Monday, April 10, 2017
This Article offers a new theory of secured debt that aims to answer fundamental questions that have long puzzled bankruptcy scholars. Are security interests property rights, contract rights, or something else? Why do secured debt holders enjoy a priority right that, in bankruptcy, requires them to be paid in full before other debt holders recover anything? Should we care that secured credit creates distributional unfairness when companies cannot pay their debts? Because scholars have yet to provide a satisfactory account of security interests, these questions remain unanswered.
The Article argues that security interests are best understood as a form of “limited liability property.” Limited liability — the privilege of being legally shielded from liability that would normally apply — has long been considered the quintessential feature of equity interests. But limited liability is in fact a critical feature of security interests as well. When examined closely, security interests enable their holders to assert several privileges of ownership without bearing any of ownership’s concomitant burdens.
In seeking to explain security interests, the Article offers a comprehensive account of capital investment more generally, systematically examining the various interests held in corporate capital structures. Though critics have bemoaned the inequity associated with the priority right in bankruptcy — a secured debtholder can get all its assets back in the event of a bankruptcy while unsecured creditors like unpaid employees get nothing — this priority right is an inevitable consequence of recognizing security interests as a form of direct ownership. The real problem lies in the scope of secured debt holders’ limited liability protections. While equity holders enjoy limited liability, in return they are paid only after other claims in the event of insolvency. Secured lenders make no such tradeoff, and are thus arguably over-protected. Understanding security interests as limited liability property, then, offers a more elegant way to understand capital investment at the theoretical level while also helping us recognize when and where our system of secured debt needs reform.
There is a clear tension in the law between exercises of state police power in land-use regulation, including zoning laws, on the one hand, and takings under the Fifth Amendment on the other. Courts have struggled to find a dividing line between the two, but for their efforts we are left only with is a disjointed array of legal tests, each one as flawed as the next. Legal theorists, for their part, must shoulder some of the blame—no single theory can identify the point at which community need outweighs private property rights. Even well-developed theories thus fail to translate into practical application. But this Article is resolved to bridge that gap.
This Article presents a novel theory that provides a unified normative framework for evaluating government interference with private property. It seeks to identify the tipping point at which private property rights must give way to the needs of the community at large. This approach, which I refer to as Property’s Tipping Point, is a burden-shifting framework that accommodates competing theories of property. It builds on landmark Supreme Court cases to provide a unified standard for courts to apply in resolving cases of regulatory takings and exactions.
The approach presented in this Article has both a substantive and a procedural component. It develops two tests that work dynamically to identify the point where community need trumps owner autonomy: the indispensability of needs and the generality of action. The former requires that any government interference with private property is designed to promote community prosperity. The latter test—the generality of action—confines the government to the boundaries of the rule of law. It is only by passing these two tests that a government authority may reach Property’s Tipping Point.
Thursday, March 30, 2017
Paula A. Franzese (Seton Hall), Abott Gorin (Essex-Newark Legal Services), and David J. Guzik (Seton Hall-law student) have posted The Implied Warranty of Habitability Lives: Making Real the Promise of Landlord Tenant Reform (Rutgers Law Review) on SSRN. Here's the abstract:
The implied warranty of habitability is an implicit promise that every residential landlord makes to provide tenant with premises suitable for basic human dwelling. Tenants can assert breach of the warranty affirmatively, in a suit against landlord for providing substandard housing, but most often assert the breach defensively in the context of landlord’s eviction proceeding against tenant for non-payment of rent. Still, national data suggests that notwithstanding its placement in the firmament of modern landlord-tenant law, few tenants actually assert breach of the implied warranty of habitability, whether affirmatively or defensively. Even in housing markets fraught with substandard rental dwellings, the warranty is underutilized. This Article endeavors to examine that lapse in the context of nonpayment of rent proceedings initiated by landlords in Essex County, New Jersey. Significantly, of the more than 40,000 eviction proceedings brought there in 2014, only 80 tenants asserted breach of the implied warranty of habitability as a defense.
The authors used that field to learn more about the efficacy of the defense and, when raised successfully, its capacity to prompt the remediation of on-site defects. They found that notwithstanding its relative paucity of use, when invoked the implied warranty of habitability can and does work to bring needed repair and improvement to otherwise substandard dwellings. Indeed, in more than half of the cases surveyed the implied warranty of habitability was used successfully to cure housing code violations on leased premises. Moreover, irrespective of whether the defense succeeded or failed the majority of tenants who did assert it stated unequivocally that they would resort to it again if faced with significant on-site infirmities. The warranty deserves an important place in the stock of affirmative actions and defenses available to aggrieved tenants. The considerable challenge is to remove obstacles to its assertion, whether in the form of onerous rent deposit requirements, the absence of centralized databases for courts and rent subsidizing agencies to use when making decisions regarding rent subsidies for substandard premises, the subversive practice of “tenant blacklisting,” the scarcity of effective assistance of counsel or tenants’ lack of awareness of their basic rights.
What makes the work of these scholars particularly interesting is that it has resulted in actual legislation! As a result of this research, in 2017 the New Jersey legislature introduced Act 4610 (which codifies and enhances the use of breach of the implied warranty of habitability as a defense to certain eviction actions) and Act 4612 (which establishes the confidentiality of landlord-tenant court records and addresses adverse actions on rental applications). The authors and their research have been featured on All Things Considered on NPR/BBC/WNYC Radio and in The Star Ledger. Nice work!
