PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, February 13, 2015

A Colossus of Africa


Slate takes a look at the history and meaning of the largest apartment building in Africa:

The building, along with the neighborhood of high-rises around it, had long functioned as something of a vertical waiting room for admission into urban South Africa. Adjoining the city’s largest train and bus station, it was the landing point from which thousands of immigrants, refugees, and rural migrants took their first tentative steps into Africa’s wealthiest city, and their presence made the area dizzyingly cosmopolitan. Congolese nightclubs jostled up against bootleg Nollywood film stores and Ethiopian restaurants; the knots of gossiping women gathered on street corners chattered in Zulu, Yoruba, French, and Somali.

And for a journalist like me, Ponte seemed almost too good to be true: a building that doubled as a neat metaphor for contemporary South Africa—a carefully wrought fortress of white privilege that had fallen into disrepair and violence before emerging, haltingly, into a more inclusive but far more uncertain version of itself.


February 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Mank on Standing to View Other People's Land

Mank_0Bradford Mank (Cincinnati) has posted Standing to View Other People's Land: The D.C. Circuit's Divided Decision in Sierra Club v. Jewell (Columbia Journal of Environmental Law) on SSRN.  Here's the abstract:

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it would decide this issue. Environmentalists and nature observers would generally favor broad standing rights, but property rights advocates would argue that only those with a legal right to enter a property should have the right to sue to protect it. If it addresses whether plaintiffs must have a legal interest in any property they seek standing to protect, the Supreme Court might be forced to resolve the contradictions in its standing doctrine.

February 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Campbell on Nonjudicial Foreclosure

CampbellJohn Campbell (Denver) has posted Getting Wrongful Foreclosure Right: Two Stage, Progressive Filtering in Nonjudicial Foreclosure States on SSRN.  Here's the abstract:

In some states, foreclosures occur with no judicial involvement. Typically, after this "nonjudicial foreclosure," the new buyer of the home will file an unlawful detainer in court to remove the former homeowner. But, what if, in that action, the homeowner (now defendant) produces evidence the foreclosure was illegal - even void? Can the homeowner avoid eviction? The answer to this question depends on what state a homeowner is in. In 8 states, even if a homeowner proves that the foreclosure was void and the new buyer could not have taken title, the homeowner will still be evicted from the home. This is because in those states, the court is prohibited from considering any evidence relating to who has legal title to the property. As a result, homeowners can be removed from a home before any court determines - despite having the chance to do so - who has a superior claim to possession.

This article highlights this split between states that consider evidence in unlawful detainers (challenge states) and those who do not (no-challenge states). I argue that no-challenge states unnecessarily cause, augment, and concretize the harm of wrongful foreclosures. I assert that these harms run to homeowners, the legitimacy of courts, and society as a whole. Ultimately, I assert that challenge states have found a more prudent path that obtains the expediency of nonjudicial foreclosure while still allowing for just results.

February 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

Why Everyone Hates Zoning

Los Angeles and Shreveport, La. are also bringing the power of the state down on the "little free library" movement:

In Los Angeles, Peter Cook, who acts under the name Peter Mackenzie, and his wife, writer Lili Flanders, were told by a city investigator that their curbside library was an obstruction. They were given a week to remove it, or else face fines from the city. This came after an anonymous note from "a neighbor who hates you and your kids" was left on their library, ordering them to "Take it down or the city will."

It's a similar situation to the one in Shreveport, where the city sent a cease and desist letter to the owners of a Little Free Library. Ricky and Teresa Edgerton were told they could file an appeal to let the library remain, but it would cost $500.

February 11, 2015 | Permalink | Comments (0) | TrackBack (0)

Schindler on Underground Dining

Sarah.sSarah Schindler (Maine) has posted Regulating the Underground: Secret Supper Clubs, Pop-Up Restaurants, and the Role of Law (Chicago Law Review -  Dialogue) on SSRN.  Here's the abstract:

Instagram pictures of elegantly plated dinners, long farm-style tables, and well-to-do people laughing in what looks like a loft apartment are followed by commenters asking, “Where is this?” This is the world of underground dining. Aspiring and established chefs invite strangers into their homes (or their friends’ stores after hours, or the empty warehouse at the edge of town, or the nearest farm) for a night of food and revelry in exchange for cash. Although decidedly anti-establishment, these secret suppers and pop-up restaurants are popular — there are websites to help people locate them, and many respected publications have penned stories about their rise. While some municipalities have been proactive in regulating these events, in other locales these dinners remain completely illegal, violating health, zoning, employment, and business-licensing regulations. At the most basic level, this Essay considers what society should make of these dinners. It asks how we should balance our societal commitments to entrepreneurial innovation, community-building, and eating good food against the rule of law.

