September 30, 2011
Friday's Architecture Moment
The New Yorker does not dig Apple's new headquarters:
So why is Foster’s design troubling, maybe even a bit scary? The genius of the iPhone, MacBook, iPad, and other Apple products is that they are tools that function well and happen to be breathtakingly beautiful. . . . With this building, there seems to be very little sense of any connection to human size. Flexibility is a hallmark of the iPad, and it counts in architecture, too, but how much flexibility is there in a vast office governed entirely by geometry? For all of Foster’s sleekness, this Apple building seems more like a twenty-first-century version of the Pentagon.
September 29, 2011
The Federal Government's Real Estate Fire Sale
There have been reports for a year or more that the Obama Administration is considering selling surplus real estate assets (leases and fee simple interests) as part of an effort to ease the federal deficits. The New York Times reports today that this idea has garnered rare bipartisan support and may be building steam.
But a recent study by the GAO argues that GSA (the real estate arm of the federal government) has over-relied on leasing and that used owned real estate is a better strategy for the government than leasing.
I hate to criticize that rare policy issue that both parties have apparently agreed upon, but I have two issues with the administration's plan. First, in light of the GAO report, does it make sense to divest of owned real estate while GSA is still leasing? Perhaps GSA has reviewed all of the "surplus" real estate (such as Plum Island) and rejected it, but then again, perhaps not. Second, in a time when commercial real estate values are still significantly depressed, is it a good idea for the government to dump more inventory on the market?
America's Housing Mismatch
When the census first started measuring the size of American households, back in 1790, the average home had nearly six people in it. By 1960, that number had fallen to just over three. According to early 2010 estimates—although the data also shows many of us doubling up to make rent in the recession—we’re now down to about 2.6.
But there’s one group that still hasn't caught on: homebuilders. American households have been shrinking for years at exactly the same time as our houses have been expanding. By a lot. Data from the Center for Neighborhood Technology compares trends in household size to census data on home construction, showing that the average size of new homes swelled from 1,400 square feet in 1960 to 2,100 four decades later.
The article goes on to hypothesize about what will become of all the McMansions that sprang up in the mid-1990s.
A Unique Property In New York City
It has no electricity or sewer lines. Much of it is under water at high tide. It has neither shelter nor a ready spot to build one. It does not even come with a dock. And yet, for that customer seeking noncity living in New York — with no neighbors, no traffic and no noise save the squawking of the birds that nest there — Rat Island, a tiny parcel of vacant, mussel-littered land in Long Island Sound off City Island, might just fit the bill.
Gerzog on the Valuation of Conservation Easements
Wendy Gerzog (Baltimore) has posted Excluding Expert Valuation Testimony (Tax Notes) on SSRN. Here's the abstract: "In Boltar, a case in which the Tax Court addressed the valuation of a conservation easement, the court ruled on the admissibility of expert testimony."
September 28, 2011
Map of the Day
How many kisses on the cheek you give in different regions of France:
Case of the Week
Harrington v. Metropolis Property Management Group, Inc. (Supreme Court of New Hampshire)
Background: Harrington signed a lease commencing on July 1, 2007, and ending “60 days after written notice has been given.” In August of 2009, Harrington, angry about the barking of a neighbor's dog, gave 30 days notice and vacated the premise. The property management company claimed Harrington violated the terms of the lease and retained his security deposit. Harrington sued to recover the deposit, citing a series of New Hampshire laws indicating that: “30 days' notice shall be sufficient in all cases.”
Holding: "The use of the term “sufficient” in the statute connotes that the legislature intended that thirty days be the minimum period of time necessary for such notice." Nothing in the state's law "prevents parties to a lease from agreeing to a longer notice period than that provided by the statute to secure greater protection for themselves."
September 27, 2011
Kelo in the News II
Justice Richard N. Palmer of the Connecticut Supreme Court, one of the four justices who voted with the 4-3 majority against Susette Kelo and her neighbors, had a face-to-face encounter with Ms. Kelo and Jeff Benedict, author of Little Pink House, at a 2010 dinner party. According to Benedict, the Justice said "Had I known all of what you [Benedict] just told us, I would have voted differently."
Justice Palmer later provided some context for the remark. "Those comments," he wrote, "were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." He later added that he could not know of those facts "because they were not yet in existence."
Benedict's take on the encounter is here.
(HT: Sarah Waldeck)
Kelo in the News I
Brooke Shields will play Susette Kelo in a Lifetime TV movie about the woman's failed quest to stop New London from taking her home with its eminent domain power.
