PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Tuesday, November 10, 2015

Bray on the Strange and Tragic Stability of Texas Groundwater Law

BrayZach Bray (Houston) has posted Texas Groundwater and Tragically Stable 'Crossovers' (BYU Law Review) on SSRN.  Here's the abstract:

One recurring question in the academic literature on common-pool resources relates to the persistence of “tragic” commons regimes — systems that encourage, or at least tolerate, the inefficient, wasteful, hazardous, or unfair exploitation of a resource that is easily accessed for and diminished by individual use and consumption. Of course, not all commons are tragic: some common-pool resources invite individual access in efficient, fair, and durable ways. Yet many commonly held resources do lie under systems of governance that are not just tragic but persistently and stubbornly so. Often the tragic aspects of such commons regimes are well known; indeed, for some tragic commons regimes, they are almost self-evident.

Such persistent and obvious tragic commons regimes invite the obvious question: why do they endure? Some persistent tragic commons regimes are particularly puzzling in this respect, because at times they may appear to hesitate right on the verge of positive transformation, only to revert back to tragic stasis when apparent moments of change present themselves. In this Article, I claim that Texas groundwater law represents just such a persistent and puzzling tragic commons regime.

Recent literature has pointed out the ways in which tragically stable commons regimes can resist forces of change and emerging values from rival institutions and analogous commons contexts. In this Article, I pursue a related line of inquiry to examine a different and previously under-examined phenomenon. Using Texas groundwater as an example, I show how an internally dynamic commons regime on the cusp of positive change can be tragically stabilized by values and legal doctrines drawn from rival institutions and analogous commons contexts. I then argue that unless this tragic crossover is decisively broken, the law and institutions that govern Texas groundwater are likely to remain tragically stable.

November 10, 2015 | Permalink | Comments (0)

Monday, November 9, 2015

Some Housing Stuff From the Elections in San Francisco


It turns out the people of San Francisco aren't quite as anti-market as many thought.  In the elections last week,  the people defeated measures that would have dropped far greater regulations on Airbnb and imposed an 8- to 30-month moratorium on any housing development in the Mission that is not 100 percent affordable.  For a full summary of the regulations, check out this piece from CityLab.

November 9, 2015 | Permalink | Comments (0)

Lewyn on Nuisance and Apartment Buildings

Michael Lewyn (Touro) has posted Is an Apartment a Nuisance? (Real Estate Law Journal) on SSRN.  Here's the abstract:

In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

November 9, 2015 | Permalink | Comments (0)

Friday, November 6, 2015

Map of the Day: Every Traffic Accident in America


Click here to see the incredibly cool (and sobering) interactive version.

November 6, 2015 | Permalink | Comments (0)

Butler on Horne and Per Se Takings Rules

ButlerLynda Butler (William & Mary) has posted The Horne Dilemma: Protecting Property's Richness and Frontiers (Maryland Law Review) on SSRN.  Here's the abstract:

In a 2015 decision, the Supreme Court concluded that real and personal property should not be treated differently under the Takings Clause and that a government condition requiring raisin growers, in certain years, to reserve a percentage of their crop for government to manage in noncompetitive venues was a per se physical taking. The decision to treat both real and personal property as equally worthy of protection under the Takings Clause has merit given the weak historical evidence suggesting stronger protection for land and the importance of personal property to income generation and capital development in a modern society. What does not make sense is the Court’s continued expansion of its per se physical takings concept to govern many types of property and regulatory settings. Both real and personal property come in many sizes, shapes, and colors. Takings analysis should not ignore differences in the types of property, nor in the complexities of the various property settings. These differences relate to the nature of each type of property, to the traits and characteristics of the property interests and resources, and to the legal rules and principles defining and managing those interests.