February 11, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

The Ballerest of Accommodations

Lee Wachtstetter of Florida is living the dream:

Wachtstetter, an 86-year-old Florida widow, took her daughter's advice. She sold her five-bedroom Fort Lauderdale-area home on 10 acres and became a permanent luxury cruise ship resident after her husband died.

Mama Lee, as she's known aboard the 11-year-old Crystal Serenity, has been living on the 1,070-passenger vessel longer than most of its 655 crewmembers — nearly seven years.

"My husband introduced me to cruising," she recalled. "Mason was a banker and real estate appraiser and taught me to love cruising. During our 50-year marriage we did 89 cruises. I've done nearly a hundred more and 15 world cruises."

[...] She estimates living the good life on the Serenity this year will cost her $164,000. That'll cover costs of her single-occupancy seventh deck stateroom, regular and specialty restaurant meals with available lunch and dinner beverages, gratuities, nightly ballroom dancing with dance hosts and Broadway-caliber entertainment — as well as the captain's frequent cocktail parties, movies, lectures, plus other scheduled daily activities.

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Fraley on Surface Water Liability and the Property-Tort Divide

FraleyjJill Fraley (Washington and Lee) has posted The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability on SSRN.  Here's the abstract:

Nuisance provides the quintessential case study for illuminating theoretical issues surrounding the property-tort divide. This Article contributes a new case study based on surface water liability. Surface water liability perches even more awkwardly than nuisance on the divide with parties and judges stringing together doctrines and defenses from both fields. This case study can teach us about the property-tort boundary and the role of human flourishing in making those choices.

First, scholars traditionally identified three potential rules choices. Calabresi and Melamed then introduced a fourth. Surface water liability demonstrates a fifth rule choice.

Second, the surface water case study demonstrates that any property versus liability rules decision rests on some understanding of human flourishing. Implicitly or explicitly, this concept of human flourishing will include as a historical context an idealized vision of the human-land relationship. This Article imparts a narrowly tailored history of land drainage philosophy, pairing that history with an account of the evolution of surface water jurisprudence to demonstrate how the contemporaneous understanding of human flourishing encoded an idealized and contingent vision of the human-land relationship. This vision intuitively and organically integrates with land use decision making because it prioritizes and potentially even moralizes decisions about land development. More abstract components of human flourishing integrate less easily because they operate a level removed from the land context. As a result, there is an unseen hierarchy of values without the concept of human flourishing applied.

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Brady on The Failure of America's First City Plan

BradyMolly Brady (Yale Ph.D. Candidate) has posted The Failure of America's First City Plan (The Urban Lawyer) on SSRN.  Here's the abstract:

Many legal scholars and urban planners extol the virtues of the great American downtown grid: the uniform blocks and parallel streets that dominate cities from New York to San Francisco. Against this precision, the serpentine roads of many early American towns are viewed derisively, as an undesirable consequence of disorganized colonization. The history of America’s first planned city offers a natural experiment for examining the legal and economic consequences of both types of layouts — and evidence about when the conventional wisdom on grids is wrong.

This Article tells the story of the failure of America’s first city plan: the Nine Squares grid in New Haven, Connecticut. The Squares were problematic from their inception because they were too large and improvidently located. To adapt to land conditions and a commercial future far from what the town’s founders anticipated, eighteenth-century civic leaders resorted to a variety of processes to revise the layout, including a major subdivision that required use of the eminent domain power without payment of compensation in the 1780s. Town planning within the grid contrasted sharply with planning in areas surrounding the grid during the same time frame. In other parts of New Haven, incremental street decisions, legal mechanisms for resident involvement, and laws permitting in-kind compensation for new roadways allowed the town responsively to plan streets suited to changing land and settlement conditions.

This Article advances a new theory of street planning drawn from the New Haven case study, aiming to surface the virtues piecemeal planning can bring during some points in a city’s development. Streets can be thought of in market terms, and comprehensive grid plans may act as market distortions, preventing settlement forces from organically producing more effective street layouts. Particularly where information about land is dispersed among members of a small population, bottom-up street plans may be desirable because they reflect residents’ preferences and harness dispersed knowledge about land conditions and uses.