Wednesday, March 15, 2017
In 2014, the Association of Law, Property, and Society (ALPS) conference was at the Peter A. Allard School of Law at the University of British Columbia and there was a plenary panel on teaching property law. [NOTE: Shameless plug for the 2017 ALPS Conference at the University of Michigan goes right here! You can still register!] Joe Singer (Harvard) was one of the participants on the plenary panel, and I distinctly recall Joe saying that every property class should include something on Indian law. Joe's property textbook (like many property textbooks) is true to his comment with a section on the forced seizures of property from American Indian nations.
Someone who understands better than anyone else the connection between Indian law and property law is Jessica Shoemaker (Nebraska). Jess and I have been friends for a number of years and she has taught me a good bit about American Indian law and the checkerboard, "emulsified," fractioned property rights held by American Indian tribes. Jess' latest article, Complexity's Shadow: American Indian Property, Sovereignty, and the Future, 115 Mich. L. Rev. 487 (2017) continues the scholarly tradition Jess has become known for.
[The article] does a great job detailing and explaining the web of rules and overlapping governance structures that contribute to the underdevelopment of Indian land. Although Complexity’s Shadow draws upon property theory and the work of scholars interested in legal complexity, the real strength of the piece is just how grounded it is in reservation land restrictions....
Complexity’s Shadow should become, along with Judith Royster’s earlier article, The Legacy of Allotment, one of the go-to sources for scholars interested in the problems of fractionated reservation land. But besides being an article destined to be cited in many footnotes, Complexity’s Shadow should also interest property scholars who ordinarily consider Indian property rights only in passing.…
Shoemaker’s observations of Indian poverty and land tenure complexity is much more nuanced than the kneejerk—make them like us—position of many non-Indians. At the very end of the article, Shoemaker switches from focusing on detailing the nature of top-down land use controls to calling for gradual change based on local experimentation.…
Though Shoemaker largely leaves to future scholars and local communities the work of showing what approaches can succeed in freeing reservation land from its current unworkable complexity, Complexity’s Shadow provides a great foundation for such work, which is crucial if Indian nations are to thrive.
Thanks, Jess, for your contributions!
Tuesday, March 14, 2017
As everyone knows, Murr v. St. Croix County will be heard by SCOTUS on March 20 at 10:00am. Georgetown Law is offering a special treat that afternoon: the oral advocates for the case--John Groen (counsel for Murrs), Richard Lazarus (Harvard, counsel for St. Croix County), and Misha Tseytlin (counsel for the state of Wisconsin)--will all be at Georgetown Law participating in a forum regarding the case. Peter Byrne (Georgetown) will be moderating the panel, which starts at 3:30pm in the Hart Auditorium. Anyone interested in attending may RSVP at https://goo.gl/forms/PWPx8rliE9mkRsFj2.
Monday, March 13, 2017
The 14th Australasian Property Law Teachers Conference will be held from 26-29 September 2017 at the Curtin Law School in Perth, Western Australia. The theme for this year's conference is "Beyond Sole Ownership."
In addition to the main conference there will also be a multi-disciplinary workshop on “sharing property" that will be held on 29th September.
(HT: Robin Paul Malloy @Syracuse)
Thursday, March 9, 2017
Incomplete takings are vital and extremely common. Yet, they present unique challenges that cannot be resolved by standard rules of eminent domain. In particular, incomplete, or partial, takings may result in the creation of suboptimal parcels, and even unusable and unmarketable ones. Additionally, partial takings create nettlesome assessment problems that do not arise when parcels are taken as a whole. Finally, incomplete takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current partial takings jurisprudence fails to resolve these problems, and, in some instances even exacerbates them.
In this Article, we offer an innovative mechanism that remediates the shortcomings of extant partial takings doctrines. Specifically, we propose that whenever the government engages in a partial taking, the affected property owner should be given the power to force the government to purchase the remainder (or, untaken part) of the lot at fair market value. Exercise of this power by the private owner would lead to the reunification of the land in its pre-taking form, while transferring title to the entire parcel to a new single owner, namely the government.
Implementation of our proposal would yield several important benefits: First, it would allow for the preservation of the current configuration of parcels, enabling them to remain highly usable and marketable. Second, it would lower the cost of determining compensation for private property owners and thereby of the adjudication process as a whole, in those cases in which private owners choose to exercise their entitlement to sell the remainder to the government. Third, it would significantly reduce the ability of the government to behave strategically and externalize costs on private property owners. Fourth, it would create opportunities for more efficient planning and land use by the government as the government would be free to re-parcel, develop and re-sell the parcels sold to it.
Wednesday, March 1, 2017
Just when you think you've seen everything property transactions have to offer . . . a company in Nevada called Wags Lending is offering credit products to help you rent-to-own your pet! Unforuntately, it appears that a number of the people engaging in these transactions are doing so completely in the dark - often believing they are purchasing Fluffy outright while they are in fact entering into a complicated lease-to-own contract. Check out this article in Bloomberg that explores the issue:
The Sabins had bought their new dog, Tucker, with financing offered at the pet store through a company called Wags Lending, which assigned the contract to an Oceanside, California-based firm that collects on consumer debt. But when Dawn tracked down a customer service rep at that firm, Monterey Financial Services Inc., she learned she didn’t own the dog after all.