Under a per se approach, those differences do not matter. Under a per se approach, the Court’s physical takings analysis is simplistic and one-dimensional: did government physically appropriate, seize, or invade private property without payment of just compensation? Generally left out of the equation is any consideration of the public interest or third-party concerns, regardless of their importance or their role in shaping the property interest. Nor does a physical appropriation actually have to occur. The per se physical taking may instead be more conceptual than actual or may involve one right in a bundle of rights, still leaving the property owner with other rights. In its drive for clarity and simplicity, the Court thus has posed a serious dilemma for takings jurisprudence: the difficult task of solidifying constitutional protection for all types of property with an all-encompassing, absolute rule that can provide sufficient predictive value for the complex contexts of modern-day property. What the Court’s approach overlooks is property’s ability to evolve and provide order for emerging resources and new forms of property. What the Court’s approach overlooks is the need to develop constitutional principles that reflect property’s richness and frontiers.

November 6, 2015 | Permalink | Comments (0)

Bouvier on Urban Micro-Livestock Ordinances

Bouvier_jaimeJaime Bouvier (Case Western) has posted How Cities Are Responding to the Urban Agriculture Movement with Micro-Livestock Ordinances (Urban Lawyer) on SSRN.  Here's the abstract:

As the food movement grows, and more people care about how their food is produced, many are taking control by growing and producing it themselves. This includes raising animals like chickens, goats, and bees for eggs, milk, and honey. In response, cities are re-examining their zoning codes so that people who want to do so, can do so legally and in ways that can work in dense urban environments. This paper examines both the movement to raise micro-livestock in cities and cities that have created comprehensive micro-livestock ordinances to accommodate it.

November 6, 2015 | Permalink | Comments (0)

Wednesday, November 4, 2015

Can You Shoot a Drone Flying Over Your Property?

In parts of Kentucky, the questions has been settled in the affirmative:

[Here's] the case of a Kentucky man named William Merideth—otherwise known as the Drone Slayer.

On July 26, 2015, after his daughter reported seeing a strange drone hovering nearby, Merideth grabbed a 12-gauge shotgun, stepped onto his porch, and fired at the object once it crossed over his property line. The drone went down, and, according to Merideth, its owner soon arrived to retrieve it. “Four guys came over to confront me about it, and I happened to be armed, so that changed their minds,” Merideth told WDRB back in July. “I told them, ‘If you cross my sidewalk, there's gonna be another shooting.’ ” The men retreated. Somewhere in America, “The Star-Spangled Banner” played. Then, as was inevitable, the cops showed up; Merideth was arrested and charged with criminal mischief. Sic transit gloria, I guess.

On Monday, however, the Drone Slayer was exonerated in a county court when Judge Rebecca Ward dismissed the charges against him. Judge Ward reasoned that Merideth was merely defending his right to privacy when he fired at the offending drone, which Merideth feared was being used to spy on him and his family. “I feel vindicated,” Merideth told WAVE3 News. “Police told me there was nothing they could do about it. Nobody would do anything about it, so I did something about it.”

November 4, 2015 | Permalink | Comments (0)

Lewyn & Rosenman on Parking Restrictions

Michael Lewyn (Touro) & Judd Rosenman (NYU - Engineering) have posted No Parking Anytime: The Legality and Wisdom of Maximum Parking and Minimum Density Requirements (Washburn Law Review) on SSRN.  Here's the abstract:

This article focuses on two aspects of smart growth policy that have thus far received little attention: maximum parking and minimum density requirements. To ascertain the frequency of such regulations, we examine the zoning regulations of twenty-four mid-sized cities, defined as those with populations between 500,000 and one million residents. The article concludes that the first type of regulation is somewhat common, but is usually restricted to certain types of land uses or sections of a city. Minimum density requirements, by contrast, are quite rare and quite lenient. Because these types of regulations have received little scholarly attention and are often fairly recent, it is too early to draw any firm conclusions about their effects.

