Friday, June 8, 2012
I visited New York City a few weeks ago and stayed in a hotel at 42nd and 10th. My room looked south, so although the weather was hazy for most of my visit, I could observe the construction of 1 World Trade Center and (I think) 4 World Trade Center.
Although I was more than three miles north of the World Trade Center site, the 1 World Trade Center building is obviously significantly taller than any structure south of Times Square. (I know, duh. When it is completed in 2013, with its nearly 400 foot spire, 1 WTC will be the tallest building in the Western Hempishere and the third tallest building in the world.) Following up on Steve's post regarding cranes on the top of skyscrapers, this photo more clearly shows the cranes on top of 4 World Trade Center. Unfortunately, the top of 1 World Trade Center is obscured by clouds.
All of this is background to introducing a really interesting article in today's New York Times regarding the history of skyscrapers. I love the Streetscapes column in the Times -- they do a wonderful job of blending the history of New York City real estate with present issues. This article is no exception. My favorite tidbit:
In 1897 The Record and Guide, alarmed by a proposal for a building 2,000 feet high, protested that New York was open “to attack from the audacious real estate owner” who cared nothing about robbing light from the neighbors, adding, “All that is needed is a barbarian with sufficient money and lunacy.”
The article discusses the historical animosity towards skyscrapers in New York, and the political battles regarding the land use restrictions that were put in place after the turn of the last century. The article begins and ends with a description of the construction of 1 World Trade Center, concluding:
No one talks seriously about banning skyscrapers anymore; indeed congestion has been in recent decades praised, not derided. And so we have before us the prospect of a tower one-third of a mile high, that will be considered a monument of civic pride, a literal triumph out of tragedy. What people would have said in the 1880s and 1890s is barely a footnote.
But as a law professor, of course, I love footnotes.
It's no secret that Walmart often faces fierce opposition when it announces plans to enter into a new community. Well, two young economists have added another data point in the fight over the effects of the big blue stores. Devin Pope, an assistant professor at the University of Chicago's business school, and his brother, Jaren, an assistant professor at BYU, tested how the presence of a Walmart store influences property values.
According to their research, the value of homes within half-a-mile of a Walmart increase an average 2 to 3 percent more than homes that aren't close to the giant retailer. Homeowners with property a half-mile to a mile from a Walmart see a 1 to 2 percent bump.
The study concludes, "On average, the benefits to quick and easy access to the lower retail prices offered by Wal-Mart and shopping at these other stores appear to matter more to households than any increase in crime, traffic and congestion, noise and light pollution or other negative externalities that would be capitalized into housing prices."
Thursday, June 7, 2012
The National Trust for Historic Preservation just released it's annual list of endangered architectural, cultural, and natural sites. This years list includes Theodore Roosevelt's Ranch, Princeton Battlefield, and Malcolm X's house. See the full slideshow here.
(Image: Princeton Battlefield from Flickr user thisistami)
Tim Mulvaney (Texas Wesleyan) has posted Exactions for the Future (Baylor Law Review) on SSRN. Here's the abstract:
New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. Yet it is not clear these practical impediments are sufficient to warrant the near categorical prohibition on such exactions that is imposed by current Takings Clause jurisprudence. After analyzing the features of takings law that constrict the use of such an exactions scheme, this article offers an alternative approach to exaction imposition involving temporal segmentation of the government’s sought-after interest, which could provide a public tool to address anticipated future harms while offering at least some protection against takings claims.
Wednesday, June 6, 2012
As I mentioned last month, the Real Property Trust and Estate Law Section of the ABA will host monthly "Professor's Corner" Conference Calls featuring three property professors who will discuss recent cases. You do not need to be a member of the section or the ABA to participate in the call, but we certainly hope that you will consider joining.
The June call will be held on June 13th at 12:30 eastern/11:30 central and so on. The call-in information is:
Dial in number: 866/646-6488
Participant Pass code: 9479109954
I will moderate the June call, which will feature:
Ray Brescia, Visiting Clinical Associate Professor of Law at Yale, currently on leave from Albany Law, will discuss recent developments in "Reverse Redlining" litigation in the wake of the financial crisis. He will focus on recent settlements of actions against Wells Fargo and Countrywide Financial, and provide a brief overview of other ongoing litigation.
Shelby Green, Associate Professor at Pace Law School will discuss Italian Cowboy Partners, Ltd. v. The Prudential Ins., Co. Of Am., 341 S.W.3d 323 (Tex. 2011). In this case, the court considered whether disclaimer-of-representations language in a lease contract precludes a fraud in the inducement claim.
John V. Orth, William Rand Kenan Jr. Professor of Law at University of North Carolina School of Law will discuss RBS Citizens, N.A. v. Ouhrabka, 30 A.3d 1266 (Vt. 2011) in which the court considered a creditor’s challenge to the doctrine of tenancy by the entireties.
If you are interested in participating in future calls, please let me know!
