PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Friday, June 7, 2013

Can Real-Estate Crowdfunding Overcome NIMBY-ism?

Matt Yglesias looks at the promise and the legal hurdles of selling small shares in urban real-estate projects to the masses:

The real promise of Fundrise is that it gives pro-growth members of the community a way to become literally and figuratively invested in the success of a project. A building owned by hundreds of local people, rather than owned as part of a pooled investment vehicle marketed to pension funds, is one that’s much more likely to get a sympathetic hearing from local authorities. It’s also one that’s much more likely to inspire people to show up to meetings and hearings and make the case for development and expansion. As George Mason University Law School’s David Schleicher has observed, despite the stereotype of politically powerful real-estate developers, in practice most cities’ legal framework “creates a peculiar procedure that privileges the intense preferences of local residents opposed to new building.” The best solution to this would be to change the legal framework and reduce the peculiar privileging. But within the existing political order, broadening the scope of potential stakeholders is promising solution. Perhaps if people owned little slices of their neighborhood, urban politics could take a broader view of development and unleash more of the economic potential sitting beneath our cities.

Steve Clowney

June 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Brinig & Garnett on Accessory Dwelling Units on Single-Family Lots

Margaret Brinig (Notre Dame) & Nicole Garnett (Notre Dame) have posted A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism (The Urban Lawyer) on SSRN.  Here's the abstract:

Over the past decade, a number of state and local governments have amended land use regulations to permit the accessory dwelling units (“ADUs”) on single-family lots. Measured by raw numbers of reforms, the campaign to secure legal reforms permitting ADUs appears to be a tremendous success. The question remains, however, whether these reforms overcome the well-documented land-use parochialism that has, for decades, represented a primary obstacle to increasing the supply of affordable housing. In order to understand more about their actual effects, this Article examines ADU reforms in a context which ought to predict a minimal level of local parochialism. In 2002, California enacted state-wide legislation mandating that local governments either amend their zoning laws to permit ADUs in single-family zones or accept the imposition of a state-dictated regulatory regime. We carefully examined the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. Our analysis suggests that the seeming success story masks hidden local regulatory barriers. Local governments have responded to local political pressures by delaying the enactment of ADU legislation (and, in a few cases, simply refusing to do so despite the state mandate), imposing burdensome procedural requirements that are contrary to the spirit, if not the letter, of the state-law requirement that ADUs be permitted “as of right,” requiring multiple off-street parking spaces, and imposing substantive and procedural design requirements. Taken together, these details likely dramatically suppress the value of ADUs as a means of increasing affordable housing.

Steve Clowney

June 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 6, 2013

Map of the Day: How Americans Pronounce Stuff

Business Insider has put together 22 Maps That Show How Americans Speak English Totally Differently From Each Other:

Tiny-lobsters-are-tearing-this-country-apart

Steve Clowney

June 6, 2013 | Permalink | Comments (0) | TrackBack (0)

Godsil on Gentrification

GodsilRachel Godsil (Seton Hall) has posted The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing (Brooklyn) on SSRN.  Here's the abstract:

Gentrification connotes a process where often white “outsiders” move into areas in which once attractive properties have deteriorated due to disinvestment. Gentrification creates seemingly positive outcomes, including increases in property values, equity, and a city’s tax base, as well as greater residential racial and economic integration; yet it is typically accompanied by significant opposition. In-place residents fear that they will either be displaced or even if they remain the newcomers will change the culture and practices of the neighborhood. Gentrification then is understood to cause a loss of community and autonomy – losses that have been well recognized in the eminent domain literature.

This article focuses on gentrifying neighborhoods that were abandoned during the government sponsored suburban migration of the 1950s through the 1980s. Racially discriminatory practices of government and private actors often denied Black and Latino families the option either to join the migration to the suburbs or to maintain their homes in city neighborhoods. This article argues that in-place residents of now gentrifying neighborhoods should have access to rental vouchers or low-interest loans to restore the autonomy they were previously denied, providing them with viable, self-determining options to remain or exit the neighborhood. Such a remedy – which is consistent with the Fair Housing Act’s obligation to HUD and its grantees to “affirmatively further fair housing” – has the potential to alter the political terrain of gentrification.

