November 4, 2011
Disclosure of Death on Property
American Horror Story, a seriously disturbed new show on FX, spent several minutes debating property law in it's third episode. The house at the center of the show is a 1920s mansion in Los Angeles, lovingly restored with beautiful glass and wood. It is also the site of many, many murders over the years and may actually be evil.
The new family which purchased the house in the pilot were told of the murder-suicide of the house's previous owners. The realtor told the couple that she was required to disclose those deaths because they occurred in the house within the prior three years. She did not disclose the other murders. (It is unknown at this point in the show how many have actually died there.)
Not surprisingly, she wasn't exactly correct.
California Civil Code sec. 1710.2 provides in part: "a) No cause of action arises against an owner of real property or his or her agent, or any agent of a transferee of real property, for the failure to disclose to the transferee the occurrence of an occupant's death upon the real property or the manner of death where the death has occurred more than three years prior to the date the transferee offers to purchase, lease, or rent the real property..."
There isn't actually an affirmative requirement to disclose deaths which occurred on the property within the prior three years. There is, however, a more general requirement to disclose material issues that could impact the value of the home. For example, that the house is evil.
Changing Rules on Private Real Property in Cuba
The NY Times has an article today regarding Cuba's decision to allow citizens and permanent residents to buy and sell real estate. Transactions will be taxed at a rate of 8% and must be financed through the Cuba Central Bank. People will be permitted to own only two homes -- one residence and one vacation property. But despite the limitations, this is a huge free-market move for Cuba. It is anticipated that Cuban-Americans, who are now permitted to send money to their relatives per a 2009 executive order, will play a major role in the new private property boom.
Summer Research Grant Bleg
Our Associate Dean is interested in finding out a little more about the range of summer research grants at other institutions around the country. The faculty has been asking around and has accumulated information on, roughly, 15 schools. I thought maybe the blogosphere could help. If you're willing to share your institution's policies, please shoot me an email. I promise to keep you anonymous and, in return, I'll also send you a spreadsheet with all the data we collect. Specifically, we'd like to know:
(1) If grants are in any way conditional (i.e., do you receive the money only after getting an article accepted for publication?)
(2) If the amounts are the same across the board, or if they vary depending on faculty seniority or some other criteria
(3) if the availability of funding for summer projects varies from year to year, or if it's consistently available
(4) anything else that's useful.
Friday's Architecture Moment
Sarah Williams Goldhagen has a fascinating article on the stuning scale of urban infrastructure projects in China:
[S]ince the 1980s well over 100 million Chinese, and probably closer to 200 million, have moved from rural areas into urban areas. Projections estimate that in order to accommodate these new urban dwellers, China will need to build fifty cities housing one million people every year between now and 2030.
(Pic: Skyline of Bao'an, a city of 5 million people in southeast China)
Nolon on Land Use and Energy Conservation
John Nolon (Pace) has posted Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation on SSRN. Here's the abstract:
Land use tools and techniques have impressive potential to reduce energy consumption, improve the economy, and mitigate climate change. This article explores the little understood influence of local land use decision-making on energy conservation and sustainable development and how it can mitigate climate change if properly assisted by the federal and state governments. The construction and use of buildings combined with extensive vehicular travel throughout the nation’s human settlements consume large amounts of energy, and much of that consumption is highly inefficient. By enforcing and enhancing energy codes, encouraging the use of combined heat and power and district energy systems, properly orienting and commissioning buildings, incorporating renewable energy resources, and promoting transit and other methods of reducing vehicle miles travelled, local land use law’s potential to achieve energy conservation and sustainable development can be unlocked. These techniques can be organized at the neighborhood level and aggregated by adopting local Energy Conservation Zoning Districts in neighborhoods where significant energy conservation can be achieved. The article proposes federal and state policies, combining features of both the Coastal Zone Management Act and the Enterprise Zone initiative, that can facilitate local land use initiatives that will shape human settlements and control the built environment as a new path toward energy efficiency and climate change mitigation.
Reiss on Federal Housing Policy
David Reiss (Brooklyn) has posted Three Principles for Federal Housing Policy (Probate & Property) on SSRN. Here's the abstract:
Isolating first principles of housing policy helps identify what is intrinsic to that field. Once done, we can clearly analyze potential policy choices for housing specifically, as opposed to how they may contribute to some larger goal of social policy. Imposing some analytic structure here is of key importance because federal housing policy is a morass of programs and policies. This exercise should help to ensure that monies spent to increase the supply and quality of housing are used efficiently.
I argue that the three first principles that inform federal housing policy are (i) allowing all Americans to live in safe, well-maintained and affordable housing units; (ii) providing a specialized form of income redistribution that ensures that the income transferred is consumed in increased housing; and (iii) incentivizing Americans to take on the key attributes of Jefferson’s yeoman farmer: economic and social self-sufficiency as well as a jealous regard for one’s liberty.
November 3, 2011
Housing on the Margins
Here's a lenghty expose on the largely unregulated housing in California's Coachella Valley. Of particular interest to Property Prof, the article pins a lot of the problems on 1992 Farm Labor Housing Protection Act, an emergency measure that allowed farm owners to build mobile home parks of up to 12 units without obtaining zoning and land use permits. The article states:
Opportunistic landlords swooped in to erect an estimated 400 unpermitted parks, still known as “polancos,” that skirted basic health and safety regulations, including the placement of wells, septic systems and safe electrical wiring. The parks remained largely under the radar until the summer of 1998, when two people died in two different parks – one a teenager who was electrocuted when a fence became energized due to faulty wiring, the other a man electrocuted while working on repairs to his mobile home.
