Saturday, December 8, 2012

"It's Easy to Tell Who's Going to Win in Eviction Court"

That's the conclusion of sociologist Matthew Desmond, reporting in the New York Times on his study of eviction court proceedings.

On one side of the room sit the tenants: men in work uniforms, mothers with children in secondhand coats, confused and crowded together on hard benches. On the other side, often in a set-aside space, are not the landlords but their lawyers: dark suits doing crossword puzzles and joking with the bailiff as they casually wait for their cases to be called.

Desmond reports that in many housing courts around the country, 90% of landlords are represented by counsel, and 90% of tenants are not.  What difference does it make?  As Desmond reports, a recent study of the Boston Bar Association showed that in a randomized sample of 129 cases, "two-thirds of tenants offered full representation avoided eviction, compared with one-third who were offered limited assistance like instructional clinics."  

As Desmond points out, the consequences of eviction can be at least as economically, socially, and psychologically devastating for the evictees as incarceration.  And, there is a benefit to providing representation to low-income tenants facing eviction for the rest of us: it's expensive, but providing shelter to those left homeless by eviction is actually more expensive.

And yet . . . there is something in us that revolts at the thought that someone behind in their rent should get a free lawyer.  I know that if I presented the idea to my students, some would balk.  Especially my older students who are landlords, who believe that the system is already stacked against them, not against their tenants.  It seems to me that there is a greater disconnect about the balance of legal power between landlords and tenants than in most other areas of law.  Both sides see the other as unfairly advantaged by the system.

I'd be curious to know whether other professors find the same about their students.


Mark A. Edwards



December 8, 2012 in Landlord-Tenant | Permalink | Comments (0) | TrackBack (0)

Friday, December 7, 2012

The Earth at Night


For more cool stuff, see here.

Steve Clowney

December 7, 2012 | Permalink | Comments (1) | TrackBack (0)

Maass on Rent Control

Sue-Mari Maass (Stellenbosch - South Africa) has posted Rent Control: A Comparative Analysis (Potchefstroom Electronic Law Journal) on SSRN.  Here's the abstract:

Recent case law shows that vulnerable, previously disadvantaged private sector tenants are currently facing eviction orders – and consequential homelessness – on the basis that their leases have expired. In terms of the case law it is evident that once their leases have expired, these households do not have access to alternative accommodation. In terms of the Constitution, this group of marginalised tenants have a constitutional right of access to adequate housing and a right to occupy land with legally secure tenure. The purpose of this article is to critically analyse a number of legislative interventions, and specifically rent control, that were imposed in various jurisdictions in order to provide strengthened tenure protection for tenants. The rationale for this analysis is to determine whether the current South African landlord-tenant regime is able to provide adequate tenure protection for vulnerable tenants and therefore in the process of transforming in line with the Constitution. The legal construction of rent control was adopted in pre-1994 South Africa, England and New York City to provide substantive tenure protection for tenants during housing shortages. These statutory interventions in the different private rental markets were justified on the basis that there was a general need to protect tenants against exploitation by landlords.

However, the justification for the persistent imposition of rent control in New York City is different since it protects a minority group of financially weak tenants against homelessness. The English landlord-tenant regime highlights the importance of a well-structured social sector that can provide secure, long-term housing options for low-income households who are struggling to access the private rental sector. Additionally, the English rental housing framework shows that if the social sector is functioning as a "safety net" for low-income households, the private sector would be able to uphold deregulation. In light of these comparisons and the fact that the South African social sector is not functioning optimally yet, the question is whether the South African private sector is able to provide the required level of tenure protection for struggling tenants. Recent case law shows that tenants are at liberty to lodge unfair practice complaints with the Rental Housing Tribunals on the basis that the landlords' ground for termination of the lease constitutes an unfair practice. The Court defined an unfair practice as a practice that unreasonably prejudices the tenants' rights or interests. This judicial development signifies some transformation in the private sector since it allows the Tribunals to scrutinise landlords' reasons for termination of tenancies in light of tenants' personal and socio-economic circumstances. The Tribunals are therefore empowered to weigh the interests of both parties and decide whether to confirm termination of the lease or set aside such termination. In light of this recent development, the Tribunals can provide strengthened tenure protection for destitute tenants on a case by case basis, which incorporates a flexible context-sensitive approach to the provision of secure housing rights in the landlord-tenant framework. This methodology is similar to the German approach. Even though this judicial development is welcomed, it raises some concerns with regard to landlords' property rights and specifically landlords' constitutional property rights since Tribunals are now at liberty to set aside contractually agreed grounds for termination of leases without any statutory guidance. The legislation fails to provide any information regarding legitimate grounds for termination, which might have to be rectified in future. The grounds listed in the rent control legislation should serve as a starting point to determine which grounds for termination of a lease should generally be upheld. However, German landlord-tenant law shows that a statutory ground for termination of a lease should not be imposed in an absolutist fashion but rather place a heavier burden on the tenant to prove why the lease should not come to an end.

