PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Tuesday, January 13, 2015

Geary on Land Use Policies and Modular Home Construction

Charlene Geary (Independent) has posted The Effects of Land Use Policies on Modular Home Construction: A Comparative Case Study of Three Counties in Massachusetts on SSRN.  Here's the abstract:

The primary objective of this comparative case study is to identify the law and policy barriers to modular home construction in Massachusetts with a particular focus on restrictive covenants and municipal land use policies.

This is a comparative case study of 3 counties in Massachusetts including Dukes County, Nantucket County, and Barnstable County. The three counties in the study were chosen on the basis that they share the same population range of 10,000- 20,000, and the similar cost of construction for new homes ranging $200,000-$600,000 from 2007-2009. A Registry of Deeds search was also conducted from 2003-2013 to identify any restrictive covenants that prohibit on the mode of construction during this timeframe.

The main findings in the study conclude there are no law and policy barriers to modular home construction in the three counties in the case study. Modular homes must be built to the same standard as site-built homes according to the Massachusetts State Building Code, which is the only building code in Massachusetts. The study also concluded there is a lack of awareness of modular homes being a viable building option, which leads to the discrimination of modular homes. Creating an awareness that modular homes have evolved into an equally comparable product in relation to site-built homes is the key element to the future success of modular home construction.

The research also concludes that restrictive covenants are not a barrier to modular home construction in the three counties in Massachusetts. The Registry of Deeds search did not identify any restrictive covenants that prohibit on the mode of construction from 2003-2013. The continuation of this study in other counties in Massachusetts, other New England states, and into the southern part of the country will bring the modular home industry closer to an answer in rectifying the restrictive covenant dilemma that currently exists in the south.

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

Monday, January 12, 2015

More Bad News for Bikeshare

The New York Times details the struggles of PBSC Urban Solutions, a company that (used to) operate bike share programs and build bike share bikes:

“That bike, nobody can argue with his bike,” said Josh Squire, the chief executive of CycleHop, a bike-share operator that does not use the Bixi technology.

The Montreal company also developed free-standing docking stations with solar panels for power and Wi-Fi to transfer payment and operations data. The stations, which can be lifted onto the back of a truck, could be easily removed for road repairs, construction projects or unfriendly Montreal winters.

But the city’s dream of self-financing proved elusive. While money was flowing in from foreign buyers, it was immediately going out again to keep Montreal’s bikes rolling. Users could buy passes of various durations at rates that had been set unrealistically low, while operating costs were higher than anticipated. That left the company struggling to pay its suppliers.

The video below is from an earlier Times article about the problems that have popped up in New York's bike share program:

January 12, 2015 | Permalink | Comments (0) | TrackBack (0)

Alterman on U.S. Regulatory Takings Debate through an International Lens

AltermanRachelle Alterman (Israel Institute of Technology) has posted The U.S. Regulatory Takings Debate Through an International Lens (The Urban Lawyer) on SSRN.  Here's the abstract:

The United States leads the world in the complexity of its regulatory takings law, the amount of academic writing devoted to the topic, and the intensity of the surrounding public debate. This is one of the (ancillary) findings of a large-scale comparative study of regulatory takings law. A look from the “outside” may shed light on American takings law and the “property rights” debate. An international looking glass can allow both sides in this debate either to fi nd alternative models to support their own position (with appropriate adjustments) or to develop middle-of-the road approaches towards a rapprochement in this longraging contest.

In every country where land use regulations and development controls operate (the vast majority of countries today), they change the economic value of real property. The question addressed here focuses on the downwards effect — what Americans call “regulatory takings.” Do landowners have a right to claim compensation or some other remedies from the planning authorities? This topic addresses an inherent raw nerve of planning law and practice, bearing deep economic, social and ethical implications. However, not in every country does the issue generate the same intensity of legal and public debate as it does in the United States.

This article draws on the findings of comparative research encompassing thirteen countries around the world. Readers of this Festschrift, who are acquainted with American takings law, will be able to view it from this new perspective. A comparative perspective can help to create a sense of scale and proportionality that conventional domestic legal analysis cannot offer.

