might be gained, and what might be lost, by adopting such a premise for abortion rights and access. Among these considerations is whether the anti-trespass scheme might push the abortion discourse beyond the typical polarizing rhetoric surrounding both the pro-choice and anti-choice camps, thus generating space for forward movement and meaningful work.
August 21, 2011
John Denver Peak?
I grew up listening to John Denver songs, so I was intrigued to see that there is a petition to name a peak
in the Rocky Mountains "John Denver Peak." Specifically, the petition is to name the east peak of Mount Sopris, above Aspen, Colorado, rumored to be the site where he wrote "Rocky Mountain High."
This petition has sparked a controversy between those who think that this is a perfect way to honor the artist, versus those who think that Denver's legacy as an environmentalist is overhyped, and that he did the area more harm than good by promoting it in his songs.