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Reminder: Registration for ALPS

The Association for Law, Property and Society is holding its 6th annual meeting at the University of Georgia School of Law, April 30 - May 2, 2015.  The deadline to register and to submit a paper topic is March 1. The plenary speaker will be Professor Laura Underkuffler from the Cornell Law School. All panels will take place on May 1 and 2. ALPS welcomes papers and panel proposals from all areas of property law scholarship, and from a diversity of perspectives. 
There will be a field trip for the afternoon of Thursday, April 30.  We will visit a brand new mixed-income public housing community, phase 1 of which just opened last month.  See
The tour will include a presentation that explains the background, design and planning issues, financing, regulatory framework, social dimensions, etc. The trip will probably start at about 3 pm, so make travel plans accordingly if you'd like to go.  There will be an opening reception for everyone after the field trip.
Get the details and register at the website:

February 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Bubb & Krishnamurthy on Mortgage Regulation in the Dodd-Frank Act

Ryan Bubb (NYU) & Prasad Krishnamurthy (Berkeley) have posted Regulating Against Bubbles: How Mortgage Regulation Can Keep Main Street and Wall Street Safe - From Themselves (Penn Law Review) on SSRN.  Here's the abstract:

As the Great Recession has painfully demonstrated, housing bubbles pose an enormous threat to economic stability. However, the principal mortgage market reforms in response to the latest boom and bust — the Dodd-Frank Act’s provisions on mortgage lending and securitization — are not designed to protect the economy from a housing bubble. Instead, these reforms tinker with the incentives of securitizers and lenders to prevent their exploitation of naïve investors and borrowers. In particular, they require securitizers to retain credit risk and lenders to assess borrowers’ ability to repay.

This approach misses the mark. The sine qua non of a bubble is market-wide overoptimism about future house prices. Irrational exuberance in a bubble leads parties across the entire system of housing finance to make risky bets based on rosy beliefs. It is not just investors who underprice credit risk and borrowers who overextend. Securitizers and lenders are also eager to take on dangerous levels of risk and leverage. The Dodd-Frank Act’s incentive-based reforms, by relying on rational behavior by supposedly sophisticated parties, will do little to protect the economy from a bubble. They might even increase systemic risk by concentrating mortgage risk in large financial institutions.

Because indirect incentive-based regulation is ineffective in a bubble, more direct mandates should be employed. We suggest a number of direct regulations to limit mortgage leverage, debt-to-income levels, and other contractual features that enable or induce borrowers to take out larger loans. We show how such limits can curb bubbles, lower defaults, and reduce household exposure to housing risk. While such limits would undoubtedly entail costs, such as restricting access to mortgage credit and homeownership, we suggest straightforward ways to mitigate many of these concerns. Our critique of incentive-based regulation also provides an important new perspective on current legislative efforts to reform the broader architecture of housing finance.

The Dodd-Frank Act’s mistargeted approach reflects in part the growing literature in behavioral law and economics that shows how sophisticated firms take advantage of biased consumers. Indeed, much of the debate over the appropriate response to the Great Recession has been about how to keep Main Street safe from Wall Street. We advance this literature by showing that the mistakes of firms have important implications for the design of regulation. Our analysis calls for a fundamental paradigm shift. The central policy challenge is to keep Main Street and Wall Street safe from themselves.

February 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

Conference Announcement: National Perservation Law

Screen Shot 2015-02-06 at 10.43.03 AM

Georgetown Law and the National Trust for Historic Preservation have teamed up to present a national conference on Historic Preservation Law at Georgetown Law on February 25.  The list of speakers features a number of prominent thinkers from both within and without the academy. This is certainly one of the largest and most exciting Historic Preservation conferences of the past decade.

Too see the conference agenda click here (pdf).

And here's a link to the registration.

February 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2015

A One Man City Beautiful Movement


The New York Post has a story on John Colgan, a security guard who has made it his personal mission to refurbish the city's ornate fire call boxes:

The state of the city’s quaint fire call boxes is simply alarming, says a Queens graffiti avenger who’s repainted dozens of the street fixtures.

John Colgan, a 39-year-old security guard, began his crusade to beautify the alarm boxes, and hundreds of hydrants, mailboxes and lampposts, three years ago, when he noticed one near his Woodside home covered in ugly graffiti.

Now, several nights a week, Colgan scours city streets for badly tagged fixtures. His car serves as a makeshift art studio, jammed with brushes, paints and a ladder.

He spends up to 18 hours per call box — first covering them in a base layer of glossy red, then adding gold detailing and finishing by outlining words in bright white.

