October 21, 2011
Friday's Architecture Moment
Property Law v. Occupy Wall Street
According to various news outlets, public space ordinances are being used to clamp down on Occupy Wall Street protesters. The laws include anti-sleeping laws, bans on personal belongings in public space, and laws against impeding pedestrian traffic. See here for a recap.
Lin, Allen, & Carter on Pet Policies and Housing Prices
Zhenguo Lin, Marcus Allen, and Charles Carter have posted Pet Policy and Housing Prices: Evidence from the Condominium Market (J. of Real Estate Finance & Econ) on SSRN. Here's the abstract:
This paper examines the economic impact of restrictions against keeping domestic pets in residential dwellings. Using a large data sample of condominium sales, we empirically estimate price effects associated with pet restrictions. Our results suggest that an unrestricted pet policy creates a significant premium in condominium price, along with discounts for condominiums that do not allow pets or have pet restrictions. This finding is useful for policy makers, developers of new condominium projects, and condominium owner associations in their decisions to establish or alter laws and regulations regarding restrictions on pet owner residents.
October 20, 2011
America's 10 Angriest Cities
To find America’s 10 Angriest Cities The Daily Beast combined the turnout totals per capita for the Tea Party’s April 15, 2009 protests and the Occupy Wall Street protests on October 15, 2011—with data from Nate Silver’s FiveThirtyEight Blog, and reliable reports and estimates—to find the number of protesters per million residents in cities with more than 500,000 people.
TransCanada Pipeline and Eminent Domain
A Canadian company has been threatening to confiscate private land from South Dakota to the Gulf of Mexico, and is already suing many who have refused to allow the Keystone XL pipeline on their property even though the controversial project has yet to receive federal approval.
Unsurprisingly, people are outraged:
In addition to enraging those along the proposed pipeline’s 1,700-mile path, the tactics have many people questioning whether a foreign company can pressure landowners without a permit from the State Department — the agency charged with determining whether the project is in the “national interest.”
Sprankling on International Property Law
John Sprankling (McGeorge) has posted The Emergence of International Property Law (North Carolina Law Review) on SSRN. Here's the abstract:
Title to deep seabed minerals, ownership of cultural objects, transferable allowances to emit greenhouse gases, security interests in spacecraft, and rights of indigenous peoples in ancestral lands are all components of a new field: international property law.
Scholars have traditionally viewed property law solely as a national concern. Indeed, the conventional wisdom is that international property law does not exist. But if we ask how international law affects private property, we find a substantial body of international property law that governs the rights of individuals, businesses, and other non-state actors. Some components are well established, while others are still evolving.
This article first examines the antecedents of international property law. It then develops the thesis that this law stems from four main sources: regulation of the global commons; coordination of transboundary property rights; adoption of global policies to prevent specific harms; and protection of human rights. It concludes by analyzing the challenges that arise from the emergence of international property law.
Forty years ago, international environmental law emerged as a new field. Today we stand on the threshold of a similar era in international property law. This article argues that the time has come to recognize international property law as a discrete subject, and thereby promote its coherent evolution in future decades.
Serkin on Entrenchment Concerns
Christopher Serkin (Brooklyn) has posted Public Entrenchment Through Private Law: Binding Local Governments (Chicago Law Review) on SSRN. Here's the abstract:
Anti-entrenchment rules prevent governments from passing unrepealable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments — and local governments in particular — have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertemporally. This Article develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. It then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt.
October 19, 2011
Case of the Week
Westpac Aspen Investments, LLC v. Residences at Little Nell Development, LLC (Colorado Ct. of Appeals)
Issue: Does the merger of title doctrine extinguish a prescriptive easement when the sole owner of the servient estate holds title to the dominant estate in joint tenancy with his spouse?
Holding: No. The common ownership necessary to trigger the merger doctrine “must be absolute, not defeasible or determinable, and coextensive, rather than owned in different fractions.” A joint tenant, however, lacks absolute dominion over the jointly held property. “Upon the death of one of the co-tenants in joint tenancy, the entire undivided interest of the deceased passes, by operation of law, to the surviving co-tenant.” Moreover, the joint tenant may not alienate, encumber, or transfer the interest of the other joint tenant.
