PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Friday, August 2, 2013

Case of the Week: Does "to A and B or the Survivor" Create a Joint Tenancy?

Joe Singer highlights a case out of West Virginia:

A deed granting an interest to two siblings (Roger & Dana Waid) “or the survivor” was interpreted as created a tenancy in common rather than a joint tenancy. Young v. Waid, 2012 WL 2947590, (W.Va. 2012). Following the death of Roger, Dana would have had a 100 % interest in the property if they held as joint tenants (because of her right of survivorship) but only a 50 % interest (with 50% held by Roger’s heir or devisees) if they held as tenants in common. Applying an interpretive presumption in favor of tenancies in common, the West Virginia Supreme Court noted that the deed did not use the words “joint tenancy” or “right of survivorship” and that it was possible the words “to the survivor” were mere surplusage. The court found the language not clear enough to constitute an intent to create a right of survivorship, effectively privileging giving each sibling (and his or her descendants) the economic benefit of the property rather than assuming the grantor wanted to consolidate interests in the survivor of the siblings. The case pitted one canon of interpretation (do not interpret conveyances to include language that has no purpose) against another (preferring tenancies in common over joint tenancies). The common approach in the US is to prefer the tenancy in common because it  treats co-owners more equally than the joint tenancy which consolidates interests but disinherits the descendants of one of the owners.

Steve Clowney

August 2, 2013 | Permalink | Comments (0) | TrackBack (0)

Dagan on the Global Land Rush

DaganHanoch Dagan (Tel Aviv) has posted Property Theory, Essential Resources, and the Global Land Rush on SSRN.  Here's the abstract:

Recent large scale transnational transfers of land threaten members of rural communities in the developing world who rely for food and shelter on access to land they lack formal title to. Contrary to some of the conventional wisdom, this Essay argues that liberal property theory provides important inroads for addressing this challenge. Properly interpreted, property requires an ongoing (albeit properly cautious) redefinition of existing property institutions as well as the design of new ones, in light of changing circumstances and in response to the liberal property values of personal independence, labor, personhood, aggregate welfare, community, and distributive justice. These property values imply that the new, transnational land market must accommodate a property institution for essential resources that secures the individual and collective rights of pre-existing users. Securing these rights does not require that we reject the logic of competitive markets. Quite the contrary. One promising path for realizing these rights is to strengthen competition through properly designed auctions that ensure the members of local communities choices between outright sale offers and equity investment in local cooperatives.

Steve Clowney

August 2, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 1, 2013

Georgia Makes Property Claim Over Its State Statutes

Greg Lambert highlights this move by the state of Georgia:

If you haven't read this latest act of attempting to control state statutes (and probably insure that that juicy little Lexis contract), take a look at the C&D Letter [PDF] dated July 25, 2013 that was written by Josh McKoon, Chairman of the Georgia Code Revision Commission and posted by Malamud on law.resources.org.

According to the letter, Malamud let the Georgia Assembly know back in May that he was going to post a copy of the Official Code of Georgia Annotated on his website, and sure enough, there it is "with no restrictions to its access."

Of course, it is the "Annotated" part that seems to have made the Commission ink this C&D. Most likely because that part is claimed by Lexis. If you have ever spend five minutes in a room with Fastcase's Ed Walters, you've undoubtedly heard his tales of how stingy Lexis is with the Georgia Code. It seems that the agents of the State of Georgia are very much in agreement with the idea that no one should have free access to this annotated material.

Steve Clowey

August 1, 2013 | Permalink | Comments (1) | TrackBack (0)

Recent SSRN Downloads

SsrnIn honor of the beginning of the month, here are the most downloaded property papers on SSRN over the last 60 days:

 

1.  [215 downloads]  The Buck Stops Here: Toxic Titles and Title Insurance
     Molly Rose Goodman (Suffolk)

2.  [163 downloads]  Show Me the Note!
     Bradley T. Borden (Brooklyn), David J. Reiss (Brooklyn), William KeAupuni Akina (Brooklyn)

3.  [117 downloads]  Charitable Contributions of Property: A Broken System Reimagined
     Roger Colinvaux (Columbus)