November 4, 2015 | Permalink | Comments (0)

Tuesday, November 3, 2015

Cheng on Takings Law in China

JieJie Cheng (British Columbia) has posted Enforcing Takings Clauses in China (Tsinghua China Law Review) on SSRN.  Here's the abstract:

Property rights are considered fundamental in constitutional jurisprudence and essential for economic development. However, China’s economic growth over the past 30 years has posed a special paradox to many theorists: for some, it is a mysterious phenomenon that China could continue rapid growth for a few decades without proper contract law until 1999 and without constitutional private property rights until after 2004. For others, the lack of property rights explains the social unrests arising from land-taking and the potential risk of non-sustainability of further development.

This does not mean that there is no property protection in China; both the Constitution and other relevant laws provide for property rights. However, it is the security of property rights that is questioned. Not only do individuals find themselves vulnerable when government agencies (the State) take their property, but also collective organizations in rural areas fail to resist expropriation requests from the State. According to the original text of Article 10 of the 1982 Constitution, “The state may in the public interest take over land for its use in accordance with the law. No organization or individual may expropriate, buy, sell or lease land, or unlawfully transfer land in other ways.” It was not until 2004 when the 20th and 22nd Amendment of the Constitution added compensation to the original clause.

November 3, 2015 | Permalink | Comments (0)

Monday, November 2, 2015

Real Estate Investor Deeds Underwater Property to Homeless Man

Well, this just seems wrong:

Abana Tabb carries a small cardboard sheet hand-printed with the words "Help Please Homeless" while he panhandles in downtown Chicago, often near the Metra station at Millennium Park.

His homelessness is something of a contradiction, though. Cook County land records show that Tabb owns six properties in the Chicago area, thanks to an investment corporation that passed deeds to him. "I feel like Donald Trump with all them houses," Tabb said, laughing on a rainy afternoon in the Burger King at the Millennium Park station.

But the run-down properties owned by Tabb — who was subsequently named in several lawsuitswouldn't likely be holdings in Trump's portfolio. They include a boarded-up house in Dixmoor, a dilapidated house in Chicago's South Shore neighborhood and three vacant lots in the Grand Crossing, Back of the Yards and Englewood neighborhoods on the South Side.

Those holdings are what real estate agents call distressed properties, and they were transferred to Tabb by Z Financial Illinois G Properties LLC, a property investment firm with offices on LaSalle Street in the Loop, where Tabb occasionally panhandles.

Tabb said he never lived in them and until recently didn't know he was their owner.

November 2, 2015 | Permalink | Comments (0)

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.  [286 downloads]  2014 Developments in Connecticut Estate and Probate Law
      Jeffrey A. Cooper (Quinnipiac) and John R. Ivimey (Independent)

2.  [187 downloads]  Owning Red: A Theory of Indian (Cultural) Appropriation
      Angela Riley (UCLA) and Kristen A. Carpenter (Colorado)

3.  [167 downloads]  2015 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
      Nancy A. McLaughlin (Utah) and Stephen J. Small (Independent)

4.  [130 downloads]  Interpreting Conservation Easements
      Nancy A. McLaughlin (Utah)

5.  [91 downloads]  Property's Ceiling: State Courts and the Expansion of Takings Clause Property
      Maureen E. Brady (Yale)

6.  [88 downloads]  Bailment and the Property/Contract Interface
      Christopher M. Newman (George Mason)

7.  [80 downloads]  Property and Secrecy
      Amnon Lehavi (Herzliyah)

8.  [76 downloads]  Property's Sovereignty
      Larissa M. Katz (Toronto)

9.  [69 downloads]  Introduction to Spontaneous Order and Emergence of New Systems of Property
      Yun-chien Chang (Academia Sinica) and Richard A. Epstein (NYU)

10. [67 downloads]  Waste Law
      Jill Fraley (Washington & Lee)

November 2, 2015 | Permalink | Comments (0)