The New York Times details how hydrofracking dollars are starting to pour into the small, rural communities of Ohio and Pennsylvania:
Here in Noble County, . . . Eclipse Resources, a Pennsylvania company, mailed $16 million in oil- and gas-leasing checks last month to 70 households whose property has been found to sit atop oil and gas reserves. Working with a lawyer in nearby Marietta, the residents were able to band together to negotiate an unusually lucrative deal with the company that paid $4,000 an acre and 19 percent royalties on oil and gas production, and included safeguards to protect water and land. (The standard has been $20 to $30 an acre, one-sixth royalty rates, and no protections for water and land.)
Christine Klein (Florida) has posted Water Bankruptcy (Minnesota Law Review) on SSRN. Here's the abstract:
Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although such distress may sound like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle, “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as climate change causes variability in the water supply, and as over-tapped rivers push ever more species to the brink of extinction.
Increasingly, states recognize that the solution lies in reallocating water rights to support critical values such as environmental preservation. Bedrock principles of water law — including the requirement of “beneficial use” and the public trust doctrine — support such reallocation. But any such attempt runs up against fierce resistance from those who hold the oldest water rights and insist on a strict interpretation of another core principle — that of priority. In a titanic struggle for dominance between foundational concepts of water law, priority has been losing ground. Bargaining in the shadow of the priority doctrine, watershed stakeholder groups have convened throughout the West to negotiate plans to reallocate water for society’s most pressing and beneficial needs. But with considerable unease, these groups have developed ad hoc processes in search of a consistent conceptual framework. To harmonize the rhetoric of priority with the reality of reallocation, this Article develops the new concept of “water bankruptcy” that draws an analogy between water reallocation and Chapter 9 municipal bankruptcy. Just as traditional bankruptcy provides a familiar, comprehensive, and well-reasoned model that gives debtors a fresh start under dire circumstances, so too might water bankruptcy assist states in restructuring debts and reallocating assets related to society’s most precious, life-sustaining, and irreplaceable resource.
Tuesday, June 5, 2012
The Supreme Court recently handed down a decision that could have a substantial effect on the fees that consumers pay during real estate transactions. The case, Freeman v. Quicken Loans, centered on a provision of the Real Estate Settlement Procedures Act (RESPA) that prohibits lender kickbacks and referral fees. The issue in Freeman was whether RESPA covers an "unearned" fee charged by the originator--these are fees for which lenders provide no service. SCOTUSblog reported that "the borrower Freeman argued that the plain language of the statute applies whenever a fee is “give[n]” for services that are not provided, even if the originator retains the whole fee. The lender Quicken argued that the statute applies only when the fee is shared between two parties (the classic “kickback” situation)."
Last week the court handed down a 9-0 opinion in favor of Quicken; "Unearned" fees do not violate federal law as long as they are not split with other party. The opinion declared that if Congress wants to control the level of the fees that a single actor can charge it would need to draft a more specific statutory provision.
The LA Times worries that the case opens the door to "controversial 'administrative' fees levied by real estate brokers, and could encourage the practice of 'marking up' fees by mortgage lenders, escrow officers and others that had been banned by federal regulators for the last decade."
George Lefcoe (USC) has posted Redevelopment in California: Its Abrupt Termination and A Texas-Inspired Proposal for A Fresh Start on SSRN. Here's the abstract:
This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.
Monday, June 4, 2012
Joseph Blocher muses over why countries no longer buy and sell territory from each other:
Somewhere along the way, the market for sovereign territory seems to have dried up, at least as far as I can tell. To be sure, there is still an active market for proprietary interests in public land; the federal government, after all, owns approximately 30% of the nation’s land. But borders–sovereign territory, rather than property–do not seem to be for sale, especially domestically. Why?
Read the post for no other reason than the great historical tidbit on Martha's Vineyard.
The New York Times investigates the lumpy distribution of college graduates in the nation's cities:
Dayton sits on one side of a growing divide among American cities, in which a small number of metro areas vacuum up a large number of college graduates, and the rest struggle to keep those they have. [...]
“This is one of the most important developments in the recent economic history of this country,” said Enrico Moretti, an economist at the University of California, Berkeley, who recently published a book on the topic, “The New Geography of Jobs.” The recession amplified the trend. Metro areas where more than one in three adults were college-educated had an average unemployment rate of 7.5 percent earlier this year, compared with 10.5 percent for cities where less than one in six adults had a college degree, according to Edward Glaeser, an economist at Harvard and the author of “Triumph of the City.
2. [149 downloads] Modern Chinese Real Estate Law: Property Development in an Evolving Legal System (Chapter 1)
Gregory M. Stein (Tennessee)
3. [116 downloads] Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores
Sarah Schindler (Maine)
4. [104 downloads] Irrevocability of Special Needs Trusts: The Tangled Web that is Woven When English Feudal Law is Imported into Modern Determinations of Medicaid Eligibility
Mary F. Radford, (Georgia State) Clarissa Bryan (Georgia State)
6. [64 downloads] Finding Nemo Dat in the Land Title Act: A Comment on Gill v. Bucholtz
Douglas C. Harris (British Columbia) & Karin Mickelson (British Columbia)
9. [59 downloads] Is the Common Law the Free Market Solution to Pollution?
Jonathan H. Adler (Case Western)