Lifetime Television is basing the movie on Jeff Benedict's chronicle of the dispute, Little Pink House: A True Story of Defiance and Courage.
Massey From Hastings to University of New Hampshire
Calvin Massey, author of the forthcoming casebook Property: Principles, Problems, and Cases, has accepted an offer from the University of New Hampshire to become the first Daniel Webster Distinguished Professor of Law. The press release from UNH is here.
EDITOR'S NOTE: If you have any other hiring or promotion news from the property realm, please pass that along - we're always happy to celebrate our own.
Slating on Ambiguities in the Real Estate Settlement Procedures Act
Timothy Slating (Illinois - Student) has posted To Defer or Not to Defer: RESPA, HUD, and the Section 8(B) Circuit Split on SSRN. Here's the abstract:
This Note analyzes ambiguities [in the Real Estate Settlement Procedures Act of 1974] and the resulting split of authority among the federal courts of appeals. The principle question explored in this Note is whether section 8(b) of the Real Estate Settlement Procedures Act of 1974 prohibits a single service provider from charging a purely unearned fee in connection with a federally related mortgage. There are several critical ancillary issues that must also be addressed in the search for a resolution that is faithful both to the language and intent of the statute as well as the analytical methodology mandated by the Supreme Court of the United States. Such issues include the degree of deference to accord the U.S. Department of Housing and Urban Development’s (HUD) interpretations of the statute and whether the Act prohibits overcharging for services in the settlement process. To this end, the author identifies three types of unearned fees that could potentially be prohibited by the Act: purely unearned fees, markup fees, and overcharge fees.
After a detailed and critical analysis of the positions advanced by HUD and the courts of appeals, the author concludes that because the text of the statute is ambiguous and because neither the structure of the statute, its stated purposes, nor its legislative history are dispositive of the issue, courts should follow the guidance of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. and accord complete deference to HUD’s interpretation, which advocates that a single service provider charging purely unearned fees violates the Act. The author urges, however, that overcharge fees, while arguably within the purview of the statute according to a plausible plain-language interpretation, are not proscribed by the Act based upon the clear legislative intent to avoid becoming price control regulation. Finally, the author concludes that whether markup fees violate section 8(b)’s prohibitions must be analyzed on a case-by-case basis, the standard being whether the markup fee was charged for services that were actually rendered.
September 26, 2011
Renting is for Suckers
From the N.Y. Times: Why rent when you can move back home?
The author argues that the American obsession with real estate and independence is undermining our happiness and financial well-being:
I suspect that many young American adults who have to move in with their parents feel crummy about it. Most Russian immigrants I know do not. They don’t see it as a sign of failure but as a means to achieve their financial goals more quickly. Are Americans really all that desperate to break free of their parents? Or does the push toward independence originate from the top? Are baby boomers sending the not-so-subtle message to their children that they prefer an empty nest?
There are a lot of articles popping up about urban farming (see here, here, and here). Proponents of the practice claim that converting vacant lots into productive agricultural land can provide local jobs, create healthier communities, and make cities more self-sustainable. But why should we care if cities can provide for themselves? Are we worried about the Huns attacking? Shouldn't cities specialize in stuff where they have a comparative advantage?
Baron on Property in Health Care Information
Jane Baron (Temple) has posted Property as Control: The Case of Information (Michigan Telecom and Tech Law Review) on SSRN. Here's the abstract:
Before long, the fragmented, uncoordinated, and geographically dispersed paper records in which our medical information is currently recorded will be replaced by integrated, longitudinal, networked electronic health records (“EHRs”). Though nominally confidential, the information in EHRs, like other information collected about individuals in cyberspace, is as vulnerable as it is valuable. Health law, privacy, and intellectual property scholars have all suggested that the river of information created by EHRs and other data systems present a problem of “control,” and many of these scholars have proposed that “property” might provide the control individuals want and need. These arguments for control rights in personal information test contemporary understandings of what property is and reveal fault lines in modern property theory.
If property rights exist at all in dephysicalized, digitalized information, those rights are unlikely to be consolidated in a single person, to operate in rem, to grant owners significant powers to exclude, or to be standardized — all qualities that, in the eyes of some, are required of true “property” interests. Moreover, it is not clear that the rhetoric of property properly addresses the values at play with respect to medical and personal information, where the asset in question is some aspect of our very selves. Finally, if there is “property” in information, it may be a very unappealing kind of property — a claim derived from envy of the value that others have found in what we had ignored or thought worthless. The question of how power and control over information will be shared between individuals and others involves hard public policy choices. But because property theory is itself deeply divided over the extent to which property provides control, “property” itself cannot determine how these choices should be made.