Steve Clowney

December 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 6, 2012

Supreme Court Decides Arkansas Game and Fish Commission

On Tuesday, the Supreme Court released its opinion in Arkansas Game and Fish Commission v. United States. The case centered on a claim made by the Arkansas Game and Fish Commission that the federal government’s temporary flooding of its property constituted a taking requiring compensation under the Fifth Amendment. The flooding had caused almost $6 million damage to the forests owned by the Commission.

Here are the key paragraphs:

We rule today, simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence... of a compensable taking....

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action.... So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use.... Severity of the interference figures in the calculus as well.

Here's some roundup on the decision:

SCOTUSblog: What did appear to be somewhat novel about the opinion was the mini-lecture that Justice Ginsburg offered to what her opinion . . . . “To reject a categorical bar to temporary-flooding takings claims,” Ginsburg wrote, “is scarcely to credit all, or even many, such claims.”  After a prior ruling in a temporary occupation case, she added, “the sky did not fall…and today’s modest decision augurs no deluge of takings liability.”

Volokh: [T]he Court’s decision is clearly correct. [...] Unfortunately, the Court gives very little guidance on how to determine whether a given case of flooding is a taking or not. The opinion lists several factors that might be relevant, but does not explain how many need to be present before a taking can be said to have occurred, or what to do if some factors cut one way and some the other.

Constitutional Law Prof Blog: The ruling is not particularly surprising and only reversed and remanded a lower court decision that read precedent to give temporary floods a pass under the Takings Clause.

New York Times


Steve Clowney

December 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Perkins on Fracking

Perkins2Nancy Perkins (Duquesne) has posted The Fracturing of Place: The Regulation of Marcellus Shale Development and the Subordination of Local Experience (Fordham Envt'l Law Journal) on SSRN.  Here's the abstract:

The rapid pace of Marcellus Shale Development in Pennsylvania has brightened the economic outlook of the Commonwealth, but has seriously disrupted the environmental and social well-being of many small communities. The hydro-fracturing process that frees the natural gas embedded in the shale poses threats to water resources, air, wildlife, and aesthetics, which may collectively change unique attributes of place and the experience of local residents. In December of 2011, Pennsylvania’s General Assembly proposed legislation that would severely truncate local authority to enact ordinances that address environmental and land use concerns associated with gas drilling. The legislation was signed into on February 14, 2012. This article assesses the new restrictions through the lens of a feminist conception of sustainable development. By supplementing the traditional dimensions of sustainability with insights from feminist scholarship related to women and development, field research in community health, and legal theory, a more place- and people-specific framework for sustainable development emerges. When measured against this enriched framework, the local ordinance limitations in Pennsylvania’s legislation fall short. It is hoped that the application of a feminist-infused theory of sustainability to an existing development controversy will leave readers with a deeper understanding of the ways in which feminism can meaningfully inform sustainability issues.

