May 11, 2012
Smith on the Law of Neighbors
James Smith (Georgia) has posted Some Preliminary Thoughts on the Law of Neighbors (Georgia Journal of International and Comparative Law) on SSRN. Here's the abstract:
A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.
Owners of neighboring parcels have sets of rights, privileges, and duties that define their legal relationships with neighbors. In Anglo-American law, those rights, privileges, and duties are components of real property law, but they are not a recognized category of real property law. Rather, they represent the application of general doctrines and rules to neighbors, instead of a distinct and cohesive body of law of its own. Other legal systems have developed distinct bodies of law to govern relations among neighbors.
The law of neighbors or “neighborhood law” is not presently a recognized type of law practice in the United States, and it will not likely become one anytime in the near future. In part this is the case because neighbor law disputes typically do not involve high financial stakes and resulting incentives for lawyers to market themselves as experts in the area. This Article suggests that if the field of neighbor law develops in the United States, academics will have to lead the way.
This Article does three things. First, it introduces the “stranger model” and the “friend model” of neighbors law, using these models as a frame for describing three components of existing U.S. law applicable to neighboring landowners. Second, it briefly describes the extent to which South Africa and Scotland have come to describe neighbors law as a discrete legal category, which correlates to the stranger model and friend model. Third, it concludes by making several suggestions on how the models may help in the construction of a coherent law of neighbors.
May 10, 2012
Eminent Domain and the Keystone Oil Pipeline
Ilya Somin looks at how the TransCanada corporation is using eminent domain to acquire property to build the Keystone oil pipeline.
You Should Really Buy a House. Like, Right Now. Go Do It.
Felix Salmon shows that you can save money by buying a house:
In the chart, the red line shows the mortgage payment you’d have to make if you took out a standard 30-year mortgage for the median asking sales price for vacant sale units. In reality, your mortgage payment would be lower, since this doesn’t take into account any downpayment. But in any case, thanks to ludicrously low mortgage rates below
9% 4%, that number is now lower than the median national rental price. This is the first time that’s happened since 1988, and probably for quite some time before that, too.
Remember that houses for sale tend to be bigger and more valuable than houses for rent, too — which only goes to underscore how good a deal buying is versus renting right now.
Rose on Medieval Estate Planning
Jonathan Rose (Arizona State) has posted Medieval Estate Planning: The Wills and Testamentary Trials of Sir John Fastolf on SSRN. Here's the abstract:
Medieval will-making has often been associated with efforts right before death. But estate planning activity at an earlier time was also possible and was pursued by the upper reaches of English society. Sir John Fastolf (1380-1459), a wealthy East Anglian knight, made substantial efforts to plan his estate. He made several wills and charters enfeoffing land to his use. But his efforts faced many obstacles and ultimately failed, resulting in a contest regarding the validity of his death-bed will.
This essay documents those estate planning activities. It does so by recounting a story of longstanding interest to medieval historians and other scholars. Using extensive primary sources, the essay, for the first time, explores completely and orderly all the relevant wills, charters, and other documents as well as the voluminous testimony in the will contest.
The full story shows that Fastolf’s estate planning efforts were ultimately frustrated by deathbed changes, other claims on the property, the need for royal approval, political factors, conflicts among executors, and papal intervention. Nor is it clear whether they ever could have been successful or whether medieval estate planning could ever be secure.
May 9, 2012
ABA-RPTE "Professors' Corner" Teleconference on Property Cases
Take a break from grading, administering, or writing exams today and call in to the "Professor's Corner" teleconference sponsored by the American Bar Association's Real Property Trust and Estate Law Section. Wilson Freyermuth, Matt Festa, and I will be discussing three recent cases that will be of interest to property profs and practitioners alike. Whether you are a member of the ABA or not, you are welcome to call in and spend a little time with your fellow property profs today.
These calls will be held monthly, on the second Wednesday of each month at 12:30 eastern time. If you have a recent case that you would like to discuss on a future call, please let me know!
Details of the call are below:
The ABA Real Property, Trust and Estate Law Section’s Legal Education and Uniform Laws Group has a regular (and free!) monthly teleconference, “Professor’s Corner,” in which a panel of three law professors highlight and discuss recent real property cases of note.
The May 2012 call is this Wednesday, May 9, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific). The call-in number is 866-646-6488. When prompted for the passcode, enter the passcode number 557 741 9753.