Friday, October 30, 2015

Katz on Property's Sovereignty

Katz-larissaLarissa Katz (Toronto) has posted Property's Sovereignty (Theoretical Inquiries in Law) on SSRN.  Here's the abstract:

This paper shows how property rights might be fundamental to the very nature of our legal order while admitting that the modern realities of taxation, regulation, and expropriation are not attacks on property rights as such. By distinguishing between a principle of sovereignty, which I argue constitutes the core authority of owners, and a principle of accession, which I argue regulates the distribution of benefits and burdens attached to the position, we can see how this is so. Attacks on property rights as such would be, rather, acts by the state that deny the basic sovereign authority of owners, by subordinating owners to the private choices of others.

October 30, 2015 | Permalink | Comments (0)

Wednesday, October 28, 2015

Jimmy Carter to Help Decide Who Gets MLK's Bible


Trying to sell the family bible? Oy:

The children of the late Dr. Martin L. King, Jr. have been in a public dispute over their father’s legacy and belongings. There have been many who have worked both behind-the-scenes and in public to call for a resolution to this fight. However, these efforts failed, as the fight even entered the court system. At issue is the possession and use of Dr. King’s personal Bible as well as his actual Nobel Peace Prize. There is no doubt that Dexter, Bernice, and Martin L. King, III have every right to determine their father’s legacy. But the brothers contend that a 1995 agreement also gives King’s estate ownership of their father’s property. However, Bernice states that the Bible and Nobel Peace Prize belonged to their mother, the late Coretta Scott King and is not a part of that agreement. Her brothers, however, wanted to sell the Nobel medal and Bible to unknown parties. The Bible is considered even more important because President Obama used it to be sworn into office as the nation’s first Black president.

In an effort to mediate this issue, former US President Jimmy Carter has agreed to step in and help. Carter stated, “I am honored to be working with the King family in an effort to resolve the outstanding legal issues relating to their remarkable family legacy. I have great respect for each of the three heirs of this legacy. They are working diligently with me, and I believe we will be able to resolve these difficult disputes once and for all.”

October 28, 2015 | Permalink | Comments (0)

Infranca on Micro Housing Units and the Sharing Economy

InfrancaJohn Infranca (Suffolk) has posted Spaces for Sharing: Micro Units Amid the Shift from Ownership to Access (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

This article, written for the Fordham Urban Law Journal’s symposium entitled Sharing Economy, Sharing City: Urban Law and the New Economy, explores the interaction between the sharing or peer-to-peer economy and new forms of housing, particularly micro-units. Certain components of the sharing economy, such as car sharing and co-working, rely on sufficient demand, typically produced by residents within close proximity to an asset-hub. Trade in the idle capacity of privately-owned goods frequently depends upon potential users sufficiently nearby to render sharing convenient. Land use regulations that permit development of micro-units may increase density to levels that better support a sharing economy infrastructure. The sharing economy is also frequently invoked to explain consumer demand for such units – as potential residents choose to forego space and rely on shared resources. Developers have sought to make micro-units more attractive to potential residents by providing access, sometimes on-site, to car and bicycle sharing. Such resources also may ease worries of neighbors concerned about increased density and some local governments have begun to consider the provision of sharing economy infrastructure in the land use approval process. In addition, certain new forms of residential development more expressly incorporate a culture of sharing and at times explicitly identify as a component of the sharing economy.

This article sketches out some of the theoretical and practical implications of the relationship between micro-units and housing more generally and the sharing economy. Even as many micro-unit residents embrace the sharing economy to complement their small living spaces, these units provide residents with an alternative to perhaps the simplest form of contemporary property sharing – living with roommates. They represent a turn away from certain informal sharing of property (kitchen items and food, living room furniture, music and book collections) towards more formal sharing through the peer-to-peer economy. The new exchanges of personal property facilitated by the sharing economy thereby simultaneously enable the increased privatization of an individual’s residence.

