Friday, March 6, 2015
One paragraph on a larger shift in former Harvard President's thinking:
I spoke with Summers on the phone last week to get more details about his thinking. One of his central goals, he said, is to make sure that “workers get a larger share of the pie.” He advocates aggressive steps to eliminate “rents” — profits that result from monopoly or other forms of government protection from competition. Summers favors attacking rents in the form of “exclusionary zoning practices” that bid up the price of housing, “excessively long copyright” protections, and financial regulations “providing implicit subsidies to a fortunate minority.”
Signaling that he now finds himself on common ground with stalwarts of the Democratic left like Elizabeth Warren and Joe Stiglitz, Summers adds, “Government needs to try to make sure everyone can get access to financial markets on an equal basis.”
Christopher Odinet (Southern) has posted Super-Liens to the Rescue? A Case Against Special Districts in Real Estate Finance (Washington and Lee Law Review) on SSRN. Here's the abstract:
In a time of limited resources and sluggish economic growth, competition between cities has become palpable, and the race for new investment often dictates the public agenda. To that end, the explosive growth of public-private partnerships between local governments and private investors has resulted in the creation of a myriad of special taxing districts, the purposes of which are limited only by the imagination. Of particular concern has been the growth of certain real estate development-related districts. Although first conceived to fund critical improvements where conventional credit was not available, in more recently years these special districts have been used to finance improvements for private developments in areas that do not suffer from economic distress in the least.
Of particular note, because special district assessments constitute super liens that are accorded priority on par with real property taxes, existing rights of secured parties are unjustly subordinated to the rights of the special district (the board of which is often controlled by the developer himself). This impact on priority has an adverse effect not only on the property rights of pre-existing lien creditors, but also on the overall availability of credit as lenders become more hesitant to make real estate-backed loans in special district areas (particularly low-income and blighted areas), and community lending as a whole suffers.
This Article argues for the reconsideration of the widespread delegation of municipal power to real estate-special districts by analyzing the private benefit-oriented nature of these public-private financing devices. This Article concludes by urging courts to adopt a flexible two-pronged test for the equitable subordination of special district liens. In adopting such a test not only are the property rights of private parties accorded needed protection, but also the legitimate use of real estate-related special district financing, including community lending more broadly, is preserved.
Anna Di Robilant (Boston University) has posted Populist Property Law on SSRN. Here's the abstract:
This article tells the story of the National Reformers’ Association and the National Farmers’ Alliance. These 19th century American movements represented the “little guys” – workers and farmers – and used their folk legal imagination to develop new property forms that would solve their most pressing needs by improving access to key economic resources. Their stories are worth remembering for three reasons: First, they cast light on the phenomenon of popular law making, an aspect of the history of property law that legal historians have neglected. Second, they call into question the traditional narrative of the development of American property law by indicating that the transition away from feudalism and towards free alienability and efficient use was not as smooth as is typically thought. Third, these stories are particularly relevant today, as they help to make sense of aspects of contemporary property law that have developed in response to America’s rising inequality and increasing middle-class insecurity.
Thursday, March 5, 2015
Penny Anderson on the feelings of insecurity that arise when tenure is insecure:
My bedroom has three dirty, off-white walls (magnolia – the blandness of choice for buy to let rentiers) while one (just one) wall is a vibrant, intrusive purple. I hate it. The previous tenant also left me with thick hair in all the plugholes, filthy surfaces, mould everywhere along with that one purple wall.
Of course, I could always paint it. [...] But why would I? I will have to pay for paint, take the time and effort and I don’t know how long I can stay. This alone keeps me awake at night, because any day now I face being given two months notice to leave my home. This is a certainty. I will have to leave. [...]
So I don’t know where I’ll live next. I don’t know what my home will be like. Or how long I will be permitted to remain in the building I will pay to call home. I will live there until I am moved on again. I don’t know if my next place will be furnished, a flat, ground or upper floor, shared or solitary. I have no choice, my options limited by cost. My next home could be furnished, forcing me to abandon excess possessions once more, and I have no idea if my next rentier will be kind, distant, helpful, intrusive, compassionate, off-hand or even cruel.