4.  [103 downloads]  First Commentary on the New Act December 2012 on Inherintancy Indignity, New Rules for Substitution, Matrimonial Advantages and Gifts
     Alain Laurent Verbeke (Leuven)

5.  [95 downloads]  Valuing Fractional Interests in Art for Estate Tax Purposes
     Wendy C. Gerzog (Baltimore)

6.  [92 downloads] An Economic Analysis of Territorial Sovereignty in International Law
     Abraham Bell (San Diego)

7.  [92 downloads] Fiscal Zoning and Economists' Views of the Property Tax
     William A. Fischel (Dartmouth – Econ)

8.  [75 downloads]  Banning Lawns
     Sarah Schindler (Maine)

9.  [67 downloads] The Public Trust Doctrine in Environmental and Natural Resources Law: Chapter 1 (Introduction)
     Michael C. Blumm (Lewis & Clark) & Mary C. Wood (Orgeon)

10.  [59 downloads] Agenda 21 Is Evil: The Agenda 21 Disinformation Campaign in the United States: An Ethical Critique of an Attack on Sustainability
       Donald A. Brown (Widener)

Steve Clowney

August 1, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 31, 2013

Map of the Day: Economic Mobility

This map shows the chance that a child raised in the bottom fifth rose to the top fith of the economic ladder:

Screen Shot 2013-07-22 at 9.47.45 AM
Here's some analysis from Slate:

Something a number of people have noticed is that the swath of bad opportunities for poor people seems to largely track the geography of where the African-American population is disproportionately located. That naturally lends itself to the hypothesis that it isn't so much that poor people have bad opportunities in these places as that black people lack upward mobility and happen to be concentrated in the southeast.

But the researchers actually looked at this, and that's not the case. Upward mobility for low-income people of all races is negatively correlated with the size of the local black population.

That could be just a coincidence. But I think it probably isn't. If you look at the more clear-cut case of political opportunity, you'll see that measures such as poll taxes that were meant to disenfranchise black people tended to have the secondary consequence of also disenfranchising poor white people. You could imagine a more generalized version of that. If your poor population contains a very large number of African-Americans, then perhaps the only viable means of keeping the black man down are going to involve denying opportunities for upward mobility to poor people of all races. Strong public schools, economically mixed neighborhoods, dense cities, and other pathways of economic mobility would undermine the racial hierarchy, so they meet with unusual levels of resistance.

Steve Clowney

July 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Claeys on the Use and Abuse of Overflight Column Doctrine

ClaeysEric Claeys (George Mason) has posted On the Use and Abuse of Overflight Column Doctrine (Brigham-Kanner Property Rights Conference Journal) on SSRN.  Here's the abstract:

Many scholars writing on property or intellectual property policy assume that, when commercial aviation became feasible, the ad coelum maxim applied so literally that any airplane automatically trespassed on the air columns above lots of land beneath its flight path. The ad coelum maxim alienated property doctrine from sensible policies, these assumptions continue, and this disjunction was not fixed until courts reinvigorated property doctrine with new policies in the 1930s and 1940s.

This Article has two goals. The first is to show that this portrait of overflight litigation is misleading. In the watershed overflight cases, jurists took for granted that legal “property” has a built-in normative commitment to one fundamental policy goal — that property rights be structured to facilitate all stakeholders being allowed to use those resources concurrently and beneficially, each for his own individual goals. So in overflight cases, jurists revised the scope of the ad coelum maxim to make sure that the maxim cohered with sound policies already fundamental to property law. The maxim confirmed landowners’ control over the low-altitude air space reasonably necessary to their beneficial uses of their lots. But the maxim was found not to apply to high-altitude airspace, because it seemed likely to impede all citizens’ concurrent interests in using airspace as a commons for air travel and transport.