As the sharing economy reshapes cities it is also changing the types of housing demanded by urban residents. This article suggests that as cities revise existing regulations to respond to both the growing demand for micro-units and the expanding role of the sharing economy in urban areas, they should more carefully consider the potential synergies between these phenomena.

October 28, 2015 | Permalink | Comments (0)

Mollah on Hindu Women's Right to Property

Al_ifranIfran Mollah (Eastern University - Bangladesh) has posted Hindu Women's Right to Property at the Crossroads: The Tension between Human Rights and Cultural Relativism (Journal of Society and Change) on SSRN.  Here's the abstract:

Property rights of women under Hindu religious system have fairly been considered an issue of conflicting discourse both from domestic as well as global perspective. Restrictions imposed by Religio-legal as well as socio-cultural norms and practices have embedded the discriminatory level of treatment in more deep rooted dimension for Hindu women as to property rights. This controversy has been excelled with the pressure of global community for establishing a fair and equal property rights while assessing the feasibility and implications of universal rights regime disregard of religious or cultural differences. In the course of time, intervention of legislative authority for improvising present situation and to make the whole rights regime at national level to synchronize with universal rights framework through the amendment of existing domestic laws has proved to be successful. Nevertheless, in the context of practical enforcement, bringing the equilibrium of justice in between religious command and secular authority has created double jeopardy for the legislative authority. In this backdrop, the theory of cultural relativism has been resorted to eliminate the standoff between religious norms & practices of a particular community and the demand of global community for fair and equal treatment of all. Cultural relativists have been heavily criticized for being too defensive as against the principle of universality and supporting discrimination and abuse of human rights in different circumstances. Hence, it is essential to revisit the role of Religio-legal, universal and socio-cultural theory and practices in establishing the domain of equal status of right to property for Hindu women.

October 28, 2015 | Permalink | Comments (0)

Tuesday, October 27, 2015

Serkin on Peter Gerhart's 'Property Law and Social Morality'

SerkinChristopher Serkin (Vanderbilt) has posted From Social Recognition of Property to Political Recognition by the State: Peter Gerhart's 'Property Law and Social Morality' and the Evolution of Positive Rights (Texas A&M Journal of Real Property Law) on SSRN.  Here's the abstract:

This solicited symposium piece responds to Peter Gerhart's book, "Property Law and Social Morality". Gerhart offers an interesting evolutionary account of property that seeks to bridge the gap between natural rights theorists and positivists. He separates out distributional concerns from positive law, and therefore explicitly limits the reach of the Takings Clause. This response argues that property is inherently redistributive, and that the Takings Clause plays a role in mediating redistributive pressures. It ultimately argues that the State is an active and not a passive player in the definition of property rights, contrary to Gerhart's theory.

October 27, 2015 | Permalink | Comments (0)

Monday, October 26, 2015

The Conflicting Goals of American Housing Policy


Daniel Hertz considers the tension at the heart of American housing policy:

Here are two ideas that, if you’re like most Americans, you probably mostly agree with:

1. Government policy should help keep housing broadly affordable, so as not to price out people of low or moderate incomes from entire neighborhoods, cities, or even metropolitan areas.

2. Government policy should protect residential neighborhoods from things that might negatively impact housing values, because homes are an important investment and wealth-building tool.

Having read them together like that, you’ve probably already jumped ahead to the big reveal, which is that these two ideas are almost entirely mutually exclusive. The first essentially says, “Use housing policy to keep home prices down”; the second says, “Use housing policy to keep home prices up.”

It’s no wonder, then, that housing policy is a bit confused. The same municipal governments that require that housing on scarce urban land be taken up only with resource-intensive, high-building-cost single family homes; that use zoning to separate out unwanted apartments, shops, transit lines, and other uses on the grounds that they might hurt home values; and promote neighborhood beautification and other projects on the grounds that they will raise housing values, also issue affordable housing reports trying to understand why home prices aren’t lower, and levy “impact fees” on new development for the alleged crime of, you know, raising home values.