Antonia Layard (Bristol) & Jane Milling (Independent) have posted Creative Place-Making: Where Legal Geography Meets Legal Consciousness (Book Chapter) on SSRN. Here's the abstract:
The research asks why some participants engage with developers through formal planning processes or paint graffiti without permission, while others feel unable to act. It suggests that one reason for the differences is that in addition to distinct sets of resources, there are variations in ‘legal consciousness’ (Ewick & Silbey, 1998), differences in the ways in which participants’ social and cultural practices enact legality. This chapter uses work in legal consciousness to consider how ‘publics’ engage with landowners and authorities in very different ways, considering what this can mean for creative place-making.
Steven Eagle (George Mason) has posted On Engineering Urban Densification (Brigham-Kanner Property Rights Conference Journal) on SSRN. Here's the abstract:
City planning in America began as a Progressive Era exercise, intended to pre-serve property values and implicitly incorporate the social norms of officials and planners. Over time, rigid zoning was replaced by flexibility, accompanied by opaque bargaining between localities and developers. Still, even in vibrant large cities, homeowner preferences for low density largely prevailed over attempts to enhance agglomeration through increasing density. The effect is to reduce economic opportunity for individuals, and cities less prosperous.
One method of increasing agglomeration is the imposition of densification, utilizing the assembly of transient coalitions that could impose grand bargains between alderman and strong mayors. Expert planners would devise detailed quotas for desirable and undesirable uses in different parts of the city, and recipients of favorable zoning would receive regulatory property that is locked in place by procedural and constitutional requirements. Roderick Hills and David Schleicher advocate this approach in City Replanning.
This Article reviews the history of idealistic, and later pragmatic, comprehensive planning and zoning. It then analyzes the case for agglomeration, and how it might be obtained through density mandates. The Article subsequently reviews undesirable consequences of such mandates. It asserts that grand bargains attenuate democratic decisionmaking, significantly reinforce the perceived evils of the current system, and are apt to be ineffective.
Wednesday, March 4, 2015
John Infranca (Suffolk) has posted Housing Resource Bundles: Distributive Justice and Federal Low-Income Housing Policy (Richmond Law Review). Here's the abstract:
Only one in four eligible households receives some form of rental assistance from the federal government. Nonetheless, there is no time limit for the receipt of this assistance; individuals can continue to receive benefits as long as they satisfy eligibility requirements. In addition, individuals who do obtain assistance frequently have higher incomes than those denied it. Beyond simply providing housing, federal rental assistance is enlisted to serve a myriad of additional policy goals — including furthering economic integration and providing access to better neighborhoods — that can exacerbate inequities between those who receive benefits and those denied assistance. These broader objectives often increase the cost of housing assistance and reduce the number of households served.
Given increasingly limited resources and the growing demand for rental assistance, difficult decisions must be made regarding how to satisfy a range of conflicting programmatic goals. Although for at least four decades legal scholars, economists, public policy experts, and politicians have denounced the inequities in existing housing policy, no one has provided a detailed analysis of the specific ways in which this policy departs from norms of distributive justice and of how it might be made more equitable. This Article moves the conversation beyond simply decrying existing inequities and instead carefully analyzes federal housing policy in light of specific theories of distributive justice. Drawing on the philosophical literature, it evaluates the specifics of existing policies, and their distributional impacts, in light of five theories of distributive justice. It then proposes a new structure for federal rental assistance, which would allow recipients to choose among a set of “housing resource bundles.” This approach will not only satisfy the most salient understandings of distributive justice, but will also advance the concerns that underpin other distributive justice theories and allow federal housing policy to more effectively embrace a plurality of programmatic goals.
Stephen Miller (Idaho) has posted First Principles for Regulating the Sharing Economy on SSRN. Here's the abstract:
This Article posits ten first principles on which a regulatory response to the sharing economy must rest. Given the rapid differentiation in the sharing economy, the Article gives particular focus to the short-term rental market, typified by Airbnb, as one lens through which to illustrate these principles. The Article then turns to review existing regulatory responses to the sharing economy. Here again, the Article focuses on regulations related to the short-term rental market with a particular emphasis on the two strictest existing local government regulatory structures, which are those of San Francisco and Portland. The Article next proposes a response beyond such traditional regulatory strategies, which this article asserts are not well suited to regulating the sharing economy. Instead, this Article proposes a markets-based mechanism, transferable sharing rights, which is better suited to internalize externalities of the most daunting challenges in the short-term rental market. Finally, the Article examines the corporatization of the sharing movement and the implications for regulations as sharing evolves from a peer-to-peer enterprise to a place where established market participants seek to assert themselves in the sharing economy’s new domains.