Cavanaugh on the Development of Property Law from Tort and Contract
Matthew Cavanaugh (Western State) has posted Contract Plus Tort = Property: The Trade Secret Illustration on SSRN. Here's the abstract:
This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a good example of how contract and tort total to property. This article then culminates in an explanation of how trade secrets illustrate that property is the sum of contract and tort, because property rights, remedies, and defendants are the total of contract and tort rights, remedies, and defendants. This article gives illustrations of how the thesis explains certain oddities from property law other than intellectual property, and the article then concludes.
November 2, 2011
Map of the Day
Osofsky et al. on Environmental Justice and the BP Oil Spill
Hari Osofsky and friends have posted Environmental Justice and the BP Deepwater Horizon Oil Spill (NYU Enviro Law Journal) on SSRN:
This Article analyzes the environmental justice implications of the BP Deepwater Horizon oil spill and proposes ways to better address these concerns currently and in the future. It explores the justice problems that have arisen with respect to the spill response, compensation, and employment and workers. The Article argues that these problems result from a mix of inadequate information, failure to incorporate environmental justice into planning, and statutory provisions that favor oil companies and limit protections for vulnerable populations. It proposes ways in which to address these causes in the context of this disaster and more broadly.
November 1, 2011
Closing the Gates to Adverse Possession
The New York Times reports on how private landowners who open their property to the public fend off adverse possession claims:
Lever House has been closing itself once a year since 1953, when it was the brand-new headquarters of Lever Brothers. On Sunday, temporary barricades are to be erected, bearing signs saying: “This area is closed to public use on behalf of and in the name of the owner.” Some time later, an employee who was present will sign an affidavit attesting to the closing.
(photo of the Lever House courtyard found with creative commons search)
Must Tenants Allow Landlords to Install Equipment to Benefit the Building
If the landlord wants to install antenna equipment on your balcony to improve Wi-Fi reception, do you have to allow it?
Korngold on Real Estate Brokers
Gerald Korngold (New York Law School) has posted Real Estate Brokers are Not 'Fiduciaries': A Call for Developing a New Legal Framework (Real Estate Law Journal) on SSRN. Here's the abstract:
Clients have brought actions against their real estate brokers seeking compensation for alleged improper behavior in dealing with the clients and their interests. Courts have typically adjudicated these cases by defining the broker as a “fiduciary” and then applying traditional fiduciary doctrines to the broker’s actions. This article argues, however, that real estate brokers are not true “fiduciaries” and do not share much in common with classic fiduciaries such as trustees and executors. For example, real estate brokers have a fundamental, inherent conflict of interest with their seller clients with regard to the terms of the sale, a typical seller should be able to recognize that the broker is operating under an incentive system that is at odds with the seller, the broker does not have legal power over the property and the transaction, and fiduciary models create disappointed expectations in buyers.
Other attempts to define real estate brokers as either “professionals” or “salespersons” create a false dichotomy. In actuality, brokers are both professionals and salespeople. Rules controlling broker conduct must reflect both of these functions in order to be effective. Designating brokers as “fiduciaries” has the deleterious effect of diluting the concept of the fiduciary in American law and creates confusion as to duties that true fiduciaries should observe. Courts should eschew decision by definition, especially when the definition is inappropriate. This article suggests that legislatures and courts should instead adopt a distinct, bespoke set of obligations governing the behavior of real estate brokers based on the reality of the marketplace and legitimate expectations of the parties.
Bross on the Relationship Between Land Use and Infrastructure Planning
James Bross (Georgia State) has posted Sewers: Infra Dig and Infra Dug (Urban Lawyer) on SSRN. Here's the abstract:
Julian Juergensmeyer is best known for his work on funding of infrastructure, but his seminal treatise on Agricultural Law raises the question of whether the infrastructure left unbuilt can best fulfill some planning goals. The relationship between infrastructure and planning has been studied in land use casebooks with the same handful of cases for several decades. This essay exams the viability of that handful of cases and examines the regulatory relationship between land use and infrastructure planning in contemporary law with particular focus on Oregon’s model.
October 31, 2011
When Property Disputes Get Personal
The New York Times chronicles how disputes over fracking are rupturing relationships in a number of small towns:
The dispute has pitted neighbor against neighbor, and has often set people who live in suburbs or villages against the farmers and landowners who live outside them. The discord is compounded by hard times on both sides and by communication online giving everyone instant access to limitless information confirming their point of view.
The Fastest Growing Cities in the World
From Foreign Policy, here are the seven fastest growing cities in the world:
whereas it once was the alpha world cities such as New York, London, and Shanghai that were the primary magnets for young people looking to make their fortunes, now a surprising new crop of boomtowns, from the Middle East to Mali, are seeing their populations leapfrog to the top of the list.
Chan, Gedal, Been, and Haughwout on The Role of Neighborhood Characteristics in Mortgage Default Risk
Sewin Chan, Michael Gedal, Vicki Been, and Andrew Haughwout have posted The Role of Neighborhood Characteristics in Mortgage Default Risk: Evidence from New York City on SSRN. Here's the abstract:
Using a rich database of non-prime mortgages from New York City, we find that census tract level neighborhood characteristics are important predictors of default behavior, even after controlling for an extensive set of controls for loan and borrower characteristics. First, default rates increase with the rate of foreclosure notices and the number of lender-owned properties (REOs) in the tract. Second, default rates on home purchase mortgages are higher in census tracts with larger shares of black residents, regardless of the borrower’s own race. We explore possible explanations for this second finding and conclude that it likely reflects differential treatment of black neighborhoods by the mortgage industry in ways that are unobserved in our data.