February 5, 2015 | Permalink | Comments (0) | TrackBack (0)

Kochan on the Right to Exclude

Kochan_DDonald Kochan (Chapman) has posted Bubbles (Or, Some Reflections on the Laws of Human Relations) (Fordham Environmental Law Review) on SSRN.  Here's the abstract:

Very few of us want to live in the absolute isolation of a “bubble.” Most humans cherish the capacity to interact with their external environment even when we know that, at times, such exposure makes us susceptible to all sorts of negative effects ranging from mere annoyance to the contraction of deadly illnesses. Yet, because there are so many positive elements and benefits from that interaction and exposure, we often are willing to take the bitter with the sweet. We tolerate much external exposure to bad things in order to take advantage of the collisions with the good things that our outer environment offers. Yet, at the same time, to one extent or another, we all live with, and choose to cherish at times, some metaphorical, protective bubble around us, and it is the law that helps to define that bubble’s contours and provide its relative strength against those forces that might intrude upon it.

This Essay understands the right to exclude and the control of externalities as far more than a real property issue, the area of law where it is normally discussed. Most laws regarding human relations involve these same concepts. Individuals have the right to exercise dominion by doing what they wish with their property in the self and in things, while keeping people and things out (the right to exclude) or letting people and things in (the right to include, consent). The law struggles to formulate rules, including those related to the boundaries of property or the integrity of the body, to protect these bubbles and to define unacceptable externalities and remediable wrongs. This Essay seeks to identify the difficult choices we must make in deciding which intrusions we must accept as normal, inconvenient incidents of life and which we decide to deem externalities against which we should institute enforceable legal rules and protections.

February 5, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 4, 2015

Property Events at the University of Florida


Our good friends in Gainesville have exciting property-related news to announce. 

First, the annual Nelson Symposium will be held on Friday, February 6.  This year's theme is "Kelo's First Decade: The Eminent Domain (R)evolution." Speakers include Scott Bullock (Institute for Justice); Marc Edelman (Baruch College); Robert Hockett (Cornell); Alexandra Klass (Minnesota); Roy Payne (Assistant City Attorney for Orlando); Ilya Somin (George Mason); and Michael Wolf (Florida). The full details are here/ 

For those who can't make the quick trip to Gainesville (it's supposed to be in the 70s this weekend), the law school will be posting a video on-line a few days after the event.

Second, Bob Ellickson of Yale will deliver the annual Wolf Family Lecturer later this month (on the 26th). Here are the details.   This talk, entitled "Open Space in Urban Areas: Might There Be Too Much of a Good Thing?," will also be available on video a few days after the event.

Kudos to Florida for putting together these exciting events.

February 4, 2015 | Permalink | Comments (0) | TrackBack (0)

Levitin & Wachter on Second-Liens and the Leverage Option

Adam Levitin (Georgetown) & Susan Wachter (Wharton) have posted Second-Liens and the Leverage Option on SSRN.  Here's the abstract:

The finance literature has long recognized the existence of embedded put options within mortgage contracts, such as a prepayment option and a walk-away default option. This Article identifies a previously unrecognized option embedded in residential mortgages: a mortgagor’s unilateral option to increase total leverage on the collateral property through junior liens irrespective of existing mortgagees’ wishes. We term this the “leverage option.”

We show how the leverage option was created as an unintended consequence of a federal law enacted to deal with seller financing arrangements that prevailed during the inflationary economy of the 1970s. The leverage option was of little importance until the housing bubble in the 2000s, as homeowners massively increased their leverage using second-lien mortgages.

We demonstrate the problems that the leverage option causes for lenders, for homeowners (who pay for it, regardless of whether they want it), for regulators, and for the economy at large. We propose a discrete legal change that will convert the leverage option from being a mandatory embedded option to a bargained-for, unembedded option that will enable efficient pricing and force the information about total mortgage market leverage that is necessary for both effective market oversight.

February 4, 2015 | Permalink | Comments (0) | TrackBack (0)

Keiter & Ruple on the Transfer of Public Lands Movement

Robert Keiter (Utah) & John Ruple (Utah) have posted The Transfer of Public Lands Movement: Taking the 'Public' Out of Public Lands on SSRN.  Here's the abstract:

This white paper is a follow-up to our 2014 legal critique of Utah's Transfer of Public Lands Act (TPLA), which demands title to 31.2 million acres of federal public lands in Utah. In our earlier work we concluded that Utah previously disclaimed all legal rights to title to additional lands, and that "[t]he federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership." Despite its weak legal case, Utah remains dedicated to a public land takeover, and other Western states are poised to follow. This white paper therefore addresses how a public lands takeover would impact land management and access. While we focus on the TPLA, the lessons learned have broader applicability, first because the TPLA serves as the model for other state's Transfer efforts, and second because the TPLA will likely be the first such effort to face a legal challenge.