The panelists for May 9, 2012 are:
Professor Tanya Marsh, Assistant Professor of Law, Wake Forest University School of Law. Professor Marsh will discuss Roundy’s Inc. v. National Labor Relations Board, 674 F.3d 638 (7th Cir. 2012). Decided in March 2012, this case held that Roundy’s (a non-union supermarket chain) did not have the right to exclude third parties (in this case, non-employee union organizers) from common areas of shopping centers in which it operated.
Professor Matt Festa, Associate Professor of Law, South Texas College of Law. Professor Festa will discuss Severance v. Patterson, 2012 WL 1059341 (Tex. 2012). In this case, decided March 30, 2012, the Texas Supreme Court struck down the “rolling easement” theory of public beachfront property access under the Texas Open Beaches Act.
Professor Wilson Freyermuth, John D. Lawson Professor and Curators’ Teaching Professor, University of Missouri. Professor Freyermuth will discuss Summerhill Village Homeowners Ass’n v. Roughley, 270 P.3d 639 (Wash. Ct. App. 2012), in which the court refused to permit the mortgage lender to exercise statutory redemption after its lien was extinguished by virtue of a foreclosure sale by an owners’ association to enforce its lien for unpaid assessments. He will also discuss First Bank v. Fischer & Frichtel, 2012 WL 1339437 (Mo. April 12, 2012), in which the Missouri court rejected the “fair value” approach to calculating deficiency judgments under the Restatement of Mortgages.
Does City Living Enhance Creativity?
A conversation between Richard Florida and Jonah Lehrer:
[T]he sheer disorder of the metropolis maximizes the amount of spillover. As Jacobs once wrote, “By its nature, the metropolis provides what otherwise could be given only by traveling; namely, the strange.” Cities force us to interact with strangers and with the strange. They pry the mind open. And that is why they are the idea that has unleashed so many of our new ideas.
Blomley on Progressive Property & Performativity Theory
Nicholas Blomley (Simon Fraser) has posted Performing Property, Making the World on SSRN. Here's the abstract:
Scholars under the ‘Progressive Property’ banner distinguish between dominant conceptions of property, and its underlying realities. The former, exemplified by Singer’s ‘ownership model,’ is said to misdescribe extant forms of ownership and misrepresent our actual moral commitments in worrisome ways. Put simply, it is argued that our representations of property’s reality are incorrect, and that these incorrect representations lead us to make bad choices. Better understandings of the reality of property should lead to better representations, and thus improved outcomes.
However, the relationship between ‘reality’ and ‘representation’ is not made fully explicit. This essay seeks to supplement progressive property through a more careful exploration of the relationship between the two, by drawing from performativity theory. From this perspective, accounts of property are in an important sense not descriptions of an external reality, but help bring reality into being. The ownership model is not so much constative (descriptive) as performative. Such an account, I suggest, directs us to several important insights. Rather than asking what property is or is not, the task becomes that of trying to describe how property is performed (or not) into being. But concepts do not stand alone: rather, other ideas, people, things and other resources have to be enrolled in complicated (and often fragile) combinations. Rather than criticizing the ownership model for its mismatch with reality, we might consider that models do not have to be ‘true,’ just successful. As such, it may be more useful for progressive scholars of property to redirect their energy into enquiring how it is that certain conceptions of property are successful, and others not. To do so also requires that we think about the role of scholars in performing property, for good or bad, into being.
May 8, 2012
Property Law Review
For those with antipodean interests, the latest edition of the Property Law Review has just been released.
It looks to have a good number of articles on strata titles (or unit titles, or condominiums, or multi-owned housing, etc). All the better!
The ABA Section of Real Property, Trust and Estate Law Fellows Program
Troy Rule (Missouri) passes on this info about the ABA Section of Real Property, Trust and Estate Law Fellows Program
The ABA Section of Real Property, Trust and Estate Law Fellows Program encourages the active involvement and participation of young lawyers in Section activities. The goal of the program is to give young lawyers an opportunity to become involved in the substantive work of the RPTE Section, while developing into future leaders.