Meidinger on the Public Use Requirement
Errol Meidinger (Buffalo) has posted The 'Public Uses' of Eminent Domain: History and Policy (Environmental Law Journal) on SSRN. Here's the abstract:
This paper examines the effects and implications of the ‘public use’ requirement for the exercise of eminent domain in the United States. It is part of an ongoing inquiry the consequences of eminent domain in the United States. The first part examines the history of the public use requirement, both how the doctrine has been articulated and logically extended and what purposes have been accomplished under it. The second part of the paper is an analytic critique of the public use doctrine. After considering whether any principled standard can be developed to delimit the proper uses of eminent domain, it examines a number of the difficult empirical and political questions confronted in any effort to develop such a standard that properly limits state power to confiscate privately held property.
October 18, 2011
Equality and the Monarchy
As royal watchers doubtless already know, David Cameron has proposed to change British royal succession laws to permit the first-born child (regardless of gender) of the Duke and Duchess of Cambridge (i.e. Will and Kate) to succeed to the throne. This idea has been floated before, but The Economist explains that it has "always been shelved on the grounds of complexity. Britain cannot change the rules alone, but must seek support from the 15 other realms of which Elizabeth II is queen."
He has also proposed to repeal the rule that bars those from marrying Roman Catholics from the succession. This rule would apply only to future marriages, to prevent a "queue of pretenders outside Buckingham Palace."
Teaching the Financial Crisis: Resources
I have referred a few times to the course that I'm teaching on the financial crisis this semester. Several property profs have contacted me off-line for ideas about materials to use in incorporating a perspective on the financial crisis in the property class itself. The problem with teaching the financial crisis is not that there isn't any material -- it is perhaps that there is too much material, much of it rich and detailed and difficult to adapt to a brief summary. Here are a few ideas on resources that you may be able to use.
If you are interested in the events from May-October 2008 (the failure of Bear Sterns, the nationalization of Fannie and Freddie, the failure of Lehman, and TARP), the best option is Frontline's 1-hour show "Inside the Meltdown." You can purchase the DVD from PBS, or watch the piece streaming on its site. There is additional material on the site, including a timeline and uncut interviews from key players.
For a more dramatic version of the same events, you could watch HBO's adaptation of Andrew Ross Sorkin's Too Big to Fail. The Frontline piece is much better.
If you are interested in the subprime aspects of the debacle, there are several options. I would recommend having students read a few chapters from Alyssa Katz's Our Lot: How Real Estate Came To Own Us (particularly chapters 3, 5, and the epilogue) in conjunction with an excerpt from Michael Lewis' The Big Short, or his piece in Portfolio, which is adapted from the Big Short. The website of the Financial Crisis Inquiry Commission also has a wealth of material, including a very good dissection of a 2006 Citigroup CDO filled with subprime mortgages originated by New Century. The FCIC's "Story of a Security" includes all of the original documentation and most of the material is intimidating, but the overview tells the story well. The graphics tab of the FCIC site also has some nice one-sheets near the end that help explain how CDOs work.
One final option, which again focuses on the subprime aspects of the financial crisis, is Episode 4 of Niall Ferguson's The Ascent of Money series on PBS. Again, you can stream the films online for free. This piece focuses on the historical evolution of the U.S. housing market since the Great Depression. It may work well for homework in a Property class because it is accessible and provides some useful historical perspective.
If anyone has other suggestions about materials, please share them in the comments. In particular, the focus of my class has been very American-centric. I would love to locate some accessible materials to help the students understand the sovereign debt crisis in Europe and other global aspects of the financial crisis.
Vernon, CA, ctd.
Earlier this year, Tanya had a nice post on Vernon, California, a small city on the outskirts of downtown LA. To recap, Vernon has only 95 residents but is home to 1,800 businesses. Industries locate in Vernon to take advantage of its low taxes, lax regulations and cheap municipal power. Also worth noting for property scholars is that the full-time residents (and sole voters) live in small homes, most of which are owned by the City.
