Friday, April 13, 2018

Property Lawyer Gone Bad

It's not often that I can make quitclaim deeds look like a sexy topic in Property.  This semester in particular, the conversation about warranty of title (or lack thereof) dragged on for a good bit longer than I had planned.  As always happens, one student asked why anyone would transfer property via a quitclaim deed.  While I was explaining that the value of the interest an individual has in a tract of land might be less than the cost of determining the exact scope of that interest, I could see the glaze over my students' eyes growing.  I was saved by the bell, but fretted returning the next day to a bored group of students.  

That is when this news story hit the press.  

A lawyer from near New Orleans wanted to make a buck and what better way to do it than through a few quitclaim deeds.  More than a decade ago, the property lawyer decided to write up some false quitclaim deeds on a few properties that appeared to be abandoned.  The lawyer put his business partner's name in as the seller, the lawyer's name in as the buyer, put the deed in valid form under Louisiana, and presto!  The quitclaim deeds were filed in the public records and a couple of years later, the lawyer aka alleged buyer of the abandoned properties sold the properties to unsuspecting third parties.  Making up quitclaim deeds and selling them off became like going to the ATM.  

Fast forward to the present day when those unsuspecting third party buyers resell the property to new unsuspecting third parties who are unable to get clean title to the properties and the gig is up.  Louisiana has a notably long period for adverse possession (or acquisitive prescription as it is referred to in this civil law jurisdiction), so the new buyers can't be saved by adverse possession.  The original attorney re-enters the scene and files a defamation lawsuit against all of the buyers of the property.  Why?  Because the buyers of the property have been asserting that the lawyer made the original sin in this whole transaction.  To top it all off, the lawyer has a bizarre coffee shop meeting with the buyers he is suing for defamation.  During the coffee shop meeting, the lawyer does a time warp to the 1990s by literally giving the buyers an Ace Ventura loser sign.  (Seriously.  Read the story.  The loser part is even included.)

Needless to say, the lawyer involved is in a heap of trouble, facing possible disbarment.  And the buyers aren't much better off, at least financially.  But my Property class, I am happy to say, is now wide awake and totally enthralled in quitclaim deeds.  

April 13, 2018 | Permalink | Comments (0)

Tuesday, April 10, 2018

New Book on Property and Human Flourishing by Alexander

PropandHumFlourGregory Alexander's (Cornell) latest book, Property and Human Flourishing (Oxford University Press), just hit the shelves.  The book continues Greg's scholarship on progressive property by offering an alternative way of understanding the moral issues of private ownership, namely that human flourishing is property's moral foundation.  As Greg has done in previous articles, he develops a theory that connects ownership and human flourishing with obligations.  Greg asserts in the book that "[o]wners have obligations to members of the communities that enabled the owners to live flourishing lives by cultivating in their community members certain capabilities that are essential to leading a well-lived life. These obligations are rooted in the interdependence that exists between owners and their community members, and inherent in the human condition."  Moreover, the book focuses on practical matters by discussing the implications for a wide variety of property issues including, but not limited to, expropriation, eviction, mortgage foreclosure, and homelessness.  

This past January, Greg visited Tulane to give a faculty workshop, and I had the privilege of discussing with Greg Chapter Eight of his new book, titled "Of Buildings, Art, and Sperm: The Right to Destroy and the Duty to Preserve."  In this chapter, Greg sought to reframe the discussion on the right to destroy in the context of human flourishing.  Specifically, Greg examined three types of property where destruction (and the legal fallout thereafter) arises with some frequency:  historic preservation, art, and embryos.  My take away from reading the chapter was that regardless if one agrees or disagrees with how the Aristotelian notion of human flourishing is being applied to property law, Greg's writing challenges our basic thinking about property law and, more importantly, the goals that should underpin our property doctrines.  As Hanoch Dagan (Tel-Aviv University) said about Property and Human Flourishing, the book "offers a progressive alternative to the dominant libertarian and welfarist conceptions of property. This is a major work, providing a comprehensive defense and a nuanced refinement of Alexander's innovative human flourishing theory of property."