Steve Clowney

June 6, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 5, 2013

New Urbanism's Biggest Regret

Peter Katz has put together a five-part series about New Urbanisms triumphs and failures.  In the final piece of his review, Katz examines New Urbanism's failure to help improve the processes of municipal governments:

Although it’s easy to criticize local government staffers for the sprawling patterns that continue to predominate in the suburbs, as I did in the prior installment, and have in earlier writings—there’s plenty of blame to go around. If one is looking for a villain, I might point also to the leadership of the New Urbanism movement for its failure (with some notable recent exceptions) to engage local government on its own terms.

In past conversations with the founders, I have heard nearly all of them, at one time or another, admit to a lack of patience with government processes and regulations, either in terms of fully understanding them, or being willing to work within their dictates.

Steve Clowney

June 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Jay on Perpetual Conservation Easements

Jessica Jay (Vermont) has posted Understanding When Perpetual is Not Forever: An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing (Harvard Envtl Law Rev) on SSRN.  Here's the abstract:

Rarely in the legal discourse is an author afforded the opportunity to revisit and update a recently published law review article and correct misunderstandings of a response thereto. In the first instance of the Harvard Environmental Law Journal publishing two law review articles by the same author in back to back volumes, Jessica Jay in 2012 authors When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, which explores the area of law surrounding the amendment and termination of perpetual conservation easements, with specific focus on the existing legal framework, legal regimes, emerging statutory and common law, and states’ approaches to self-guidance. Now, Jay authors Understanding When Perpetual Is Not Forever : An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing [The Challenge], which identifies next steps and options for perpetual easement modification and termination guidance, including revisions of the Treasury Regulations § 1.170A-14. The Challenge posits that providing clear, consistent guidance through existing or new legal frameworks ensures that perpetual conservation easements and the purposes they protect will endure over time. This Article informs about developments since the publication of The Challenge and corrects misunderstandings asserted in Ann Taylor Schwing’s article in the same issue of the Harvard Environmental Law Review.

Steve Clowney

June 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 4, 2013

Will Airbnb Force Municipal Rethink of Mixed-Use Zones?

Andrew Sullivan reports that "New York fined an Airbnb host $2,400 for violating a law against illegal hotels.” Accorsing to Sullivan, Emily Badger suspects that more cases like this will trigger a reassessment of city codes:

It’s reasonable for cities to create some standards for how residents might operate what the [Sustainable Economies Law Center] calls “host homes” or “no-host homes.” Perhaps regulation could require the host to register the property for a small fee, while limiting the number of nights in a year that guests can stay there (this could be a concession to neighbors who don’t want their block or building to become a revolving door for tourists). The SELC also floats a cap on the income that a host can make in a year, tied for example to the cost of actual rent or the market value of a property (for example: your Airbnb income can’t exceed 75 percent of your actual yearly rent and utilities).

This last idea would certainly codify the notion that the “sharing economy” is fundamentally a different kind of economy, one where the ultimate goal for individual participants isn’t to make as much profit as possible.

Marcus Wohlsen insists government will have to make way for the share economy sooner rather than later:

New York is a city built on bureaucracy, and bureaucracies are inherently resistant to change, especially when a new technology comes along to undermine the assumptions on which those bureaucracies were built. And in a way that’s by design. The mechanization of the economy and the mechanization of government have occurred in parallel, often in the form of agencies meant to check industries’ more flagrant violations of the social contract. In a sense, those bureaucracies’ express mission is to hinder progress.

Still, renting out your room when you’re not home or your car when you’re not driving it hardly feels flagrant. If people and the politicians they elect feel the same way, these bureaucratic roadblocks to the sharing economy’s rise will also turn out to be very temporary. Whether or not Airbnb, RelayRides or Uber turn out to be the companies that define the future of sharing, the idea of using technology to leverage any resource’s excess idle capacity seems too sensible—and popular—to fail.

Walter Mead nods:

In the case of Airbnb, New York City’s zoning and administrative codes were so numerous and confusing that the client hit with the fine had no idea that he was breaking the law simply by renting out his room. A legal system in which the average citizen can’t make sense of when or how he or she is doing something illegal is not only unfair but a serious detriment to quality of life. America is not going to create the service jobs it needs to stay vital in the post-industrial age by making it hard for small-time entrepreneurs to succeed.