Steve Clowney

December 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 5, 2012

Another Takings Case at the Supreme Court

Tim Mulvaney notes that "U.S. Supreme Court granted cert in its third takings case of the term, Horne v. U.S. Department of Agriculture.  This one involves the procedural issue of whether the federal government is subject to suit in a regular federal district court over its involvement in the annual raisin crop market or, as the Ninth Circuit Court concluded below, only in the Court of Federal Claims."  Lyle Denniston has done the knowledge on the case over at SCOTUSblog.\

Steve Clowney

December 5, 2012 | Permalink | Comments (0) | TrackBack (0)

FHA Backs More Mixed Use Projects

A recent Federal Housing Administration rule change has opened the door for more government-insured mortgages for residential properties in mixed-use developments.  Enacted in Septemeber, the rule change allows the government to back mortgages with down payments as low as 3.5 percent in

mixed-use buildings with commercial footprints of up to 35 percent, up from the previous 25 percent limit. Exceptions may be granted for projects in which as much as half of the space is commercial. Developers hope this, along with other FHA changes, will help revive condo sales.

Steve Clowney

(HT: Matt Yglesias)

December 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Fitzpatrick on First Possession

FitzDaniel Fitzpatrick (Australian National University) has posted The Relative Resilience of Property: First Possession and Order without Law in East Timor on SSRN.  Here's the abstract:

Much of the recent literature on customary property relations in sub-Saharan Africa has highlighted underlying characteristics of negotiability and indeterminacy. Custom is prone to reinvention as resource claimants manipulate customary references across multiple forums for property legitimation and authority. This article focuses on the resilience of customary property relations in East Timor. Based on a study of customary authority in the village of Babulo, we conclude that traditional Timorese narratives of first possession, where land authority is claimed by groups that trace descent to a mythic first settler, have acted as adaptive and resilient focal points for the reproduction of customary property relations in historical circumstances of war, colonization, and occupation. While a finding of customary resilience is not new to postcolonial contexts, the relative novelty of our study lies in its structured explanation for resilience in circumstances of war and displacement, based on the social ordering capacity of first possession principles themselves. This explanation, which derives from focal point theories for cooperative property relations, also takes into account a number of limits on the ordering capacity of first possession principles, which support a conclusion of relative or constrained resilience, particularly in terms of contested interpretations of possessory authority in contemporary East Timor.

Steve Clowney

December 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 4, 2012

Long Live the King (Or Queen)!

For anyone living in a cave, there's big news coming out of England; The Royal Family confirmed that Kate and William are expecting their first child. 

There are some property-related twists to this event.  First, a new rule has changed the traditional approach to succession.  In 2011, the heads of government of the 16 Commonwealth realms agreed to replace male preference primogeniture with gender-neutral primogeniture (also called absolute primogeniture). in which the first born child of a monarch is heir apparent regardless of gender.  Thus, Kate's first born child will be heir to the throne, regardless of its gender.

Second, Slate ran a light-hearted article today about what would happen if Kate is pregnant with twins.  Bottom line:

[I]t'll be a flat-out race down the royal birth canal. (And, yes, that's a three-word phrase I never thought I'd write, today, or any other.) Things would get really interesting, however, if Kate were to have a C-section, either out of choice or necessity. In that case, the doctor—perhaps with a bit of royal advice?—could potentially be picking the next Queen or King of England. Or more likely, the world would assume that he or she did.

Steve Clowney

(Clip: Prime Minister David Cameron announces that the 16 Commonwealth heads of government have agreed to end gender discrimination in the succession to the UK throne.)

December 4, 2012 | Permalink | Comments (0) | TrackBack (0)

Iglesias & Saylor on Fair Housing

Tim Iglesias (San Francisco) and Susan Saylor have posted Fair Housing at 30: Where We are, Where We are Going (California Real Property Journal) on SSRN.  Here's the abstract:

In Fair Housing at 30: Where We Are, Where We Are Going, 30 Cal. Real Prop. J. 16 (2012), Tim Iglesias and Susan Saylor first review how fair housing law in California has changed over the last 30 years. Then they evaluate its efficacy in promoting housing opportunities, reflect on the challenges facing fair housing today, and make some practical proposals for the future.

Steve Clowney

December 4, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

The Trouble with Thomas Jefferson


This weekend in the New York Times, legal historian Paul Finkelman (Albany) published a sharp broadside against Thomas Jefferson entitled “The Monster of Monticello.” He writes, "Jefferson was always deeply committed to slavery, and even more deeply hostile to the welfare of blacks, slave or free. His proslavery views were shaped not only by money and status but also by his deeply racist views, which he tried to justify through pseudoscience."