“I asked them: ‘How in the heck can I owe $5,800 when I bought the dog for $2,400?’ They told me, ‘You’re not financing the dog, you’re leasing.’ ‘You mean to tell me I’m renting a dog?’ And they were like, ‘Yeah.’ ”
Without quite realizing it, the Sabins had agreed to make 34 monthly lease payments of $165.06, after which they had the right to buy the dog for about two months’ rent. Miss a payment, and the lender could take back the dog. If Tucker ran away or chased the proverbial fire truck all the way to doggy heaven, the Sabins would be on the hook for an early repayment charge. If they saw the lease through to the end, they would have paid the equivalent of more than 70 percent in annualized interest—nearly twice what most credit card lenders charge.
* * *
“There is just no way I should pay over $5000 for a $2000 puppy,” wrote one customer in an April 2014 complaint collected by the Federal Trade Commission after financing a Yorkshire terrier from a Kennesaw, Georgia, pet store with a lease from Wags Lending. (That complaint and the others that follow were directed at Monterey Financial by customers who had financed high-end pets through Wags Lending.) “The rep … told me the payments I had been making are rental [fees],” wrote another surprised lessee. “For a dog?? They are renting animals?? No way! Yes it's true!”
One cat lover described buying a Bengal kitten from a breeder in Jacksonville, Florida, at a sticker price of $1,700—then learning they were on the hook for 32 monthly payments of $129, or about $4,100. “They explained to me that not only was this not a loan but a lease in which I would either have to continue making these payments or return the animal,” the customer wrote in a November 2015 complaint. “Also this cat is ruining my credit score.”
The complaints raise a valid question: Why would anyone walk into a pet store to buy an animal and decide, instead, to lease?
Check out the full story here. There's been a lot written about the abuses surrounding installment land contracts (check out these articles in the NYT here and here). Also, the Uniform Law Commission is currently working on an installment land contract project and the CFPB has taken an interest in these types of predatory transactions as well. These pet financing contracts, although involving personal/movable property, raise similar consumer protection concerns. In any event, many of the contracts described in the article above lack many of the basic characteristics of a lease, as pointed out by Margot Saunders with the National Consumer Law Center. I think one of the most egregious parts of the article comes in the way of a quote from the CEO of the parent company of Wags Lending: "Wunderlich . . . hastens to argue that while he profits off high-cost lending, he’s also improving the lives of subprime borrowers." Another gem: 'We like niches where we’re dealing with emotional borrowers,' Wunderlich said."
There are all kinds of legal issues here to deal with. If this is a lease then what sort of legal duties does the lessor owe to the lessee? This looks more like just a loan disguised as a lease with some form of security attached - but with a huge interest rate included and some hidden fees and charges. What warranties does the lessor owe to the lessee as to the condition of the pet? If it's just a lease then obviously the lessor continues to own the pet throughout the duration of the term. Then, of course, there are a ton of issues with disclosure (as evidenced by some of the people interviewed in the story). The focus on subprime borrowers is particularly troubling . . .
Yet another reason to make sure you read the fine print before you sign on the dotted line . . .
Monday, February 27, 2017
It’s that time of year: time to beg, steal, or borrow for a few more boxes of Girl Scout cookies! This is a particularly special year of the Girl Scout Cookie as it's the 100th birthday of young girls selling cookies to raise money for their troops. Happy Birthday, Girl Scout Scout Cookies!
As you may recall, I am the troop leader for my daughter’s Brownie Troop. I am also the Cookie Mom for the troop, mainly because no one else was dumb enough wanted to do the job. For anyone out there with young daughters, who is thinking, “I love Girl Scout cookies, maybe I should be the cookie parent one day!” call me before you make that commitment. I won’t talk you out of doing it, but I will share some secrets I have found that make the experience easier. Here’s one of them.
Since February 18 when the cookies arrived at an airport hanger outside of New Orleans and I led a caravan of SUVs to pick them up, I have had stacks around my house like this:
And a few more over here:
And another one over here:
The cookies are taking over my house.
The reason we have so many Girl Scout cookies is because the cookies are great! Everyone loves these things. I walk into Tulane with a few boxes to deliver to my daughter’s customers (aka my colleagues) and I am mobbed by law students who want to know where they can buy cookies. I went to my daughter’s school last week and some middle school kids attacked me. People go nuts for these cookies.
That people love the cookies is great because that makes them easy to sell. And let’s be honest, that’s really what the cookies are about—making lots and lots of cold, hard cash. Sure, you think about the little girl in her Brownie vest, walking around with a wagon of cookies, and that’s an adorable image, but really, cookies are about one thing and one thing only: M-O-N-E-Y. The Girl Scouts aren’t terribly shy about this. The Girl Scout organization talks about how cookies teach girls “entrepreneurial skills” (aka how to make money). Some girls are super sellers, sometimes by a little creativity. There are cash rewards for troops based on how much you sell; the more boxes you sell, the more you get per box. You can now buy cookies by the case online. For $20, your troop can get a credit card swiper and make cookie selling a business of the twentieth century. With a little ingenuity and more computer skills than I have, your troop can create cookie-selling apps and move the troop into the twenty-first century. This is a full on commercial enterprise that rakes in a lot of moola.
Don’t believe me? Let me put this in real terms: Our troop has 27 third grade girls, i.e. eight and nine year old kids. Our troop sold more than $10,000 worth of cookies. Cookies are a serious business, emphasis on the word business.
Why am I writing about Girl Scout cookies on #PropertyLawProfBlog? Some of the cookie business is based on, you guessed it, property law! IP law to be specific. If you are out looking for your favorite Girl Scout cookie, you may notice that the names are slightly different than what you remember from childhood. Ask a Daisy in certain regions of the country for a box of Savannah Smiles and she won’t know what you are talking about. Why? One word: Trademark.