Congratulations, Greg, on a great new piece of property law scholarship!


April 10, 2018 | Permalink | Comments (0)

Monday, April 9, 2018

Professors' Corner: Evictions and Tenant Blacklisting


A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity


Professor Paula Franzese, Peter W. Rodino Professor of Law, Seton Hall Law


Professor James C. Durham, University of Dayton School of Law

Every day across the United States countless residential tenants face the prospect of eviction. Tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on damning registries collected and maintained by "tenant reporting services." Tenants whose names appear on these so-called "blacklists" are denied future renting opportunities, stigmatized and excluded from the promise of fair housing. To compound the problem, the landlord-tenant laws, meant to be tenant-protective, exacerbate the crisis in housing displacement. An empirical study that that I recently completed revealed that of the 40,000 residential eviction actions brought in one county in New Jersey in one year, only 80 had tenants asserting as a defense to non-payment of rent landlord's breach of the implied warranty of habitability. This no matter the significant reported instances of derelict and grossly substandard rental housing known to exist within that same county.

Landlord-tenant laws, as currently constituted and enforced, pose formidable bars to tenant enforcement of what we presume to be assured rights. This webinar will examine three of those impediments: 1.) the rent deposit requirement, 2.) tenant blacklisting and 3.) the absence of counsel for tenants facing eviction. Approximately 90 percent of landlords have legal counsel while 90 percent of tenants do not. Cities like New York and San Francisco have now implemented programs to provide counsel to low-income tenants. I am at work now on the promulgation of a similar program for the city of Newark.

Register now for this FREE program and join us every second Tuesday of each month for a discussion of these and other current issues.  (The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for this program).

April 9, 2018 | Permalink | Comments (0)

Wednesday, April 4, 2018

CFP: Regulatory Issues in Property Law

CCPL Poster

The Cambridge Center for Property Law is encouraging and accepting submissions on any contemporary subject relating to land and property law from academics and practitioners from around the world for their upcoming conference on Regulatory Issues in Property Law on May 25-26, 2018.  Areas that are of particular interest include planning law, housing law, and the relationship  between property law and human rights.

Submissions should include an abstract of no more than 200 words, including: (1) the name of the submitting author and their institution or organisation and (2) their contact details.  Abstracts may be emailed to Douglas Maxwell (dskm2 at  The deadline for submissions is Wednesday, April 11 at 6:00 PM.  Places are limited so send in your abstracts ASAP!  

For more information, download Cambridge University Property Law 2018 Brochure.

April 4, 2018 | Permalink | Comments (0)

Monday, March 19, 2018

NEW BOOK: Property Rights and Settlement in the Negev Region

Emptied_landsAlexandre Kedar (University of Haifa), Ahmad Amara (Van Leer Jerusalem Institute), and Oren Yiftachel (Ben-Gurion University) have published Emptied Lands: A Legal Geography of Bedouin Rights in the Negev (Stanford University Press 2018). Here's a summary of the project

Emptied Lands investigates the protracted legal, planning, and territorial conflict between the settler Israeli state and indigenous Bedouin citizens over traditional lands in southern Israel/Palestine. The authors place this dispute in historical, legal, geographical, and international-comparative perspectives, providing the first legal geographic analysis of the “dead Negev doctrine” used by Israel to dispossess and forcefully displace Bedouin inhabitants in order to Judaize the region. The authors reveal that through manipulative use of Ottoman, British and Israeli laws, the state has constructed its own version of terra nullius. Yet, the indigenous property and settlement system still functions, creating an ongoing resistance to the Jewish state. Emptied Lands critically examines several key land claims, court rulings, planning policies and development strategies, offering alternative local, regional, and international routes for justice.

Click here for purchase information (receive a 20% discount when you use the code "EMPTIED").