Almost immediately, Finkelman’s editorial came under stinging attack from David Post at The Volokh Conspiracy. I found this paragraph of Post's comments pretty jarring:

Jefferson, Finkelman tells us, was not a “particularly kind” slave-master; he sometimes “punished slaves by selling them away from their families and friends, a retaliation that was incomprehensibly cruel even at the time.” And he  believed that  ”blacks’ ability to reason was ‘much inferior’ to whites’ and that they were “in imagination they are dull, tasteless, and anomalous.”  So what?  Really – so what?  If you want to think that he was a bad guy — or even a really bad guy, with truly grievous personal faults — you’re free to do so.  But to claim that that has something to do with Jefferson’s historical legacy is truly preposterous.

I think that Post's defense of Jefferson falls flat.  Jefferson's slaveholding does affect his "historical legacy."  The issue isn't that Thomas Jefferson was a "really bad guy."  It's that he understood (perhaps more than any other founder) the stain of slavery, and yet ended up arguing for slavery's expansion and refused to free his own slaves (even upon his death).

I suppose it would be easier if evil was only committed by the thoroughly rotten, but that's very rarely the case.  As Ta-Nehisi Coates has written, "Jefferson sided with those who would eventually bring about the deaths of 600,000 Americans. [...] But Jefferson was a beautiful writer, and a great intellect . . . This admiration does not negate his moral cowardice. Both are true at the same time."

I also question the tone of Post's piece.  To invoke the destruction of human families, and to proclaim "so what" is callous.  To have your wife or your children sold to the Deep South was not a mere inconvenience that could be overcome with video chats and frequent flier miles, rather it rendered them dead to you. To put a fine point on it; Slavery not only stole your labor, it made you property in a very literal sense.

Steve Clowney

(Pic: Statue of Jefferson in front of a wall containing names of the slaves who worked Monticello during his lifetime)

December 3, 2012 | Permalink | Comments (1) | TrackBack (0)

Chinese "Kelo House" Knocked Down

The Chinese house that ended up in the middle of a highway has finally been destroyed by the local government:

Photographs of the house went viral on China's social media websites last month after 67 year-old duck farmer Luo Baogen and his wife refused to sign an agreement allowing it to be demolished. This resulted in authorities building a planned road around the building. As the images spread around the world, the five-storey building became a symbol of protest against forced property demolitions, one of China's most pressing social issues.

Luo voluntarily agreed to leave his home for 260,000 yuan (£26,058) in compensation, said Chen Xuecai, the chief of Xiayangzhang village, Wenling city, in the coastal Zhejiang province. "Luo Baogen received dozens of people from the media every day and his house stands in the centre of the road. So he decided to demolish the house," Chen added.

Steve Clowney

December 3, 2012 | Permalink | Comments (1) | TrackBack (0)

Recent SSRN Downloads

SsrnIn honor of the beginning of the month here are the most downloaded property articles on SSRN over the last 60 days.


1.  [268 downloads]  Planning in the Digital Age
     Gerry W. Beyer (Texas Tech)

2.  [203 downloads] Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights
     Amnon Lehavi (IDC – Israel)

3.  [187 downloads] Losing the Paper – Mortgage Assignments, Note Transfers and Consumer Protection
     Alan M. White (CUNY)

4.  [184 downloads] America's Mortgage Laws in Historical Perspective
     Andra C. Ghent (Arizona State – Finance)

5.  [173 downloads] Climate Change and Environmental Justice: Reflections on Litigation Over Oil Extraction and Rights Violations in Nigeria
     Hari M. Osofsky (Minnesota)

6.  [135 downloads] The Right Not to Use in Property and Patent Law
     Oskar Liivak (Cornell) & Eduardo M. Penalver (Cornell)

7.  [127 downloads] Property Rights and Modern Energy
     Troy A. Rule (Missouri)

8.  [87 downloads] Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
     Nancy A. McLaughlin (Utah) & Stephen J. Small (Utah)

9.  [85 downloads] The Complexities of Land Reparations
     Gregory S. Alexander (Cornell)

10.  [73 downloads] The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time
     J. Peter Byrne (Georgetown)

Steve Clowney

December 3, 2012 | Permalink | Comments (0) | TrackBack (0)