Steve Clowney

June 4, 2013 | Permalink | Comments (0) | TrackBack (0)

Harris Reviews Stuart Banner's American Property

Harris-2011Douglas Harris (British Columbia) has posted Book Review of American Property: A History of How, Why, and What We Own, by Stuart Banner (Osgoode Hall Law Journal) on SSRN.  Here's the abstract:

Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to things. The institution of property law — the rules that define this subset of human relationships — arises in the context of scarcity. When things are scarce and accordingly hold exchange value, humans construct ideas of ownership. We have been doing so for millennia, or at least long enough that the subject of property law has acquired a reputation as antiquarian. Certainly in the common law tradition, many property law courses appear lost in the mist of English legal history. This need not be so. Property law deals with the allocation of scarce resources and therefore is also about the allocation of power. Understood this way, property law can be a lens through which to understand many of the most pressing social issues of the day. Similarly, the history of property law need not be dull. At least ten centuries of social change, economic transformation, technological innovation, and human drama can be seen in the customs and conventions, judicial decisions, and statutes that comprise the law of property in common law jurisdictions. In American Property: A History of How, Why and What We Own, Stuart Banner, the prolific legal historian and property law scholar, sets out to describe contestation and change in ideas about property over several centuries in the United States. The result is a beautifully and accessibly written book, stunning in scope, elegant in structure, and remarkably revealing in its detail about the debates over and the uses of property law doctrine and of the broader ideas that support the divergent interests and claims.

Steve Clowney

June 4, 2013 | Permalink | Comments (0) | TrackBack (0)

Saxer & Ross on A Prospective Look at Property Rights

Shelley Saxer (Pepperdine) & Carol Rose (Arizona) have posted A Prospective Look at Property Rights (George Mason) on SSRN.  Here's the abstract:

Professor Saxer, along with Professor Carol M. Rose, discuss a collection of articles that was first presented at the 2013 Association of American Law Schools Joint Program of the Property Section and Natural Resources and Energy Law Section. The collection represents several views about how the relationship between the environment and property rights may develop, and how some of the biggest issues we will face may alter property rights, as we currently understand them. The impact of technology on environmental concerns and the challenge of climate change are just two of the issues presented in the papers.

The collection includes the following articles: (1) Professor Maxine Burkett’s, "Duty and Breach in an Era of Uncertainty: Local Government Liability for Failure to Adapt to Climate Change", (2) Professor Steven J. Eagle’s, "A Prospective Look at Property Rights and Environmental Regulation", (3) Professor Timothy M. Mulvaney’s, "Foreground Principles" and, (4) Professor Troy A. Rule’s, "Property Rights and Modern Energy".

Steve Clowney

June 4, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 3, 2013

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.  [384 downloads] Robo-Litigation
Dustin A. Zacks (King, Nieves & Zacks PLLC)

2.  [138 downloads] Psychologies of Property (and Why Property is Not a Hawk-Dove Game)
Carol M. Rose (Arizona)

3.  [111 downloads] Rescuing the Bundle of Rights Metaphor in Property Law
Jane B. Baron (Temple)

4.  [108 downloads] The Dark Side of Town: The Social Capital Revolution in Residential Property
Stephanie M. Stern (Chicago-Kent)

5.  [104 downloads] Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants
Carol M. Rose (Arizona)

6.  [84 downloads] Квалификация и Последствия Сделок С Будущей Недвижимой Вещью (Typization and Consequences of Real Property Investment Transactions)
Roman Bevzenko (National Research University)

7.  [80 downloads] The Public Trust Doctrine in Thirty-Seven States
Michael C. Blumm (Lewis & Clark), Elizabeth B. Dawson (Lewis & Clark), et al.

8.  [76 downloads] Barriers to Foreclosure Prevention During the Financial Crisis
Patricia A. McCoy (UConn) 

9.  [61 downloads] Avoiding Insult to Injury: Extending and Expanding Cancellation of Indebtedness Income Tax Exemptions for Homeowners
Dustin A. Zacks (King, Nieves & Zacks PLLC)

10.  [58 downloads] Certainty of Title: Perspectives after the Mortgage Foreclosure Crisis on the Essential Role of Effective Recording Systems
Donald J. Kochan (Chapman)

Steve Clowney

June 3, 2013 | Permalink | Comments (0) | TrackBack (0)