March 19, 2018 in Books | Permalink | Comments (0)

Monday, March 12, 2018

PROFESSORS' CORNER: The Uniform Directed Trust Act


The Recently Approved Uniform Directed Trust Act: A View from the Chair and Reporter


John D. Morley, Professor of Law, Yale Law School

Robert H. Sitkoff, John L. Gray Professor of Law, Harvard Law School


David English, University of Missouri

Program Description
Across the centuries, the law of trusts evolved on the assumption that full power to administer a trust would belong to a trustee. A directed trust departs from this tradition by granting a power over a trust to a person who is not a trustee. The fundamental policy question arising from the emergence of directed trusts is how the law of trusteeship should be divided among a directed trustee and trust director. The Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), which provides clear, practical, and comprehensive solutions to all of the major legal difficulties in a directed trust. At the same time, the UDTA offers a host of technical innovations that dramatically improve on existing directed trust statutes, and that point to a variety of drafting practices for directed trusts that could be improved in all states. In this session, Professors Robert Sitkoff (Harvard) and John Morley (Yale), respectively the Chair and the Reporter for the UDTA drafting committee, will discuss the UDTA and what it means for directed trust practice.

Register now for this FREE program and join us every second Tuesday of each month for a discussion of these and other current issues.  (The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for this program).

March 12, 2018 | Permalink | Comments (0)

Friday, March 9, 2018

Rossi and Serkin on Using Land Use to Police Energy Externalities

Jim Rossi (Vanderbilt) and Chris Serkin (Vanderbilt) have posted Energy Exactions (Cornell Law Review) on SSRN. Here's the abstract:

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create significant externalities for the power grid and for energy resources.

This Article proposes a novel reform to land use and energy law: “energy exactions”—understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions would force developers to internalize the costs of growth on the energy grid, generate important information about community energy needs and their externalities, decentralize risk taking, promote technological change in new sources of power supply, and stimulate useful forms of regulatory competition between local communities and state utility regulators. In the process, they would induce energy conservation in the development of new residential and commercial buildings.

The Article defends the implementation of energy exactions by local governments. It then analyzes the potential legal hurdles energy exactions face, including their authorization, preemption by state utility laws, and implications under the Takings Clause of the U.S. Constitution. Energy exactions provide local governments a unique, pragmatic and valuable tool to integrate community values into energy grid planning, promote demand reduction, and enable new investments in low-carbon energy infrastructure.

March 9, 2018 | Permalink | Comments (0)

Tuesday, March 6, 2018

NEW BOOK: Saxer and Rosenbloom on Economic, Environmental, and Social Systems

SaxerShelley Ross Saxer (Pepperdine) and Jonathan Rosenbloom (Drake) just finished a book titled Social-Ecological Resilience and Sustainability (Aspen Coursebook Series). Great work to these two! Check it out below:

Social-Ecological Resilience and Sustainability by Shelley Ross Saxer and Jonathan Rosenbloom is designed to help students understand and address new, changing, and complex economic, environmental, and social systems. This book introduces resilience and sustainability as analytical frameworks and illustrates how these concepts apply in various contexts: water, food, shelter/land use, energy, natural resources, pollution, disaster law, and climate change. The first two chapters (Part I) provide students with a conceptual foundation to explore the interdisciplinary nature of resilience and sustainability and the meanings of, complexities embedded in, and the overlap and differences between these frameworks. Each of the remaining eight chapters (Part II) views resilience and sustainability in a specific law and policy context. Strategically placed throughout Part II, the authors describe eight useful tools — “Strategies to Facilitate Implementation”—to help identify, assess, integrate, or utilize resilience and sustainability as analytical frameworks.

Key Features:

  • A two-part approach that first provides students with a conceptual foundation and then allows students to view resilience and sustainability in eight law and policy contexts (described above)
  • Numerous graphics throughout to illustrate concepts, depict events described, and otherwise enliven the content
  • Case studies that examine human decisions that led to unsustainable and non-resilient systems and societies
  • New and innovative ways to explain complex systems and in turn rethink traditional notions of law and policy

March 6, 2018 | Permalink | Comments (0)

Wednesday, February 28, 2018

CFP: Property Rights and Human Rights: New Possibilities in an Age of Inequality


Monash University Law Chambers, Melbourne, Australia: August 9-10 2018

Call for Papers 

The Monash University Centre for Commercial Law and Regulatory Studies, and the Castan Centre for Human Rights Law, are hosting a conference on Property Rights and Human Rights: New Possibilities in an Age of Inequality on August 9-10, 2018.