How trademark law gets wrapped up in Girl Scout cookies requires a little background on how Girl Scout cookies get made. Since 1936, Girl Scouts USA has been licensing bakers to make Girl Scout cookies in order to retain quality. (Prior to 1936, the girls made the cookies themselves. Here’s the original recipe.) The number of licensed bakers has fluctuated throughout the years, reaching as high as 29 licensed bakers in 1948 to as low as 2 licensed bakers, which is what we have today.
The two currently licensed bakers—ABC Bakers and Little Brownie Bakers—have divided up the country by region. Each region buys their cookies from only one baker. For example, being in New Orleans, we are part of the Louisiana East region and Louisiana East uses ABC Bakers exclusively, a change the region made just two years ago. That means our troop gets cookies only made by ABC Bakers. And that’s where trademark law pops up.
As bakers began cornering certain markets with their cookies, they also began trademarking the cookie names. Take Samoas (my personal favorite). Samoas are the coconut-caramel-chocolate cookie with the hole in the center. Samoas were introduced to consumers in 1974 by Little Brownie Bakers. In 1986, Little Brownie Bakers decided to register the cookie name with the United States Patent and Trademark Office. That was a wise move for Little Brownie Bakers because ABC Bakers rolled out its version of the same cookie in 1982 (though ABC Bakers didn’t register the trademark for it’s version of the cookie, the Caramel deLite until 2000).
Or take the Tagalong. The yummy peanut buttery goodness that is coated in chocolate. That was introduced to America in 1976 by Little Brownie Bakers, but not registered as a trademark until 1993. The ABC Bakers equivalent—Peanut Butter Patties—came out earlier but was registered later. Peanut Butter Patties were first sold in 1972 and the trademark was registered in 2000.
That Peanut Butter Patties and Caramel deLites were both registered in 2000 makes sense; ABC Bakers obviously got a lawyer who said the trademarks should be registered and ABC Bakers went on a registration spree. Why Little Brownie Bakers decided to register Samoas in 1986 but hold off on registering Tagalongs until 1993 is quite befuddling.
What’s most surprising about this story to me is why didn’t Girl Scouts USA claim ownership of these names at the outset and then have licensing agreements with the different bakers so that all of the bakers could use the same names (and the same recipes) and cut down on confusion? Girl Scouts USA has trademarked some of the cookies names, so it’s not like the thought hasn’t crossed their mind. Take Thin Mints, the best selling cookie nationwide. (And in our troop; 33% of our cookie sales were Thin Mints.) The trademark for Thin Mints was registered on August 9, 2011 to Girl Scouts USA. Both bakers have cookies named Thin Mints, and presumably both bakers are allowed to use the name because they have a licensing agreement with Girl Scouts USA. Trefoils became a registered trademark at the same time as Thin Mints, though interestingly only Little Brownie Bakers uses the name Trefoils. ABC Bakers calls the cookie Shortbread, which is certainly descriptive, though not particularly creative.
So there you have it. Property law really is everywhere, even in those boxes of Girl Scout cookies you now want to go buy. And if you can’t find any cookies from a Brownie near you, just let me know; we’ve got a few extra boxes laying around here.
Saturday, February 18, 2017
The Trump Presidency is off to a very lively (to put it mildly) start, and tax reform is one of the big issues. Last summer (2016) Speaker Paul Ryan put out a plan called “A Better Way” that set forth a number of significant changes to the U.S. tax code. Some of the more newsworthy aspects of the plan include reducing the number of individual tax brackets from the current seven (starting at 10 and going up to 39.6 percent) to three (12, 25, and 33 percent). Candidate Donald Trump also put out a plan during the campaign, which included cutting the tax brackets down to four, eliminating income taxes for individuals earning less than $25,000 per year (or $50,000 for married couples), and cutting the corporate rate to 15 percent (among other things).
So now that the election is over and Congress and the White House are controlled by Republicans, it’s time to think about how tax reform will affect property law!
Right now it looks like the Ryan plan (rather than Trump's) is the one being most seriously considered by Congress. Just this past Tuesday the speaker attended the weekly Senate Republican luncheon to drum up support for the plan. And while Ryan is having a bit of trouble advancing the cause (even among members of his own party), it’s worth taking a few minutes here at the blog to think about how aspects of the GOP blueprint could have an impact on the property law world.
So what does tax reform have to do with property law? Well, what’s being proposed in the Ryan plan actually has A LOT to do with how real estate is financed, acquired, and held in the U.S. First, the plan states that while it would keep the mortgage interest deduction, the benefit would be cut down in some way. But aside from the lack of details on how the mortgage interest deduction would work, there’s another aspect of the plan that hits at the issue from a different angle. Specifically, the plan calls for eliminating all other types of deductions other than the mortgage interest deduction and the charitable deduction. It also calls for increasing the standard deduction significantly. The standard deduction in 2016 was $6,300 for single individuals and $12,600 for married individuals filing jointly. Under the Ryan plan, the new (increased) standard deduction would be $12,000 for individuals and $24,000 for married individuals filing jointly. The plan aims to have more people use the standard deduction and thereby decrease the utility of various other deductions (like the mortgage interest deduction).