Yesterday, the L.A. Times unearthed fresh allegations of corruption against city leaders. In the last five years, Vernon has paid more than $3.7 million to maintain and refurbish the residential properties while taking in only $472,000 in rent.
The city can engage in this kind of malfeasance because it takes in an enormous amount of property taxes from the business located in its borders, and has no requirement to provide services to the 55,000 workers who work in Vernon and live elsewhere. Exclusionary zoning wins again.
Get Off My Lawn (and Tear Down that Affordable Housing)
[O]lder people tend to be most active in opposing new development, while younger people are more often in support. . . . As the U.S. population ages, the opposition of older people to new development is likely to become a growing issue. The median age in the U.S. in 2010 was 37.2, up from 30 in 1980.
Smith on the Modularity and Morality in the Law of Torts
Henry Smith (Harvard) has posted Modularity and Morality in the Law of Torts (Journal of Tort Law) on SSRN. Here's the abstract:
Tort law presents a puzzle from an information cost point of view. Like property, its duties often avail against others generally, but unlike property it is appears not to be standardized and is more subject to judicial innovation. This essay argues that torts, like property, employs modular structures to manage the complexity of interactions between actors. Both property and torts solve the information cost problem with “in rem” rights in similar ways, by chopping up the world of interactions between parties into manageable chunks - modules - that are semi-autonomous. Instead of employing “things” to achieve modularity, tort law employs other strategies to limit information costs, by hiding information and making tort law less context-dependent than one might expect from a “law of actions.” The features of tort law emphasized by noneconomic theories of tort law - corrective justice, civil recourse, and natural rights - can be seen as managing the complexity of tort law. These include tort’s bilateral structure, the content of duties, and proximate cause. As in property, a heavy reliance in tort law on simple moral norms, which are easy to communicate and self-enforce, receives a partial explanation in terms of information costs. Economic analysis and broadly moral theories of torts turn out to be closer together at the descriptive level than is usually thought.
October 17, 2011
Do Re Me Foreclosure
Singing protesters interrupt foreclosure proceedings at the New York State Supreme Court.
Property In My Dance Moves
An article at Slate discusses the requirements for claiming a property interest in a set of dance moves. The piece then reports that "Beyoncé may have cribbed dance moves from a Belgian choreographer, Anne Teresa de Keersmaeker, for her new music video “Countdown.” See for yourself:
Bonus fun: The article looks into the zoning implications of the movie Footloose.
Rents Creeping Up
The New York Times reports that rents are rising across the city:
Despite record low interest rates, tightened lending standards have denied mortgages to many people who might have succeeded several years ago. With few qualified buyers and a stubbornly high unemployment rate, new home prices across the country have stagnated or fallen.
“There are new households forming all the time,” Ms. Hannigan said, “and people need a place to live, so given these circumstances, it is not surprising rents are rising.”
A little research shows that the problem isn't confined to New York. According to USA Today, " Nationwide, rents are expected to rise about 4% this year, Humphries says, and will also rise in 2012. Strong demand is driving rents up as homeowners lose homes to foreclosure and become renters. Skittish consumers are also delaying home purchases, given concerns about the economy."
Salkin & Gross on International Comparative Property Rights
Patricia Salkin (Albany) and Daniel Gross have posted International Comparative Property Rights: A Cross-Cultural Discipline Comes of Age on SSRN. Here's the abstract:
This article provides an overview of the differences and similarities among a select group of nations through an examination of their real property protection regimes. The countries selected – South Africa, India, Chile, Singapore and Ghana – were chosen to illustrate how geographical, social, and economic diversity all contribute to different property rights cultures and legal approaches. Part II of this article examines general international or global factors that affect property rights. Part III offers a focused look at the historical and cultural development of property rights in the five selected countries. Part IV follows with a discussion of some of the domestic factors present in these five different countries that contribute to or influence the development and enforcement of different property rights regimes. The article concludes in Part V with a discussion about the importance of understanding the property rights regimes in other countries to better enable practitioners to provide responsible legal counsel to clients.