The debate on property rights and human rights has renewed relevance as a result of global inequality, mass movements of people, and modern forms of slavery. While the underlying issue remains tensions between the distributional consequences of property and property as a source of freedom from interference, the context has shifted from protection against arbitrary state takings to the emancipatory possibilities (and limitations) of property for people often excluded by the state, including refugees and the internally displaced, ethnic minorities and indigenous peoples, victims of human trafficking, farmers and forest-dwellers, and households subject to disability or extreme poverty.

Recent scholarly responses to the new contexts of property have moved from libertarian conceptions, which focus on safeguards against the state, to progressive accounts that incorporate social obligations, and respect for interpersonal relationships, into the definition of property itself. A common thread for progressive accounts is the re-emergence of natural law conceptions, which bypass the state as a source of real or intellectual property rights, and re-configure property to enhance compatibility with human rights, including international human rights law. However, residual issues remain as to competing “essentialist” perspectives on property law, including the status of private rights to exclude, and the role of the state as a source of freehold or monopoly rights. This conference explores the new possibilities of property rights and human rights in an age of inequality with reference to the following topics:

  • Property and distributive justice.
  • Property, sovereignty and poverty.
  • Property and human trafficking.
  • Property, disability and discrimination.
  • Property and indigeneity.
  • Land grabs and international human rights law.

Confirmed speakers include

  • Gregory Alexander, A. Robert Noll Professor of Law, Cornell University;
  • Robin Paul Malloy, E.I. White Chair and Distinguished Professor of Law, Syracuse University; and
  • Hanoch Dagan, Stewart and Judy Colton Professor of Legal Theory and Innovation, Tel-Aviv University.

Important Dates and Details

Deadline for Abstracts: 20 March 2018

Submit abstract here.

Announcement of Accepted Abstracts: 30 March 2018

Deadline for Full Text Papers: 15 July 2018

Dates of Conference: 9-10 August 2018

Refer to the conference website for more information and to register for the conference 


  • Early registration $200 AUD (closes30 March 2018.)
  • Full registration rate $250AUD (closes 15th July, 2018)
  • Students (JD, PhD, SJD or other program) is $80AUD (closes 15th July, 2018).

February 28, 2018 | Permalink | Comments (0)

Tuesday, February 27, 2018

Mulvaney on Non-Enforcement and the Takings Clause

Mulvaney_tim2Tim Mulvaney (Texas A&M) has posted Non-Enforcement Takings (Boston College Law Review) on SSRN. Here's the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to the Takings Clause’s constitutional remedy. Rather, it simply suggests that courts should resist the temptation to formulaically and categorically prohibit non-enforcement takings claims in favor of assessing those claims on the merits.

February 27, 2018 | Permalink | Comments (0)

Saturday, February 10, 2018

NEW BOOK: Land Registration Law Reform in England and Wales

9781509906031There's a new book out by Hart Publishing and edited by Amy Goymour, Stephen Watterson, and Martin Dixon titled New Perspectives on Land Registration. Judging from the table of contents, the work looks like quite a fascinating read--particularly for those interested in the role that information and registration play in the allocation of property rights. Here's a short summary of the title:

The Land Registration Act 2002 has been in force for almost fifteen years. When enacted, the legislation, which replaced the Land Registration Act 1925, was intended to offer a clear and lasting framework for the registration of title to land in England and Wales. However, perhaps confounding the hopes of its drafters, the legislation's interpretation and application has since generated many unanticipated problems which demand attention.

In this book's twenty chapters, leading land law scholars, Law Commissioners past and present, judges, and Registry lawyers unpick key technical controversies, and expose underlying theoretical and policy concerns. Core issues addressed in these chapters include: the legitimate ambitions of registration regimes; the nature and security of title afforded by registration; the resolution of priority disputes affecting registered titles; the relationship between the general law and the registration regime; and new challenges presented by modern technological developments.

