Saturday, December 15, 2012
Two weeks ago a conference was held in Prague on the restitution of property expropriated from Jews in Europe during the World War II era. The conference came three years after another remarkable conference in Prague produced a document known as the Terezin Declaration, by which 47 countries agreed to facilitate the restitution of, or compensation for, property expropriated from Jews (the Declaration was named after the Terezin concentration camp outside of Prague, where tens of thousands of Jews, and in particular Jewish children, were held before being shipped to death camps further east).
Despite that commitment, the recent conference found that progress has been uneven at best. Restitution is particularly difficult with regard to two types of property -- immovable (essentially real property in the common law tradition) and communal. The restitution of immovable property is notoriously difficult. Often, that property is now in the possession of people who committed no wrongs themselves, other than continuing to benefit from the wrongs committed by others (we in North America should have no trouble identifying with that difficulty). Communal property was often held by rural Jewish communities, and restitution claims for it inherently involve questions of standing. And, with each day that passes, restitution and compensation become less likely, as current occupiers feel less connected with the past wrongs.
I've written a lot about the race against time for the viability of restitution claims. Restitution claims are undermined by a paradox. It takes time for a society to willingly acknowledge it responsibility for a wrongful dispossession of property rights. But during that time, the moral strength of claims fade and the practicality of restitution becomes infinitely more complex. In other words, by the time restitution claims are socially and politically viable, they are often no longer morally and practically viable. That may help explain the uneven progress made despite the good intentions of the Terezin Declaration.
Mark A. Edwards
Friday, December 14, 2012
The LA Times asks what will become of America's favorite tax deduction:
President Obama's deficit commission proposed lowering the limit on
mortgage principal eligible for a deduction to $500,000 from the current
$1 million, removing any break for interest on a second home and
turning the deduction into a tax credit capped at 12% of interest paid.
A tax credit would allow homeowners who don't itemize deductions to subtract the interest from the taxes they owe. But while more taxpayers could take advantage of the benefit, a cap would mean those with large mortgages on expensive homes couldn't get a credit for all the interest they pay. Other proposals have called for similar changes.
Supporters of the tax break worry that proposed changes would not only push down prices but also spook potential buyers.
Thursday, December 13, 2012
This review essay of property Outlaws: How squatters, Pirates, and
Protesters Improve the law of Ownership by Eduardo Moisés Peñalver and
Sonia K. Katyal discusses and
critiques the major themes of the book.
Wednesday, December 12, 2012
Jessica Owley (Buffalo) has posted The Future of the Past: Historic Preservation Easements (Zoning Law & Practice Report) on SSRN. Here's the abstract:
brief article summarizes recent case law related to historic
preservation easements. As historic preservation easements and other
conservation easements age, the number of legal disputes involving them
has grown. Challenges to historic conservation easements generally arise
in the tax court because many of them are donations. The IRS is taking a
close looks at conservation easements generally, appearing to focus
particularly on façade easements.
Most states (and the IRS) require historic preservation easements to be perpetual. Courts are beginning to scrutinize what perpetuity means and are looking closely at easement language regarding mortgage subordination, condemnation, and extinguishment. This move by the IRS should indicate to landowners, land trusts, and funders that historic preservation easements should be carefully written to comply with all state and federal regulations with an eye to ensuring their long-term viability. Additionally, the IRS and courts have been particularly concerned with the accuracy of appraisals, which reach millions of dollars. Appraisals need to delineate their method and basis for calculation. The IRS’ scrutiny, however, has been tougher than the courts’. While the Tax Court has often sided with the IRS (on issues of perpetuity, particularly), the circuit courts seem to err in favor of upholding conservation easements and allowing deductions.
Tuesday, December 11, 2012
Call-in number: 866-646-6488Passcode: 5577419753
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent real property cases of interest to real estate practitioners and scholars. This month’s program is entitled "The Future of Impact Fees and Growth Management." The panel will feature Professor Julian Juergensmeyer of the Georgia State University School of Law and Professor Alan Weinstein of the Cleveland-Marshall Law School.