October 26, 2015 | Permalink | Comments (0)

Brady on State Courts and the Expansion of Takings Clause Property

BradyMolly Brady (Yale - Ph.D.) has posted Property's Ceiling: State Courts and the Expansion of Takings Clause Property (Virginia Law Review) on SSRN.  Here's the abstract:

The federal and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused on constitutional limits on judicial restrictions as to what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property — and the problems associated with that capability.

Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth and twentieth century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets — sometimes in excess of a hundred feet — to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated it as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their property suffered.

As this history demonstrates, state courts can play an important and desirable role in takings law by recognizing new forms of constitutional property. But courts should not have unfettered discretion to invent new rights and then find them taken, as this may incur significant administrative and systemic costs. This Article therefore presents a framework for identifying constitutional property interests derived from both the street grade cases and other precedents, arguing that it can effectively cabin inappropriate expansions of what constitutes private property for takings purposes while keeping the important structural function of constitutional property innovation intact.

October 26, 2015 | Permalink | Comments (0)

Friday, October 23, 2015

San Francisco’s “Airbnb Measure”

The American Spectator has a piece on a November ballot initiative in San Francisco:

Both proponents and opponents of San Francisco’s “Airbnb measure” — Proposition F — see the November ballot initiative as a David vs. Goliath contest. Both sides also see themselves as David. And both sides have a point.

The measure would impose additional restrictions on short-term rentals. Supporters can claim to be the little guys because the deep-pocketed opposition — headlined by the home-sharing technology platform Airbnb — has $8 million to bury the less than $400,000 raised by the “yes” campaign, according to proponent Dale Carlson. Prop F does have high-profile supporters, notably Sen. Dianne Feinstein, but when the other side outspends you by a 20-1 ratio, you can call yourself the underdog.

The No on F folks also stand for the little guy (or gal) who rents out a guest room to make ends meet. San Francisco Supervisor Scott Wiener says he opposes the measure because more and more of his constituents rely on Airbnb. Many are women, often older women, who are “house poor” and presently could not afford to buy the homes they bought years ago. They don’t want to take on a full-time roommate; they also enjoy the energy young travelers bring with them. “The one thing they have is that spare bedroom,” Wiener told the San Francisco Chronicle’s editorial board last month. If Prop F is approved, “they are going to get thrown under the bus.”

October 23, 2015 | Permalink | Comments (0)

Hernández-López on the Sriracha Shutdown

Hernandez_EErnesto Hernández-López (Chapman) has posted Sriracha Shutdown: Hot Sauce Lessons on Local Privilege and Race (Seton Hall Law Review) on SSRN.  Here's the abstract:

In 2013, Huy Fong Foods, maker of the trendy hot sauce sriracha, fought in court to stay open. The Los Angeles suburb of Irwindale tried to enjoin all sauce production, arguing that "offensive chili odors" created a public nuisance. This was an unexpected development because Huy Fong was recently invited to relocate to Irwindale and air quality regulators found no problems. Sauce lovers and the media closely watched this spicy legal drama, dubbed the "sriracha-apocalypse." Originally created for Vietnamese phở soup, sriracha is extremely popular worldwide.

This conflict points to a suburban racialized exclusion, sourced in municipal legal powers. With a population that is over ninety percent Latino, Irwindale was incorporated to capitalize on racial divisions. Mining companies sought these divisions in order to benefit from low taxes. Incorporation created a legal privilege in municipal powers to exclude outsiders. Irwindale's public nuisance lawsuit to shutdown sriracha exemplifies such a tactic. Eyeing this food conflict, this Article uses critical approaches to race and geography to illustrate the influence local government law has on race relations in the suburban United States. This Article also illustrates how municipal legal powers result in racialized exclusion, despite race neutral legal positions and a lack of racist animus.

October 23, 2015 | Permalink | Comments (0)