January 12, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

If the Government Takes Your Raisens is it a Taking

Will Baude does some digging on raisin price regulations:

The raisin regulations require raisin producers to reserve a portion of their crop to be sold by the government; the government determines both the portion and the price, which it sometimes sets to be basically zero. The Hornes argued that these regulations are a taking of the raisins, and that they are therefore entitled to a determination about whether the government’s chosen compensation is “just compensation” within the meaning of the Takings Clause.

Normally, when the government takes your property away from you, as opposed to regulating it, that’s a taking. I take it that if the government told me to set aside part of my land and forced me to get rid of it for a government-determined price, that would be a taking. But the Ninth Circuit concluded that wasn’t true of the raisins for two reasons — first, because they were personal property rather than real property, and second because they did not lost all of their rights in the raisins, since they “retain the right to the proceeds of their sale.” (The kind of taking I’m talking about here is called in the cases a “per se taking,” as opposed to a regulatory taking, which sometimes, but rarely, arises when property is subject to burdensome regulations.)

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

Lehavi on the Globalization of Property Law

Amnon Lehavi (ICH - Radzyner) has poted Land Law in the Age of Globalization and Land Grabbing (Book Chapter) on SSRN.  Here's the abstract:

Is land becoming a global commodity? Who are the actors shaping such a cross-border market for real estate and who remains excluded from participating in it? Which types of interrelations do local and supranational legal systems have in ordering property rights and other legal interests in what is otherwise considered the quintessential location-fixed asset? How are law, economics, politics, and culture likely to interact in the context of land in an age of increasing globalization?

This chapter underscores the tension between the conceptual oddity and practical significance of cross-border effects of land law, and shows how the scope and nature of such extraterritorial implications have changed significantly over the past few decades in view of certain political, economic, and social processes. This turn of events constantly puts pressure on national legal systems that had traditionally viewed this field as literally embodying the law of the land. At the same time, current market trends toward globalization are far from resulting in clear-cut convergence among legal systems or in a shift of the mainstay of legal ordering to the supranational realm. This chapter analyzes the inherent dilemmas and challenges that land law faces in adequately addressing the changing landscape of real estate in the age of globalization.

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

Thursday, January 8, 2015

Everyone Hates Penn Station

Slate summarizes:

New Yorkers are known to disagree about a lot of things. Who’s got the best pizza? What’s the fastest subway route? Yankees or Mets? But all 8.5 million New Yorkers are likely to agree on one thing: Penn Station sucks.

There is nothing joyful about Penn Station. It is windowless, airless, and crowded. Some 650,000 people suffer through Penn Station on a their daily commute—more traffic than all three of the New York area’s major airport hubs combined.

[...] Though Penn Station is a drab, low-ceilinged rat maze of a station, it used to be the opposite. It was vast, light-filled, and gorgeous. It was the fourth-largest building in the world when it was finished.

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Conference Announcement: Sustainability

Sustainability Conference of American Legal Educators (SCALE)

May 8, 2015

Sandra Day O’Connor College of Law – Arizona State University

The Law and Sustainability Program at the Sandra Day O’Connor College of Law is pleased to announce its First Annual Sustainability Conference of American Legal Educators (SCALE) Conference to be held on May 8, 2015 at the Sandra Day O’Connor College of Law in Armstrong Hall on the Arizona State University Campus in Tempe, Arizona.

This new conference will be an annual, national event for legal academics researching in sustainability-related areas. The conference will offer a unique forum for panels and presentations falling within one or more broad subject matter areas pertaining to sustainability, including but not limited to:

  • Climate Change Law
  • Energy Law
  • Water Law
  • Environmental Law
  • Natural Resources Law
  • Land Use and Zoning Law
  • Agricultural and Food Law
  • Disaster Law

The conference’s inaugural keynote speaker will be Professor Daniel Esty, Director of the Yale Center for Environmental Law & Policy at Yale Law School.