February 4, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2015

Housing Problems in Rural America


Gillian White looks at the problem of affordability outside the country's metro regions:

It can be hard to understand how finding affordable housing could be an issue in areas where housing is substantially cheaper than it would be in the nearest city or suburb. But the fact of the matter is, despite lower costs of living, income for many in rural areas is also significantly lower thanks to limited economic opportunities and struggling industries, like coal.

“When we are looking at areas that are most challenged economically we're also finding some of the most challenging housing conditions,” says David Dangler, the director of Rural Initiatives at NeighborWorks America, an organization that advocates for affordable housing and acts as a network for nonprofit housing groups. Poverty is high in rural areas, with about 17.2 percent of rural residents living below the poverty line in 2012 versus 14.9 percent nationwide, according to 2012 data from the HAC. “Much of the affordable-housing stock in rural housing areas is old and in need of repair. Many of the people who live there don't have the resources that they need in order to keep the houses in good repair,” says Sheila Crowley, president of the National Low-Income Housing Coalition.

February 3, 2015 | Permalink | Comments (0) | TrackBack (0)

Gervais & Holmes on Publicity Rights

Daniel Gervais (Vanderbilt) & Martin Holmes (Independent) have posted Fame, Property, and Identity: The Scope and Purpose of the Right Of Publicity (Fordham Intellectual Property, Media & Entertainment Law Journal) on SSRN.  Here's the abstract:

This Article examines the overlaps between the right of publicity and rights granted by trademark law and other deception-based restrictions on the use of names and symbols. It shows that the right of publicity creates a more expansive right rooted in a variegated normative soil with elements of privacy, personhood, and property. The Article suggests a proper scope for the right of publicity that protects free speech. The issue of descendibility is also discussed.

February 3, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Top SSRN Downloads

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

1.  [398 downloads]  A Response to the IPCC Fifth Assessment
      Sarah Adams-Schoen (Touro) et. al

2.  [103 downloads]  Agglomerama
      Lee Anne Fennell (Chicago)

3.  [90 downloads]  Surprising Commons
      Carol M. Rose (Arizona)

4.  [74 downloads]  Property in Licenses and the Law of Things
      Christopher Essert (Queen’s)

5.  [71 downloads]  'We Don't Follow, We Lead': How New York City Will Save Mortgage Loans by Condemning Them
      Robert C. Hockett (Cornell)

6.  [58 downloads]  Missing Sticks: Property Institutions and Income Dissipation in Indian Country
      Jacob W. Russ (George Mason) & Thomas Stratmann (George Mason)

7.  [58 downloads]  Land Law in the Age of Globalization and Land Grabbing
      Amnon Lehavi (ICH - Radzyner)

8.  [56 downloads]  A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
      Stephen R. Miller (Idaho)

9.  [56 downloads]  Towards a Pre-History of the Public Domain: Copyright Law and its Limits in Eighteenth-Century England
      Simon Stern (Toronto)

10.  [55 downloads]  Injunctive Relief in Disputes Related to Standard-Essential Patents: Time for the CJEU to Set Fair and Reasonable Presumptions
       Pierre Larouche (Tilburg) & Nicolo Zingales (Tilburg)

February 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

Map of the Day: What's a $100 Worth Where You Live


Vox summarizes:

Common sense says that a dollar goes further in Manhattan, KS, than in Manhattan. This chart from the Tax Foundation attempts to give some rigor to that idea by using Bureau of Economic Analysis data on metro area price levels to show how far $100 can stretch in each county in the United States. There are a few different factors that drive prices. One is that very remote rural areas (see Maine, or even more so, Alaska) tend to have higher prices than rural areas that are more connected to the rest of the country. That reflects the logistical hassles of importing various goods. The other factor is that urban areas are systematically more expensive than rural ones. But there's also huge variation between urban areas. The Boston-Washington corridor and the California coastline are much pricier than the cities of the South and Midwest. That's overwhelmingly a question of housing costs. The size and geography of the big coastal cities has become unfriendly to further sprawl, while zoning restrictions in inner cities and central suburbs prevent new construction from keeping prices in check.

January 30, 2015 | Permalink | Comments (0) | TrackBack (0)