From my perspective this is not such a bad thing. While the mortgage interest deduction is often lauded as playing a huge role in increasing homeownership in America, it’s been shown over and over again to be a major boon to the wealthy and of very little utility to most Americans. Because the provision allows homeowners to deduct their mortgage interest payments from their taxes, it creates an incentive for purchasing more expensive homes. On the flip side, the tax code provides no comparable incentive for purchasing more affordable housing. Moreover, only about 25 percent of taxpayers even claim the deduction due to the fact that most are not eligible for the benefit. For those that do claim it, it’s mostly higher earners:
There are many other real estate-related aspects to the US tax system that are not directly discussed in the plan, but the blueprint does indicate some hostility toward continuing them. Part of the plan states:
“Numerous other exemptions, deductions, and credits for individuals riddle the tax code, making it less fair for those who cannot take advantage of such provisions and more complicated for everyone. . . This Blueprint will repeal these special-interest provisions to make the system simpler, fairer, and flatter for all families and individuals.”
The result of this language has suggested to some in the real estate community that programs such as the Low-Income Housing Tax Credit may be on the chopping block. This Reagan-era program (for all its incredible complexity – see here for a great explanation of the transactional structure by the US Office of the Comptroller) is credited by major real estate industry groups as being “the most successful affordable rental housing production program in U.S. history.” Others say the program is “an economic win for communities across the nation in need of additional affordable housing units.”
Another tax break that seemingly will be lost includes the exclusion from taxation for gain on what is called a 1031 "like-kind exchange." This is a transaction whereby the owner of real property engages in a sale and then uses the proceeds of the sale to purchase similar real estate. In doing so, any gain realized is not taxed. This is a powerful tax deferral tool for investment purposes because it allows you to change the form of your investment without having to cash out or pay taxes on the gain. Rather, you can roll the gain over and over from one piece of investment real estate to another and thereby avoided paying taxes until you actually sell for cash years later.
Lastly, the popular tax provision that excludes gain realized from the sale of a principal residence up to a certain amount ($250,000 if single, $500,000 if married) may also be lost. Numerous homeowners rely upon this provision to avoid tax liability when they sell their home for more than what they paid for it.
We’ll have to wait and see whether all or any of these changes come to fruition. Powerful interests have already started to line-up behind these tax provisions—no one wants to give up their special interest break, particularly those in the real estate and homeownership community. But then again, in this political climate who knows!? Stay tuned!
Thursday, February 16, 2017
Don't forget: the period to submit abstracts for the Association for Law, Property & Society (ALPS) ends on February 24, i.e. next Friday! Carve out some time this weekend to get your abstracts in.
The 8th annual meeting of ALPS will be at the University of Michigan in Ann Arbor, Michigan on May 19–20, 2017. All submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged.
To register and submit an abstract, click here. Please direct all inquires to ALPSConference2017@gmail.com.
Still not sure you want to come? Just check out these happy folks from last year's conference! You know you want to join Rebecca Hardin (Michigan), Ngai Pindell (UNLV), Lorna Fox O'Mahony (Essex), Robin Paul Malloy (Syracuse), Tim Mulvaney (Texas A&M), and Robin Hickey (Belfast) at Michigan this year!
Monday, February 13, 2017
In Washington state, Valentine's Day is the traditional day for hearts, Cupids, over-priced romantic dinners, and property tax bills. Yep, you read that correctly: apparently in Washington state, Valentine's Day is the day that property tax bills get mailed out. If that Hallmark card you received from your sweetheart didn't get you into a romantic mood, fear not, a big ole property tax bill is sure to do the trick!
Due to software upgrades in a few counties, though, the tax bills this year won't be mailed out until February 17 or February 24. That's good news for our lovebird friends out west. But it does make me wonder, who thought that Valentine's Day, of all days, was the best day to drop a tax bill in the mail?
Happy Valentine's Day to everyone from #PropertyLawProfBlog!
Friday, February 10, 2017
Thomas Mitchell (Texas A&M) sent in a request on behalf of the Uniform Law Commission that some of you followers of #PropertyLawProfBlog might be able to help with.
The Uniform Law Commission has a study committee that is examining potential reforms to property law regulating “installment land contracts.” So far the committee has developed a list of questions to survey practitioners in each state who are familiar with this area of the law. Based on the results of that survey, the committee will make a recommendation as to whether a uniform law is desirable and feasible. The committee’s next task is to identify potential survey recipients in each state. This is where we, a bunch of property law professors, come in.
Benjamin Orzeske, Chief Counsel for the ULC, would like to find out if there are any law professors who have done research in this area and who would be willing to take the survey or who would be willing to provide him with contact information of people in their state who might be qualified to take the survey (and who would be willing to do so). Additionally, Ben's happy to try to accommodate anyone who would be interested in serving on the committee as an observer. Note, the term "observer" is not a very good descriptive term as observers can, if they wish, participate in almost any way that an official member of the committee can participate (with a few exceptions).
If you have any interest in serving as an observer for the study committee, taking the survey, or identifying possible survey respondents, please contact Ben by e-mail at email@example.com or by telephone at (312) 450-6621.
Resistance is also the theme of Sarah Keenan's (Birbeck, University of London) book, Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-Create Spaces of Belonging and Propriety. Sarah's book "explores the relationship between space, subjectivity, and property in order to invert conventional socio-legal understandings of property." As Lorna Fox O'Mahony (University of Essex) wrote, Property Governance Through Resistance "offers an insightful analysis into how property rules prevent marginalised or outsider groups from developing a sense of belonging in places that are dominated by, and governed through, an insider norm."
So if you are looking for more resistance reading, check out Sarah's book to see how property laws may be re-conceived to help marginalized communities.
Saturday, February 4, 2017
The #PropertySchmooze is coming to an end with the keynote speaker, Lee Fennell (Chicago), who is presenting her work, Searching for Fair Housing.