Prof. Weinstein, who is Associate Professor & Director of the Law & Public Policy Program at Cleveland-Marshall, will discuss recent cases from Iowa, Mississippi, Florida, and Ohio that have re-examined the legal status of development exactions and the ability of local governments to use impact fees to finance infrastructure improvements. These cases include Drees Co. v. Hamilton Township (Ohio Supreme Court) and Koontz v. St. John's River Water Mgmt. Distr. (Florida Supreme Court, on which the U.S. Supreme Court has recently granted certiorari). Other relevant decisions include Iowa Home Builders Ass’n of Greater Des Moines v. City of W. Des Moines, 644 N.W.2d 339 (Iowa 2002); Mayor of Ocean Springs v. Homebuilders Ass’n of Miss., Inc., 932 So. 2d 44 (Miss. 2006); McCarthy v. City of Leawood, 894 P.2d 836 (Kan. 1995); Hollywood, Inc. v. Broward County, 431 So.2d 606 (Fla. Dist. Ct. App. 1983); and Call v. City of West Jordan, 606 P.2d 217 (Utah 1979).
Prof. Juergensmeyer, who holds the Ben F. Johnson, Jr. Chair at Georgia State, will discuss the relationship between the financial crisis and recession and impact fees and assessments. Changing demographic and economic conditions are reshaping development patterns. He will discuss these trends, as well as the need for local governments to create alternatives to facilitate the financing of future development.
This will be a really interesting call, and you'll either learn a lot about impact fees, or gain new knowledge from two experts!
Hurricane Sandy put few agencies in the region to a more daunting test than it did the New York City Housing Authority — the nation’s biggest public landlord — as 402 of its buildings housing 77,000 residents lost electricity and elevators, with most of them also losing heat and hot water. These lifelines were cut in some of the city’s most isolated spots, like Coney Island, Red Hook and the Rockaways.
An examination by The New York Times has found that while the agency moved aggressively before the storm to encourage residents to leave, particularly those who were disabled and the needy, both it and the city government at large were woefully unprepared to help its residents deal with Hurricane Sandy’s lingering aftermath.
Dan Tarlock (Chicago-Kent) has posted Takings, Water Rights, and Climate Change (Vermont Law Review) on SSRN. Here's the abstract:
Article examines the possible consequences of climate change on the
Supreme Court’s takings jurisprudence as it applies to the
non-recognition and regulation of water rights and land rights at the
Part I of the Article examines the potential impact of climate change on the use and value of land and water rights and the possible changes to the attributes of property ownership that climate change may produce. Part II poses six pro-type cases where legislative, administrative, or judicial action may produce takings challenges and examines existing precedents and possible resolutions of the cases. The Article concludes by sketching the principles of a climate change takings jurisprudence for water rights and for land at the water-land interface.
Monday, December 10, 2012
The N.Y. Times investigates if a two-week house guest should count as an illegal sublet:
Residential tenants are permitted to have guests and roommates under New York law, but leases typically prohibit “subleasing” without a landlord’s consent, said Jarred I. Kassenoff, a Manhattan real estate lawyer. The question becomes whether the duration of the occupancy by the “house-sitter” constitutes an “illegal sublet” rather than the stay of a guest or roommate.
“Given that the tenant only will be away for ‘up to’ two weeks,” Mr. Kassenoff said, “it is doubtful that the short-term nature of the arrangement would be sufficient to trigger an eviction.” But as the landlord is permitted to establish reasonable security protocols for the safety of the residents, there may have been a good-faith basis to the owner’s refusal to allow entry to the guest, who had not been preapproved. So the writer should try to get preapproval the next time he will have a house-sitter.
Steven Eagle (George Mason) has posted A Prospective Look at Property Rights and Environmental Regulation (George Mason Law Review) on SSRN. Here's the abstract:
Article considers the future interaction of environmental regulation and
private property rights, with an emphasis on climate change issues. It
concludes that environmental issues not satisfactorily resolved at the
federal level will lead to more state and local regulation that impinges
on traditional understandings of property. Given the uncertainty
associated with detrimental environmental outcomes, and the trend
towards more proactive sub-national land use controls, more
micromanagement of property will result. Since many environmental
issues, notably climate change, are trans-national or worldwide in
effect, suboptimal results might be expected. Furthermore, increased
sub-national efforts to regulate the environment will clash with private
property rights. Inevitably, some ostensible environmental regulations
will seek to further other public and private agendas.
Part I examines the difficulty in defining “environment” and “property rights,” especially in the context of future generations. Part II focuses on the importance of private property in future environmental regulation, and examines the lack of standards protecting individuals from regulatory takings, and negative impacts for consumers. Part III considers the problematic implementation of “smart growth” regulations, the use of development exactions, and the potential for rent seeking and abuse in the redevelopment context.