Presenters who are interested will also have an opportunity to join in an organized hike of a nearby mountain on the morning of Saturday, May 9, 2015.

For information on how to submit panel or presentation proposals, please click here.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Van der Walt & Raphulu on the Right of Way of Necessity

Andre Van der Walt (Stellenbosch) & Tshilidzi Raphulu (Stellenbosch) have posted The Right of Way of Way of Necessity: A Constitutional Analysis (Journal of Contemporary Roman-Dutch Law) on SSRN.  Here's the abstract:

The aim of this contribution is to present a constitutional analysis of the legitimacy and justifiability of the common law principles that regulate the judicial granting of a right of way of necessity. A right of way of necessity is a peculiar servitude of way that enables the owner or user of landlocked land (dominant tenement) to gain access to public transport network systems over neighbouring land (servient tenement) in a situation where the dominant tenement is geographically cut off from any access to a public road or where the available access is not sufficient for optimal use and exploitation of the dominant land. More particularly, the right of way of necessity is characterised by the circumstance that the servitude is imposed by judicial order (ex lege), based on compliance with certain common law requirements, without the permission of the servient owner and even against his will.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

What Happens to Dead Malls?

The New York Times takes a look at the growing number of malls across America that have failed:

The Owings Mills Mall is poised to join a growing number of what real estate professionals, architects, urban planners and Internet enthusiasts term “dead malls.” Since 2010, more than two dozen enclosed shopping malls have been closed, and an additional 60 are on the brink, according to Green Street Advisors, which tracks the mall industry.

Premature obituaries for the shopping mall have been appearing since the late 1990s, but the reality today is more nuanced, reflecting broader trends remaking the American economy. With income inequality continuing to widen, high-end malls are thriving, even as stolid retail chains like Sears, Kmart and J. C. Penney falter, taking the middle- and working-class malls they anchored with them.

One factor many shoppers blame for the decline of malls — online shopping — is having only a small effect, experts say. Less than 10 percent of retail sales take place online, and those sales tend to hit big-box stores harder, rather than the fashion chains and other specialty retailers in enclosed malls. Instead, the fundamental problem for malls is a glut of stores in many parts of the country, the result of a long boom in building retail space of all kinds.

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

Monday, January 5, 2015

Tough to Find Buyers for Middle-Finger Building


Developers are struggling to sell some of the most infamous condo units in Washington, D.C:

One of Washington’s most notorious pieces of real estate — a rowhouse-turned-sky-high condo on V Street NW that soars three stories over its immediate neighbors — is struggling to sell its most premium units.

The three-unit condo building, dubbed The Ava, has gone nearly 12 months without selling its middle unit and penthouse. Dropping the prices to just under $700,000 and $800,000, respectively, has yet to yield buyers. (The less-expensive bottom unit sold in August for $375,000.) The average number of days on the market for a condo in the building’s immediate vicinity, along the coveted U Street corridor, is about 19 days, according to a report generated by Adam Turek, a Coldwell Banker Realtor who had clients tour the building in the spring and pass on it.

[...]  People who live next to The Ava have little sympathy. They understand that developers have the legal right to expand two-story rowhouses by stretching them upward and carving them into multiple condo units. But they think The Ava took the concept too far.

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

Takacs on Internatonal Environmental Injustice

TakacsDavid Takacs (Hastings) has posted Protecting Your Environment, Exacerbating Injustice: Avoiding 'Mandate Havens' (Duke Environmental Law & Policy Forum) on SSRN. Here's the abstract:

To compensate for a grave environmental injustice -- climate change caused by industrial pollution -- Northern legal solutions should not exacerbate the problem. In this article, I describe how environmental goals are undermined when domestic nations of the North implement greenhouse gas reducing laws, and I offer some solutions towards ensuring that laws aimed to improve domestic environments and to mitigate the externalities of Northern consumption actually contribute to a more just world. Drawing on the concept of "pollution havens," I introduce the concept of "mandate havens," i.e. Northern laws mandating environmental protection that have detrimental impacts in the South. I focus on how mandate havens result from laws requiring biofuels production and from laws that implement REDD , and I present models for how governments, businesses, and private citizens can work across national boundaries to mitigate environmental injustice both through reducing pollution back home while alleviating poverty and protecting local ecosystems abroad.