Lee begins her paper by bringing up an asymmetry in housing: racial discrimination against homeseekers (which is illegal) versus racial discrimination by homeseekers (which is presumed to be "perfectly legal"). The common rationales for why discrimination by homeseekers is allowed is two-fold: (1) homeseekers do not have a big enough impact on the market and (2) the law should not impact homeseekers' decision making. Lee questions whether these are vaid rationales and whether the law has some role in curbing discrimination by homeseekers
As Lee notes, sorting the housing stock by race has happened for a long time. Individuals have long asked friends, neighbors, real estate agents, etc., what neighborhood is the best to live in, and race may come up in that conversation. Now there are websites that allow you to easily see what the racial make up is of any zip code, so discriminatory information is even more readily available.
Restricting someone from searching for houses based on race could be seen as restricting the homeseeker's autonomy. But, as Lee points out, homeseekers' autonomy is alreaday limited in part because home owners cannot choose their neighbors. We know from Shelley v. Kraemer, restrictive covenants cannot discriminate against individuals based on race, so a home owner cannot restrict who his neighbor is based on race, thus limiting the home owner's autonomy.
Lee then discusses the gap between the right to be free from discrimination and the duty not to discriminate. Lee calls the gap used by homeseekers the "search gap," referring to the discrimination largely of white individuals against black individuals when searching for houses. She cites numerous studies that demonstrate white individuals rank neighborhoods with high numbers of black home owners lower than white individuals rank neighborhoods with mostly white home owners.
So what to do? Section 1982 of the Civil Rights Act actually covers this to some extent. The section says "All citizens of the United States shall have the same right, in every State and Territoy, as enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Section 1982 might be applied to homeseekers because everyone has the right to seel property free from discrimination. Lee also suggests that we could impose liability for ads and assisted searches under the Fair Housing Act. Or we could use disparate impact as a mechanism for taking up the slack where we cannot, or will not, reach biased searches. And Lee suggests that we could affirmaively further fair housing in the search domain.
And with that, the #PropertySchmoozes comes to a close. Thanks Texas A&M, and specificlly Lisa Alexander and Thomas Mitchell, for hosting this great event!
Julie Forrester (SMU) began by sharing her work on real estate-related receivables, comparing the approach to using such rights as collateral under the American and Japanese systems. She noted that there is a legal disconnect between the transfer of a lender's right to payments under a mortgage note and the transfer of a landlord's right to payments under a real estate lease. Julie noted that some of the problems likely come from the fact that personal and real property are treated differently in the US. In the mortgage context, the note representing the loan is governed by the UCC while the mortgage on the real estate is governed by real property law. However in the real estate lease context, the lease is governed by real property law but the rents, once severed, are considered to be personal property. She notes that because Japan is a civil law jurisdiction where personal (movable) and real (immovable) property are treated under similar rules, Japanese property law has the potential to serve as a framework to reconcile some of the discrepancies in treatment of real estate-related receveiables underAmerican law.
Next, Sally Richardson (Tulane) gave a presented titled Ownership, Equity, and Development: A Comparative Taxonomy of Property Regimes, which examines the ways different legal systems approach competing rights in the same property. She began by asserting that in today’s market few, if any, enjoy sole and complete ownership of property. Whether through zoning, concurrent or future interests, restrictive covenants, or security rights, private property is rife with intra-party tensions due to these mixed, overlapping, and shared interests. Sally further argues that the law variously favors certain interest holders in the same property over others, all in accordance with specific policy choices about the best use of the property. To explore these different approaches, she studies the doctrines of servitudes, co-ownership, and life estates under four legal systems: under the English common law, the American common law, the French civil law, and the German civil law. Sally notes that by studying these concepts and the way the different systems balance the rights of multiple parties in the same property, one gains an insight into how the systems value property. Moreover, such an understanding will better equip lawmakers, scholars, and judges to analyze which aspects of another jurisdiction’s property law could be effectively incorporated into their own legal regime.
Great work, Sally and Julie!
Day 2 of the #PropertySchmooze has commenced, so let's get to blogging!
First up is Vanessa Casado Perez (Texas A&M) who is talking about something many of us deal with on a daily basis: parking! Parking is a huge issue in New Orleans, so I'm already excited about her paper Privatizing Public Parking: Unsharing Public Parking Spaces. As Vanessa tells us, in big cities, 106 days of your life are spent looking for parking and 30% of traffic is created by individuals looking for parking spaces. High demand plus scarce resources leads many cities to adopt a market solution. For example, there is the privatization of parking meters in Chicago. Or there is the app some cities use, Monkey Parking, which allows a person leaving a parking spot to sell the right to use the parking spot to another driver. Or there are variable pricing plans used in some cities, like San Francisco, where parking rates fluctate depending on demand. Vanessa is concerned about all of the market solutions because the public parking spots should, she argues, be held in public trust for the benefit of all, but these pricing mechanisms inherently weed a lot of people out. Further, Vanessa has concerns about private individuals profiting from using public parking spots. Thus, Vanessa's paper examines different frameworks we could use to solve the parking problem that abounds in many cities.
