June 15, 2012
Homeowners’ Association Must Allow Political Signs
Eugene Volokh has posted a concise summary of Mazdabrook Commons Homeowners’ Ass’n v. Khan (N.J. June 13, 2012), an important property case out of the New Jersey Supreme Court:
The New Jersey Supreme Court is one of the few state courts that has interpreted its state constitution as restricting at least some private property owners, such as privately owned shopping malls and private universities. In today’s case, the court applied this to homeowners’ associations vis-a-vis their members, and held that the associations may not entirely ban homeowners from displaying political signs, though they may impose reasonable content-neutral rules on the size and number of those signs. (The court specifically stressed that, “[w]e do not suggest … that the Association could properly distinguish among different types of political signs.”)
Hudson on Coastal Land Loss
Blake Hudson (LSU) has posted Coastal Land Loss and the Mitigation-Adaptation Dilemma: Between Scylla and Charybdis (LSU Law Review) on SSRN. Here's the abstract:
Coastal land loss is an inevitable consequence of the confluence of three primary factors: population growth, vanishing wetlands, and rising sea levels. Society may either mitigate coastal land loss by engaging in human engineering projects that create technological solutions or restore natural processes that protect the coastal zone, or it may choose to adapt to coastal land loss by shifting development and other human and economic resources out of areas especially at risk for coastal land loss. After detailing the primary threats to coastal lands and discussing the two primary means of addressing coastal land loss - mitigation and adaptation - this article makes three normative claims for why policy-makers should approach coastal land loss mitigation in particular with caution: 1) uncertainty of mitigation’s effectiveness scientifically and institutionally; 2) the political expediency of choosing mitigation over adaptation, and 3) the fact that failure to adapt past land use activities in the coastal zone has contributed to the need to adapt or mitigate today.
June 14, 2012
Map of the Day: UFO Sightings
UFO sightings per 100,000 people:
International Economic Development Takings
In Taiwan a family protests the taking of their home to make way for high-rise apartments:
The block where the Wang Family House was located was chosen by Le Young, a construction company, to build a 15-story high-rise apartment building as an urban renewal project.
Although the family has refused to give up its land, the construction firm has already received the consent of more than 75 percent of the landowners on the block, and according to the Urban Renewal Act (都市更新條例), the firm can now ask the city government to help it evict the Wangs and demolish their home.
June 13, 2012
Backfilling Vacant Borders Stores
The Wall Street Journal has an interesting piece on the struggle of shopping center owners to backfill former Borders locations, a year after the book seller closed its doors. In Winston-Salem's Thruway Shopping Center, the Borders space is being retooled for Trader Joe's to open in August. While I miss having the book store, I welcome not having to drive to Charlotte for my favorite Trader Joe's items. But as chains which occupy large boxes fail, backfilling those spaces becomes more problematic, particularly at the healthy rents the former tenants paid. For example, the Circuit City location on Hanes Mall Boulevard remains empty, three years after it closed its doors.
The Great Commons in the Sky
Sad news: Elinor Ostrom, the first woman to win a Nobel Prize in Economics, died yesterday morning at Indiana University's Health Bloomington Hospital. As the Nobel Committee stated:
Elinor Ostrom has challenged the conventional wisdom that common property is poorly managed and should be either regulated by central authorities or privatized. Based on numerous studies of user-managed fish stocks, pastures, woods, lakes, and groundwater basins, Ostrom concludes that the outcomes are, more often than not, better than predicted by standard theories. She observes that resource users frequently develop sophisticated mechanisms for decision-making and rule enforcement to handle conflicts of interest, and she characterizes the rules that promote successful outcomes.
Here's NPR's story:
And here's a link to a brief lecture by Ostrom were she explains her work.
Davidson on Property and Identity
Nestor Davidson (Fordham) has posted Property and Identity: Vulnerability and Insecurity in the Housing Crisis (Harvard Civ. Rights & Civ Liberties L.J.) on the web. Here's the last paragraph of the intro:
The housing crisis, in short, holds lessons about the ineluctable distortions that the intimate landscape of property can generate. This Article focuses on three facets of that landscape. Part I examines the role that status anxiety played in the housing boom. Part II turns to emotional aspects of how the pendulum has swung against homeownership after the downturn. Part III reflects on what these dynamics suggest for rethinking homeowner- ship as a touchstone, and for re-examining the centrality of consumption more broadly. The Article concludes in Part IV by arguing that the legal system and housing policy must be more cognizant of these emotional vari- ables, even if the institutional mechanisms available to do so are relatively limited.
(HT: Land Use Prof Blog)
June 12, 2012
Inclusionary Zoning is Hard
A few years ago, Washington D.C. passed an ordinance that requires residential developers to price 10 percent of units in new buildings at below market rates. You might think these units would sell out within days of hitting the market, but that isn't the case. Many sit empty. Lydia DePillis examines the dark underbelly of D.C.'s attempt to diversify its fancy neighborhoods:
The very first two condos created through inclusionary zoning are in a building at 2910 Georgia Ave. NW. While the rest of the units have sold out, these two have been on the market for almost a year now. [...] The problem is, you can't get a mortgage—or not very easily, at least. Most low- to moderate-income buyers want to get a Federal Housing Administration-backed loan. But the banks that FHA works with don't want to issue loans on properties that can't be resold at market rates in the event they go into foreclosure.
Hockett on Using Eminent Domain to Beat the Housing Crunch
Robert Hockett (Cornell) has posted It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery on SSRN. Here's the abstract:
Respected real estate analysts now forecast that the U.S. is poised to experience a renewed round of home mortgage foreclosures over the coming 6 years. Up to 11 million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.
I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust themselves. Collective action problems of this sort require duly authorized collective agents for their solution. At present, the optimally situated such agents for purposes of mortgage market clearing are municipal governments exercising their traditional eminent domain authority.
I sketch a plan pursuant to which municipalities, in partnership with investors, can condemn underwater mortgage notes, pay mortgagees fair market value for the same, and systematically write down principal. Because in so doing they will be doing what parties themselves would do voluntarily were they not challenged by structural impediments to collective action, municipalities acting on this plan will be rendering all better off. They will also be leading the urgently necessary project of eliminating debt overhang nationwide and thereby at last ending our ongoing debt deflation.
June 11, 2012
It looks like the ink is dry on this year's Entry Level Hiring Report put together by Prawfsblawg. Special congratulations are in order for all the new profs who have expressed an interest in teaching property. Welcome future property czars:
Amanda Reid (Florida Coastal)
Andrea Boyack (Washburn)
Jessica Shoemaker (Nebraska)
Kathleen Morris (Golden Gate)
Kellen Zale (Houston)
M. Alexander Pearl (FIU)
Mark Templeton (Chicago)
Nadav Shoked (Northwestern)
Priya Gupta (Southwestern)
Sally Richardson (Tulane)
Yoon-ho Alex Lee (USC)
Please let me know if I've missed anyone.
Kelly on Strategic Spillovers
Dan Kelly (Notre Dame) has posted Strategic Spillovers (Columbia) on SSRN. Here's the abstract:
The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This Article investigates the costs of strategic spillovers, the circumstances in which threatening to engage in these spillovers may be credible, and potential solutions for eliminating, or at least mitigating, this form of opportunism through externalities.