As a RPTE Fellow, You Will:
• Be assigned to work with a substantive Committee Chair, who will serve as a mentor
and help expose you to all aspects of committee membership
• Get involved in a substantive project, which could include writing for a RPTE publication
• Become a Section liaison to the ABA Young Lawyers Division or your local bar association
• Become an active member of the Membership Committee
• Attend important Section leadership meetings
Click here for more information and to view the 2012 Fellows application
The Fellowship appointment is for two years. To be considered for selection, a person (1) must have practiced in the trusts and estates or real property area for at least one year (and be younger than 36 years of age or have been admitted to the bar less than 10 years), and (2) should have demonstrated leadership at the state or local bar level or in the Young Lawyers Division of the ABA. As part of the Section's commitment to diversity, three of the six Fellows selected will be minority applicants.
Fellows applications are due June 15, 2012.
According to Troy, you need not have “demonstrated leadership at the state or local bar level or in the Young Lawyer’s Division of the ABA” to get a fellowship. The fellowship provides $4,000 to cover expenses for four great trips to ABA conferences over a period of two years. E-mail Troy (firstname.lastname@example.org) if you have any questions about the fellowships.
Sadly, I aged out of this opportunity a while ago.
[Comments are held for approval, so there will be some delay in posting]
Daniel Gross, of The Wall Street Journal, looks at the rise of renting in America and pronounces it a good thing:
Americans are increasingly acclimating to the idea of giving up the stability of being an owner for the flexibility of being a renter. This may sound like a decline in living standards. But the new realities of our increasingly mobile economy make it more likely that this transition from an Ownership Society to what might be called a Rentership Society, far from being a drag, will unleash a wave of economic efficiency that could fuel the next boom.
Carlson on Priceless Property
Kirsten Carlson (Wayne State) has posted Priceless Property (Georgia State Law Review) on SSRN. Here's the abstract:
In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.
May 7, 2012
Jane Jacobs, Tea Partier?
Anthony Flint makes the case:
Perhaps the greatest house-of-mirrors effect lies with the Tea Party, whose activists have been shutting down and disrupting planning meetings and public hearings across the country. Like Jane, these folks are anti-planning. Like Jane, there's a strong libertarian streak. The very tactics that brought about public participation are now being used by those with very different views from the progessive planners with the dog-eared copy of Death and Life on their shelf. Early on, from the battles over Washington Square Park to Lomex, Jane insisted on a singular guiding principle: no compromise. Don't accept the crumbs of mitigation in exchange for acquiescence. She didn't want a smaller highway — she wanted no highway. Jane Jacobs was a Tea Partier.
Iconic U.S. Town Names Fade
A front page story from USA today on the demise of a small piece of Americana:
Unusual local place names, often chosen by pioneer settlers to make a joke, mark an occasion or grind an axe, are slowly being squeezed out by ones fabricated by developers to market real estate, according to Mike Hill of the North Carolina Office of Archives and History.
[. . .] Over time fewer settlements will be called things such as Zap, N.D., Jay Em, Wyo., and Fisty, Ky. — all post offices slated for closing. And more will have synthetic names that spell harbor with a "u" and town with an "e." Hill calls this process "suburban swallow up;" colorfully named places are slowly eased out by subdivisions, some named after the natural features (Bretton Woods) or creatures (Grouse Run) they obliterate or displace.
Serkin on Eminent Domain and Democratic Accountability
Christopher Serkin (Brooklyn) has posted Condemning the Decisions of the Past: Eminent Domain and Democratic Accountability (Fordham Urban Law Journal) on SSRN. Here's the abstract:
This Essay argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The author proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for acquiring "democratic legitimacy." He explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York's waterfront, which had been essentially cut off by highways.
May 6, 2012
What happened to real property?
Look around the common law world, and you will see plenty of LLM programmes that include a specialisation in intellectual property. Look around again, and you find it hard to find any that include a specialisation in real property.
Indeed, for LLM programmes based on graduate coursework (as is the case in England, Australia, New Zealand, etc; as opposed to the US-style LLM programmes that involve JD courses), there are few individual courses on real property at all at a graduate level.
Where these do exist, they are often treated as part of "commercial" specialisations or are more"property, trusts and private law" type-courses. Real property doesn't seem to deserve attention on its own.
We can then reflect that most lawyers spend more time dealing with legal issues relating real property than intellectual property (or is this a wrong assumption?)
When did intellectual property overtake real property in the academy? Why? Is it just student supply and demand? And what can we do about it? How do we restore real property to its proper status?