The second paper of the day is by Dave Fagundes (University of Houston) who is discussing Sharing, Property, and Happiness. Dave's paper comes from his interest in property skepticism (i.e. the idea that people are doing things with their property that we would not predict from the market) and his interest in current studies on people's happiness. By happiness, Dave is referring to one's subjective well being, measured by moment-to-moment affect in real time. With this measure of happiness, Dave then wants to know how can property make us happier, i.e. how can property give us greater moment-to-moment affects? Dave notes that it has been argued that there are three ways property makes us happier: property makes us happier when we give it to charity, when we use it as a site for community interaction, and sometimes, when we have less of it (see the minimalist movement). Dave then uses happiness to look at different areas of the law related to property and asks whether we are regulating things in the most optimal manner. For example, Dave uses happiness as a lens to look at the sharing economy, showing how the commercial exchanges that take place in the sharing economy might make us happier. Similarly he uses the happiness framework to examine our charitable donation laws, asking whether our tax deduction rules for charitable donations really optimizes happiness. Finally, Dave takes the minimalist movement, showing why everyone might be happier if they decreased their property levels, and then asks how can property law better facilitate the minimalist movement.
Third is Asmara Tekle (Thurgood Marshal). Asmara is presenting her paper Roll On, Cyclist: The Idaho Rule, Traffic Law, and the Quest to Incentivize Urban Cycling. The thought piece looks at how traffic laws can incentivize cycling as a mode of transportation in urban environments. The paper's thesis is that rules like the Idaho Rule, which legitimates the common cycling practice of treating stop signs as yield signs, have no negative impact on public safety while having a positive effect on encouraging people to cycle. Though the Idaho Rule has seemingly positive impacts, it has been adopted in only two states (Idaho, obviously, and Colorado), and many other states have considered adopting the Idaho Rule but have ultimately rejected it. Asmara's paper looks at the world of social norms for cycling and vehicles, as well as theories of vehicular integration between cyclists and cars and vehicular segregation, to explain why the Idaho Rule has not been adopted.
Last for the first panel is Kellen Zale (University of Houston). Kellen's talk is on her early work in progress, The Tenant's Right to Share, which seeks to develop a discussion on tenants' right to share the property they are renting and landlord consent provisions in residential leases. Traditional residential leases have relatively limited rights to share their propety without the written permission of the landlord, be it sharing through a sublease, sharing with a short-term visitor, or sharing through transferring the lease to another person. Landlords can deny permission unreasonably or arbitrarily. This rule for residential leases differs from the growing minority rule regarding commercial leases. In a growing minority of states, commercial landlords must have a reasonable reason to deny the commercial renter from sharing the property. Kellen's question is whether in the residential context we should reexamine our default rules regarding a landlord's ability to restrict a tenant's right to share.
Friday, February 3, 2017
First up is Stephen Clowney (Arkansas and former blogger here at the #PropertyLawProfBlog) who discussed his project titled Should Law Care About Rural Places? In his talk, he explored the decline of the rural areas of America, juxtaposing it with the economic factors that increase the prosperity of cities. These factors include labor pooling, the easy and cheaper transport of goods, and the flow of ideas. Steve then asks whether it would be possible to build a list of factors that might similarly justify a greater emphasis on the rural. He notes that three main points that have emerged in the literature for preservation of the rural include culturalism, national security, and economic growth. The first point is the notion that there is a cultural aspect to rural areas that justifies special preservation. However, Steve challenges this by noting that poor education levels and weak health indicators pervade the lives of those who live in rural areas. A second argument in favor of the rural is national security, under the theory that a country should be able to produce its own food during periods of war. Steve responds to this by stating that food independence might be similarly achieved through automation and could be done in more urban areas. Last is the argument that rural areas produce significant economic benefits for the country. However, Steve notes that people have higher debt loads in rural areas and most of the poorest counties in America are rural. After rejecting these prevailing arguments, he asserts that a better justification for the rural is that economic growth in rural areas has a more significant impact on those living in poverty than economic growth in urban areas. In order to help realize these benefits, he argues that there is a need to break up the size of the many megafarms that populate the rural landscape so that they can be broken up in smaller farms that would generate a larger middle class in rural areas. To do this he asserts that Congress should return to a more aggressive estate tax system that prevents such large transfers of wealth and subsequent consolidation.
Closing out the panel was Thomas Mitchell (Texas A&M) who spoke about his book chapter project on the different strategies that have been used over time to exploit African Americans in their aspirations to become homeowners or maintain homeownership. He specifically explores installment land contracts where black would-be homeowners, who were unable to obtain conventional financing, would enter into agreements with unscrupulous home sellers who would “lease to own” the property at an outrageous price and then, upon a missed payment, evict the individual and keep the profit. Another strategy was through the over-assessments of property taxes for African American homeowners, all in an effort to break up these communities and drive out black owners. Lastly, he spoke about the steering of black borrowers toward expensive financial products, including adjustable rate mortgages and loans with numerous fees. Thomas looks to use this work to explore the deeper phenomenon behind these practices in hopes of discerning an overarching way to work through these systemic issues on a larger scale.
Great panels and a very lively discussion. Time for dinner! See you tomorrow!
Panel three is up at the #PropertySchmooze! Time to talk adverse possession, mortgages, and the public trust doctrine.
John Lovett (Loyola) is the lead batter for panel three discussing his work, What We Talk About When We Talk About Adverse Possession: Part 1 (1881-1985). John's work looks at the history of adverse possession in the United States. In looking at the scholarship on adverse possession through the centuries, John finds there are five themes scholars have focused on: (1) what was adverse possession fundamentally--was it a statute of limitations or an affirmative means of acquiring property?, (2) what elements should be required for adverse possession?, (3) what was the social, legal, and institutional purpose of the doctrine, (4) how American adverse possesion law developed to be uniquely American, and (5) an attempt to influence courts analyzing adverse possession cases. With those themes in mind, John walked through the works of Holmes, Pollock, Maitland, Ballantine, Bordwell, Fuller, Walsh, Stoebuck, Callahan, Helmholz, and Cunningham, discussing each scholar's perspective on adverse possession. John focused on the scholarly debate on the doctrine, analyzing what each scholar said correctly and, in some cases, incorrectly. In doing so, John provided a historical perpsective on adverse possession, clearing the path for his next piece on modern adverse possession law.