Tuesday, March 3, 2015
Joe Singer's blog points us toward an easement case from Vermont:
The Vermont Supreme Court has adopted the rule promoted by the Restatement (Third) of Property (Servitudes), §4.8(3), allowing the owner of a servient estate to relocate an easement if this does not reduce the utility of the easement to the owner of the dominant estate. Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530 (Vt. 2014). The case concerned an underground easement for water lines.
The court also held that the dominant estate owner was entitled to build a housing complex and that this development did not exceed the scope of a right-of-way easement even though it had been originally used only by a church.
Kelly Edmiston (Federal Reserve Bank - Kansas City) has posted Low-Income Housing Tax Credit Developments and Neighborhood Property Conditions on SSRN. Here's the abstract:
Assisted housing has long been a contentious issue for cities and regions. On one hand, there is an acute need for affordable housing in low- and moderate-income communities. But the massing of public or otherwise subsidized housing in disadvantaged neighborhoods has given rise to concerns that “public housing” has led to the decay of these communities. The intention of this paper is to use analytical tools to evaluate the conventional wisdom that lower-income housing developments are somehow disadvantageous for the lower-income communities in which they generally are placed. The focus is on the evaluation of low-income housing tax credit (LIHTC) financed developments, as this is the typical way for developing low-income housing units today. Results suggest that while large new construction projects tend to diminish property conditions nearby, the effects of small new construction projects and larger rehabilitation projects generally are positive.
Lauren Henry (Yale - Information Society Project) has posted Privacy as Quasi-Property (Iowa Law Review) on SSRN. Here's the abstract:
Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of many. It is often thought that the reason for this is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is the more substantial hurdle. This article, Privacy as Quasi-Property, fills this gap in the literature.
Quasi-property is a relational entitlement to exclude, that is, the right to exclude specific actors from a resource given a specific event, a given type of behavior, or a given relationship between the actors. There is no freestanding right to exclude from a quasi-property interest; the right to exclude must be trigged by behaviors of the plaintiff and defendant. A defendant is identified based on a trigger arising from a relationship, action, or harm to plaintiff. The law communicates that an actor must not interfere with a quasi-property interest with an exclusionary signal that is independent of the resource. Prominent examples of doctrinal areas that employ the quasi-property model are information misappropriation and trade secret law.
I argue that quasi-property provides the essential model for assessing the interest held by a privacy claimant against a defendant, and whether it has been infringed. The quasi-property model can account for the four privacy torts first advanced by William Prosser and adopted as law in the vast majority of states, and liberate them from the ossification that have stunted their development and ability to adapt to modern conditions. What’s more, the approach has implications for developing privacy rules for enforcement by other actors, such as administrative agencies, and even in conceptualizing other areas of privacy law outside of tort law, such as Fourth Amendment jurisprudence.
Monday, March 2, 2015
An long article in Slate argues in the affirmative:
Race and transportation have long been intertwined, whether it be federally funded highways that plowed through, or isolated, minority neighborhoods; Rosa Parks and the Montgomery Bus Boycott; or segregated streetcars and trolleys. And there has been tremendous progress within the past century, particularly when Brown v. Board of Education struck down “separate but equal,” leading to the eventual desegregation of public transportation. In the 1990s, two pieces of legislation, the Intermodal Surface Transportation Efficiency Act and the Transportation Equity Act for the 21st Century, increased community involvement and awareness of civil rights issues in transportation planning. But discrimination, while certainly less overt, remains today.
Sometimes, as in Buffalo’s case, communities feel cut out of the decision-making process. Those in power make decisions about transportation planning, resulting in ill-planned bus routes, transportation more likely to benefit those with cars than those without, and bleak environmental costs. [...] Discrimination in transportation, quite often it’s more subtle today,” says Robert Bullard, dean of Texas Southern University’s school of public affairs, and a co-editor of Highway Robbery: Transportation Racism and New Routes to Equity. “We don’t have laws about posting signs for whites and coloreds. We don’t have laws segregating people on buses and trains ... [but] if you look at quality of service, efficiency of service, look at amenities attached to suburban rail versus inner-city bus lines, it’s like night and day.”