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

Friday, January 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.  [129 downloads]  The Justice of Private Law
      Hanoch Dagan (Tel Aviv) & Avihay Dorfman (Tel Aviv)

2.  [124 downloads]  Regulating Mortgage Leverage: Fire Sales, Foreclosure Spirals and Pecuniary Externalities
      Albert A. Zevelev (Penn)

3.  [123 downloads]  Probate Law Meets the Digital Age
      Naomi Cahn (George Washington)

4.  [104 downloads]  Doctrinal Categories, Legal Realism, and the Rule of Law
      Hanoch Dagan (Tel Aviv)

5.  [104 downloads]  Libertarianism and Originalism in The Classical Liberal Constitution
      Ilya Somin (George Mason)

6.  [101 downloads]  Using the New Equal Protection to Challenge Federal Control Over Tribal Lands
      Alexander Tallchief Skibine (Utah)

7.  [83 downloads]  The Federal Public Trust Doctrine: A Law Professors' Amicus Brief
      Michael C. Blumm (Lewis & Clark) & Lynn Schaffer (Lewis & Clark)

8.  [81 downloads]  Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules
      Giuseppe Dari-Mattiacci (Amsterdam) & Carmine Guerriero (Amsterdam)

9.  [77 downloads]  Contractual Indescendibility
      David Horton (Davis)

10.  [74 downloads]  Reforming Property Law to Address Devastating Land Loss
       Thomas W. Mitchell (Wisconsin)

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

Wednesday, December 31, 2014

Map of the Day: What America Wanted for Christmas

The New York Times worked with Google to uncover the popular gift ideas in various cities across the United States. Rather than centering on our long-term desires, the algorithm highlighted current trends by focusing on searches for things that were more popular this year than last.

Here’s a map Quartz made of their findings:


December 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

Police Patrols in Public Housing Projects

Is pubic housing over-regulated and over-policed?:

In New York housing projects, police officers can demand identification from people who are hanging out in a public space, like a building lobby. Even if they prove that they live in the building, officers may cite them for “lingering.”

It is not a crime, but it is a violation of the New York City Housing Authority’s rules.

There are many such rules that govern life in the projects, like no playing in the hallways and no barbecuing without a permit. Breaking any of them can put a tenant at risk of eviction from a system that offers some of the city’s most affordable housing. Simply waiting outside for a pizza delivery can draw the attention of the police, said Ronald Thomas, 24, who described being approached by two officers recently in the Red Hook Houses in Brooklyn. Only the deliveryman’s arrival spared Mr. Thomas a citation, he said. Amid broader calls to ratchet down the pressure on low-level crimes, little scrutiny has been paid to a routine patrol tactic used by the Police Department: In public housing, officers walking a beat are watching not only for offenses big and small but also for behavior that is not illegal at all.

December 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Ryan on Property Exempt from Local Zoning Ordinances in Kentucky

Christopher Ryan (Vanderbilt Grad Student) has posted Old School: A Recommendation for the Treatment of the Disposition of Property Exempt from Local Zoning Ordinances in Kentucky (Kentucky Journal of Equine, Agriculture, & Natural Resources Law) on SSRN.  Here's the abstract:

The legal treatment of the conveyancing of exempt property, such as property used for educational purposes, is both complex and inconsistent. Unlike ordinary properties, properties used for education are exempt from local zoning ordinances and even local tax codes. Thus, the conveyance of the property to a private entity and its later use for non-public purposes subjects the property both to zoning ordinances and tax regulation. But, as a matter of course, should this be the case? This article examines what happens when an exempt piece of property, specifically property used for the purpose of public education, is sold in Kentucky. The article also makes a recommendation about the disposition of exempt property. Part II of this Article reviews the change in population in the Commonwealth in greater detail and the effect that this change has on the use of public infrastructure, specifically demonstrated by the overabundance of disused public facilities. Part III unpacks the origins and facets of zoning regulation. Part IV discusses nonconforming uses and analogizes exempt properties to nonconforming properties. Part V addresses the current treatment of these kinds of properties in Kentucky and extra-jurisdictional methods for treating the sale of exempt property and properties with nonconforming uses. Finally, Part VI focuses on the central question of how the sale of exempt property should be treated in two prongs: (1) incorporation into zoning ordinances after disposition, and (2) the elements, if any, of exemption that should carry over to the new property, recommending an approach to incentivize the efficient use or sale and adaptive reuse of disused, exempt property.

December 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

The Year's Worst Moments in Architecture


Kriston Capps puts together a list of the worst projects to pop-up in 2014. 

December 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Atuahene on Land Restitution in South Africa

Atuahene_Bernadette_250pxBernadette Atuahene (Chicago-Kent) has posted The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa (Law and Social Inquiry) on SSRN.  Here's the abstract:

One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land restitution commission officials to sustain a conversation with each other had the greatest effect on whether respondents believed that the land restitution process was fair. The study also contributes to the existing literature by exploring the institutional arrangements and resources necessary to facilitate communication and to overcome any communication breakdowns encountered.

December 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 25, 2014

Merry Christmas!

Merry X-mas, Happy Hanukkah, and a festive New Year, from my family to yours.  Normal blogging will return next week.


December 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, December 19, 2014

Denmark Challenges Russia (and Canada) for Control of the North Pole

Yes, that Denmark:

In time for Christmas, Denmark has claimed Santa Claus's home -- the North Pole. Although it might seem like a joke, Denmark's wish to expand its influence in the Arctic is part of a serious geopolitical struggle: Canada and Russia also claim the spot.

It all comes down to future revenue sources. According to a 2008 U.S. Geological Survey the Arctic Circle might hide between 13 and 30 percent of the world's undiscovered oil and gas resources under a thick layer of ice. Climate change and the melting of glaciers are expected to make much of those resources accessible to drilling and mining faster than expected, as two new studies suggested this week. Melting ice could also open new transport routes and benefit those who control them.

But why was Denmark -- a relatively small country, even for European standards -- able to enter the fight with Canada and Russia in the first place? Neither France nor Germany has yet to make such a claim, let alone some of its Nordic neighbors. It's because the Kingdom of Denmark possesses the semi-autonomous country of Greenland, located right next to the Arctic.

December 19, 2014 | Permalink | Comments (0) | TrackBack (0)

McCarl on Unpopular Rules in Common Interest Communities

MccarlRyan McCarl (Independent) has posted When Homeowners Associations Go Too Far: Political Responses to Unpopular Rules in Common Interest Communities (Real Estate Law Journal) on SSRN.  Here's the abstract:

Common Interest Communities (CICs) are an increasingly ubiquitous form of homeownership and land use control in the United States. The statutory and common law frameworks that govern CICs are characterized by deference to homeowners association (HOA) actions. While courts have generally deferred to HOA decisions, however, the political branches of government — legislatures at the federal, state, and local level — have increasingly intervened to carve out specific, discrete rights for homeowners that override the rules of CICs, creating rights to keep a pet, hang a clothesline, and fly an American flag, among others. As yet, no article has attempted to explain why legislatures have repeatedly stepped in to carve out limited exceptions to the general rule of deference to HOA decisions.

In this Article, I suggest reasons why some owner-HOA disputes trigger political intervention, even though most such disputes attract little attention outside the CIC. I argue that homeowner-HOA conflicts are most likely to attract political attention where the owner is a sympathetic litigant able to attract political empathy, and where the rule at issue is intrusive and salient rather than relating to something perceived as of minimal importance. Finally, if the homeowner’s cause aligns with an interest group and does not trigger opposition from a different interest group, the owner’s chance of triggering political change is likely to be significantly increased.

December 19, 2014 | Permalink | Comments (0) | TrackBack (0)