Batting second is Chris Odinet (Southern), one of my co-bloggers here on #PropertyProfLawBlog. Chris is talking about his book project, Foreclosed: American Homeownership and the Mortgage Middlemen. Chris' book analyzes the relatively unregulated world of mortgage field services and their agents. Mortgage servicers (or who Chris calls the "mortgage middlemen") are the people who manage your mortgage on a day-to-day basis and, importanty for Chris' project, begin foreclosure proceedings if need be. Chris highlights the abuses that have occurred with mortgage servicers. He is particularly interested in the "break-in foreclosure" abuse, where a mortgage field service agent breaks into a mortgagee's home before any default takes place, turns off the utilities, clears out the home, and padlock the door. The purpose of the break-in foreclosure is to clear the property so it can be called abandoned and foreclosed on. Chris' book sheds light on these problems by sharing stories of homeowners whose rights have been impared by mortgage middlemen. He then proposes regulations for mortgage middlemen so as to tame the rogue industy practices.
Last batter for panel three is Erin Ryan (Florida State) who is talking about The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Ct. The case Erin is focused on concerns the public trust doctrine and Mono Lake, where the public trust doctrine and the prior appropriation doctrine butted heads. Mono Lake, which is located in central California near the California/Nevada border, was used to provide water to Los Angeles (yes--LA, which is about 350 miles south of Mono Lake). As one might expect, LA overused the lake, drying it up, injuring the brine shrimp that lived in the lake, thus killing the birds that ate the shrimp that lived in the lake. This all led to litigation that pitted the public trust doctrine against the prior appropriation doctrine. Ultimately the public trust doctrine won and the Mono Lake defenders and LA reached a copromise, so there was a happy ending for environmentalists, including for Erin who, as she told us, worked as a "grunt-level" range with the U.S. Forest Service at--you guessed it--Mono Lake.
First up is none other than the hostess of the Schmooze herself, Lisa Alexander (Texas A&M), talking about her paper, Bringing Home the Right to Housing. First, Lisa used her review of Matthew Desmond’s book, Evicted, as a springboard by explaining how his work provides a basis for highlighting how important the right to housing is in today’s post-crisis American economy. Using this observation, her paper asserts that our conception of basic human rights/needs and our conception of housing needs are greatly out of balance in the political discourse. Relatedly, Lisa noted the mismatch between the supply and demand of housing, pointing out that homeownership is at its lowest rate due to the high cost of housing and that affordable rental units chronically elude most Americans. Moreover, relative to the need for housing, subsidies to these individuals (vouchers, public housing, federal grants) are quite small and inadequate. Because of the diminished role that the federal government has been playing (and will likely continue in this fashion) in meeting the housing need, much of the responsibility will fall to cities and local governments. To that end, she asserts in this project that the right to housing, although not a legal right in the US, can serve as a useful normative framework for localities to use in devising plans for new housing arrangements that more effectively balance the rights of owners and non-owners. Moreover, Lisa explained that when local governments use their powers to legitimate arrangements that mimic the right to housing, they are realizing the benefits of the right to housing, even in the absence of it being an actual right. Lastly, she hopes that once local governments engage in this democratic experimentalism, that federal decision-makers will see the benefits and seek to advance a right to housing (and its benefits) more broadly. To more fully explore how local governments can do this she looks to legal devices such as declarations, resolutions, ordinances, conditional use permits, planned unit developments, building code amendments, impact assessments, and state laws exempting certain localities from building code requirements.
Next up is Mark Roark (Savannah Law School) whose paper Under-Propertied Persons builds on his prior work and explores the concept of property as creating insider-outsider relationships that have significant impacts on homelessness and poverty. He focuses on the two poll stars of the property discourse: waste and nuisance. Mark notes that when we talk about waste we think about autonomy and the ability to self-determine and build value. Nuisance, on the other hand, is spoken of in terms of expanding the boundaries of property and maintaining its value. He then explores these concepts through the lens of the environment and the architecture of public housing, looking to a number of specific locations including St. Louis and Chicago. Mark draws together the literature on how we speak about homelessness and poverty and gives it life through specific examples of how public housing is physically constructed and maintained. This includes a discussion of the stigma that becomes attached to those who live in public housing, which in turn prevents the residents from being more fully engaging in community building.
Last but certainly not least is Lynn Blais (Texas). Her paper, Disparate Impact as Evidence, looks to unpack the disparate impact theory of housing discrimination claims under the Fair Housing Act, particularly after Texas v. Inclusive Communities. She explains that although equal protection claims can generally overlap/intersect with disparate impact claims, the theory of disparate impact (from an historical perspective) is meant to be more expansive than a mere equal protection claim. Lynn does this by looking at how the disparate impact plays out in various different federal legal regimes aside from housing. She notes the difficulty in making out a disparate impact claim because of the struggle to obtain the necessary statistics. This usually results in these cases being dismissed as courts focus on the statistical aspect of the claim and less on the actual evidence of discrimination. Her goal in this piece is to push outward the idea of due process and fair housing. In doing so she hopes to push the Court toward better developing a more robust framework for making out an intentional discrimination case.
See you after lunch when we'll be back for panel #3!