Michael Goodman (George Washington) has posted Taking Back Takings Claims: Why Congress Giving Just Compensation Jurisdiction to the Court of Federal Claims is Unconstitutional (Villanova Law Review) on SSRN. Here's the abstract:
Under current law, all large takings cases against the Federal government must be filed in the Court of Federal Claims, a special “legislative court” influenced by Congress and the President. When Congress created that entity, it included within the court’s jurisdiction a variety of types of cases in which citizens sue the Federal government for money damages. Unfortunately, Congress included takings claims within that bundle of claims. In doing so, Congress failed to realize that takings claims, because they derive directly from the Constitution, require different consideration than other claims against the government. Unlike the other claims that court considers, takings claims must be considered by judges of the federal judiciary, who enjoy all of the protections of Article III of the Constitution. This article reveals that while the Supreme Court has adopted various rationales to permit Congress to create legislative courts in some contexts, none of those rationales would permit the Court of Federal Claims to consider takings claims. That court’s current practice of considering takings claims is, therefore, unconstitutional.
Andrea Boyack (Washburn) has posted American Dream in Flux: The Endangered Right to Lease a Home (Real Property, Trust and Estate Law Journal) on SSRN. Here's the abstract:
Homeownership in the US is on the decline and the percentage of the population that rents their residence is growing. Renters present a distinct demographic compared to owners, and most of the more vulnerable segments of society rent their homes. But the law prohibits renting a home in some neighborhoods. Occasionally, zoning provisions hamper the ability of would-be tenants and would-be landlords to rent. More typically, however, community restrictive covenants are what block rentals. Zoning prohibitions on rentals have been attacked as violations of property rights. But in condominiums and other privately governed neighborhoods, segregation of renters from owner occupants has been continually upheld by the courts and has been consistently promoted as policy by government and quasi government entities. These policies and legal structures harm not only the rights of would-be landlords but also would-be tenants in such communities. Community rental restrictive covenants perpetuate broader social harms as well. It is time to rethink the desirability of these restrictions, even in the "private" context of neighborhood covenants.
Friday, February 27, 2015
Among the measures analyzed by Dong, mixed land uses did not impact values significantly, and density had a very minimal negative impact. Interestingly, school quality was also slightly negative, which might be explained by pre-bust bubble conditions in good districts. Homes in communities that were close to central Portland had the most price resilience. These were most often single-family homes located in walkable communities, with interconnected street networks, and sidewalks. Interestingly, being near downtown was important, but access to transit was mixed, and areas with only good bus service, without other New Urbanist amenities, showed less resilience.
However, the study suggests that synergistic effects exist between different dimensions of New Urbanist development. Neighborhoods that show not only smarter land use patterns and denser transit service but also good access to light rail transit and high-quality bike routes helped single-family homes sustain their values in the recession.
Gregory Stein (Tennessee) has posted What Will China Do When Land Use Rights Begin to Expire? The Evolution Toward Rule of Law in Real Estate on SSRN. Here's the abstract:
China’s recent economic success is largely based on the vitality of its real estate market. But China does not permit fee simple ownership; rather, property developers build on land they have the right to use for seventy years or less. The government has not yet answered three critical questions it soon will face: Does the holder of a land use right have the right to renew it? If so, will the government charge for that renewal? And if so, how much?
In predicting how the Chinese government will act, it is instructive to observe past government behavior. First, the government tries mightily to avoid social unrest and upheaval. Second, the government refrains from being the first party to act, preferring to endorse successful private sector experiments. Third, individual government officials and the government itself are important participants in the real estate market. If we assume these features will remain true, it becomes possible to predict how China will respond as large numbers of land use rights begins to approach their expiration dates.
This Article discusses the renewability of the Chinese land use right; describes the government’s options when land use rights expire; examines how the government has behaved in the past in an effort to forecast how it will answer these renewability questions; and places the resolution of these important issues in the broader context of the uneven movement toward rule of law in China.