The second goal is to shed light on why contemporary scholarship portrays the ad coelum maxim and the transition in aerial trespass law so inaccurately. The conventional portrait of the overflight transition provides a tempting narrative helping to make traditional rights of exclusive control seem overbroad. By process of elimination, the “ad coelum fable” helps make seem more attractive alternate property strategies, especially commons approaches and “liability rule” forced transfers of use rights. Although such approaches may be desirable in some situations, they should be judged on their normative merits — not by setting up and then ridiculing straw-man portraits of alternatives. This Article illustrates with contemporary scholarship on eminent domain and urban redevelopment, and on the Google Books dispute.

Steve

July 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

How Bad is Homeownership for America

Yglesias contineus to bang the drum against American housing policy:

A house is two things: a parcel of land and a complicated manufactured good that sits atop it. In other words, it's a commodity and a consumer durable good—similar to a car (consumer durable) that needs gasoline (commodity) to run. But even though both automobiles and tanks full of gasoline are widely owned in the United States, politicians don't run around trying to promote expensive cars and gasoline because we rightly recognize that this would reduce living standards, not raise them. But by encouraging mainstream middle-class families to make large leveraged investments in houses, you create politics around promoting housing scarcity. The problem here is that although any given person can certainly profit from the house he or she owns (or, more plausibly, the land it sits on) appreciating in value more rapidly than average, it's extremely difficult to see how a nation as a whole is going to become more prosperous by houses becoming more expensive.

Steve Clowney

July 30, 2013 | Permalink | Comments (0) | TrackBack (0)

McMansions Around the World

Egypt
Al Safwa, Cairo, Egypt (2009)

After six years of traveling around the world, Swedish photogrpaher Martin Adolfsson has finished Suburbia Gone Wilda new  book that documents model homes in the wealthy enclaves of India, Russia, and Egypt. Accroding the the Atlantic Cities Blog, "His discoveries reveal a world that continues to homogenize around emerging clusters of wealth aspiring to a particularly American brand of suburban life."

Steve Clowney

July 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Pidot on Fees, Expenditures, and the Takings Clause

PidotJustin Pidot (Denver) has posted Fees, Expenditures, and the Takings Clause on SSRN.  Here's the abstract:

The Supreme Court's recent decision in Koontz v. St. Johns River Water Management District extended heightened constitutional scrutiny to monetary exactions. But the Court did not define that term, and, arguably, it could encompass two distinct forms of conditions placed on government issued-permits: First, those that require a permit applicant to pay money to the government (which this essay refers to as a fee), and second those that require a permit applicant to engage in activities that cost money, but do not transfer money to the government (which this essay refers to as an expenditure). Based on the theoretical underpinnings of takings doctrine, and the language of the Koontz decision itself, this essay argues that heightened scrutiny should extend only to fees, and not to expenditures.

Steve Clowney

July 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 29, 2013

The Return of Home Flipping

The LA Times details the return of home flipping to pre-recession levels:

After the crash, experts — in hindsight — pointed to get-rich-quick home flipping as a missed warning sign before the housing bubble burst. But whether the return of flipping constitutes cause for alarm remains a murkier question.

Many housing experts and economists say it may simply signal a healthy recovery — a quick bounce back from prices that had dropped sharply. Others see it as a sign that fast-rising markets may again be getting overheated. In Southern California, the median price has seen year-over-year increases of more than 20% in every month so far this year, according to DataQuick, hitting a record 28% in June.

Steve Clowney

July 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Curtis on State Foreclosure Laws and Mortgage Origination in the Subprime Market

CurtisQuinn Curtis (Virginia) has posted State Foreclosure Laws and Mortgage Origination in the Subprime Market (J. of Real Estate Fin. & Econ.) on SSRN.  Here's the abstract:

Foreclosure procedures in some states are considerably swifter and less costly for lenders than in others. In light of the foreclosure crisis, an empirical understanding of the effect of foreclosure procedures on the mortgage market is critical. This study finds that lender-favorable foreclosure procedures are associated with more lending activity in the subprime market. The study uses hand-coded state foreclosure law variables to construct a numerical index measuring the favorability of state foreclosure laws to lenders. Mortgage origination data from state-border areas shows that lender-friendly foreclosure is associated with an increase in subprime originations, but has less effect on the prime market.

Steve Clowney

July 29, 2013 | Permalink | Comments (0) | TrackBack (0)