Lisa Alexander (Wisconsin) has posted Occupying the Constitutional Right to Housing on SSRN. Here's the abstract:
The United States (U.S.) does not recognize a formal legal right to housing. Yet, the right to housing is alive in America. Using qualitative interviews and case studies, this article is the first to argue that recent American housing rights movements "such as: the Occupy Movements, the Take Back the Land movements, and the Home Defenders' League" give legal meaning to an American constitutional right to housing. These social movements represent the right to housing in American law when they occupy and retain vacant and real estate-owned homes; defend home owners and renters from illegal evictions and foreclosures; encourage municipalities to use eminent domain for principal reduction and property acquisition; and create micro-homes for the homeless. These movements' legal successes reformulate local property and land use laws, create legal arrangements that embody the human right to housing in American law, and associate the human right to housing with well-accepted American constitutional norms. In so doing, these movements occupy the legal meaning of an American constitutional right to housing, even in the absence of a formal legal right. This article contributes to popular constitutionalism scholarship by highlighting how private ordering and local law reforms can create constitutional meanings before those rights are associated with the actual text of the Constitution. It also enhances property scholarship by demonstrating how occupation can lead to more equitable property arrangements. This article also advances the law and social movement literature by outlining how the Internet and social media help social movements avoid some of the pitfalls of legal mobilization. Lastly, this article demonstrates new ways social movements can advance American social and economic rights in the technological Age.
Thursday, February 26, 2015
The third largest city in the world is starting to have water troubles. From the Guardian:
In Brazil, a land of immense natural riches and home to around 12% of the world’s fresh water, the very idea of a water shortage is hard for people to conceive of. Yet despite the state government’s prevarication over possible imminent rationing – consisting of two days of water followed by four days without – in reality, millions are now getting just a few hours of water per day, with many struggling with none at all for days on end.
The São Paulo water crisis, or “hydric collapse” as many are calling it, has left this city of 20 million teetering on the brink. Though domestic use accounts for only a fraction of the water consumed in the state of São Paulo – where extensive agriculture and industry places intense pressure on available resources – for paulistanos, as the city’s residents are called, learning to use water wisely is suddenly the most pressing need of all.
Christopher French (Penn State) has posted Insuring Landslides: America's Uninsured Natural Catastrophes (Iowa Law Review) on SSRN. Here's the abstract:
Landslides occur in all 50 states and cause approximately $3.5 billion in property damage annually. Yet, in America, “all risk” homeowners and commercial property insurance policies exclude coverage for landslides, and there is only limited availability of expensive, stand-alone “named peril” insurance policies that cover landslide losses. Consequently, the affected homeowners are often left financially devastated -- homeless with a mortgage to pay on an unsaleable piece of property.
This Article analyzes the problem of insuring landslide losses in America and proposes ways to help solve it. It describes both historical and recent landslide events. It discusses the insurance industry’s response to the problem of insuring landslides, including the theoretical justifications insurers historically have used to successfully exclude coverage for landslides -- adverse selection, moral hazard and correlated risks. It also considers how other countries such as Belgium, France, New Zealand, Norway, Romania, Switzerland, Iceland and Australia address the issue of insuring landslide losses. It concludes by offering two ways to transform the insurance market for landslide losses in America.
Tuesday, February 24, 2015
Last week Arkansas became the fifth state to adopt the Uniform Partition of Heirs Property Act.
For those that aren't familiar with Heirs Property, the term typically refers to land passed down through generations without a will and owned by descendants as tenants in common. The trouble with these arrangements is that anyone who purchases even the smallest fractional interest from one owner can file a partition action with a court and force a sale of the property. These sales often happen against the explicit wishes of many of the family members who have ownership shares in the property. Family members may end up forced off land where they have lived for generations and, all too often, the mandated sales fail to secure fair market value for the property.
To combat this problem the uniform act "provides a series of simple due process protections: notice, appraisal, right of first refusal, and if the other co-tenants choose not to exercise their right and a sale is required, a commercially reasonable sale supervised by the court to ensure all parties receive their fair share of the proceeds."
Connecticut, the District of Columbia, Hawaii and South Carolina are also considering the Act during 2015 legislative sessions.
A warm congratulations to property professor Thomas Mitchell of the University of Wisconsin Law School, who served as primary drafter of the act. And also to the activists in Arkansas who set up a website, created a Facebook page, and helped push the act through the legislature.