And here's the table of contents:


A (Former) Law Reformer's Perspective: Reforming the LRA 2002-Catalysts and Questions
Elizabeth Cooke
2. The Land Registry's Perspective: The Practical Challenges of Land Registration
John Pownall and Richard Hill
3. The Land Registration Jurisdiction: An Analysis of the First Twelve Years
Edward Cousins
4. A Broader Development Perspective: Economic and Political Drivers of Worldwide Land Registration Reform
Pamela O'Connor


5. Adverse Possession Under the LRA 2002
Owen Rhys
6. The Continuing Relevance of Relativity of Title Under the Land Registration Act 2002
Amy Goymour and Robin Hickey
7. Guaranteed Title: No Title, Guaranteed
Emma Lees
8. Can Rectification be Retrospective?
Charles Harpum
9. Assessing Rectifi cation and Indemnity: After Gold Harp and Swift 1st
Roger Smith
10. De-throning King Midas: The New Law of Land Registration in Scotland
Kenneth GC Reid
11. Lack of Proper Care
Simon Cooper
12. Reforming the Indemnity Scheme
Nicholas Hopkins
13. Priority Contests Involving Registered Titles
Martin Dixon
14. Subrogation, Priority Disputes and Rectification: Mapping a Route Through the Thicket
Stephen Watterson
15. A Tale of Three Promises: Setting the Scene
Stephen Watterson and Amy Goymour
16. A Tale of Three Promises: (1) The Title Promise
Stephen Watterson and Amy Goymour
17. A Tale of Three Promises: (2) The Priority Promise
Stephen Watterson and Amy Goymour
18. A Tale of Three Promises: (3) The Empowerment Promise
Stephen Watterson and Amy Goymour
19. Lessons from Scottish Land Registration Reform: Changes Under the Bonnet
Emma Waring
20. Automating State Guarantee of Title Systems: System Design and Possible Outcomes-Australasian Thoughts
Rod Thomas, Rouhshi Low and Lynden Griggs

February 10, 2018 | Permalink | Comments (0)

Monday, February 5, 2018

Kreiczer-Levy on the Sharing Economy

ShellyShelly Kreiczer-Levy (College of Law & Business: Ramat-Gan) has posted Share, Own, Access (Yale Law & Policy Review) on SSRN. Here's the abstract:

Millennials are losing interest in ownership. They prefer to access property when needed on a casual, short-term basis. Prompted by the sharing economy, online platforms, and ethical consumerism, access presents a radical alternative to established property forms. This type of property use is popular among younger, technology-savvy generations. It prioritizes use, flexibility, and mobility over the control, stability, and attachment that is associated with traditional property forms. Despite its recent prominence, access has remained surprisingly undertheorized, especially from a property perspective. This Article fleshes out the normative values and the concerns ingrained in this emerging property form. In addition, it critically evaluates the legal and regulatory response to access. It argues that the law continues to steer users towards ownership or other forms of long-term possession, significantly limiting the option of access. Accordingly, it calls for reevaluating insurance, tax, zoning, and anti-discrimination laws.

February 5, 2018 | Permalink | Comments (0)

Sunday, February 4, 2018

JOB ANNOUNCEMENT: Two Positions with NYU's Furman Center


Courtesy of John Infranca (Suffolk), please spread the word about these two exciting opportunities available at New York University's Furman Center for Real Estate and Urban Policy:

NYU Furman Center (New York, NY)


The Furman Center for Real Estate and Urban Policy at New York University invites applications for a post-graduate legal fellowship. The Furman Center, jointly housed at NYU’s School of Law and its Wagner Graduate School of Public Service, is a leading academic research center devoted to the public policy aspects of land use, real estate development, and housing. The Furman Center’s law fellowships are designed for promising legal scholars with a strong interest in housing, local government, real estate, or land use law. The Fellow’s time is shared equally between independent research on topics of his or her choice in preparation to enter the academic job market, and Furman Center research projects, conducted jointly with faculty members, graduate students, and staff. In recent years, legal fellows have worked on projects addressing the legal impediments to the development of micro and accessory dwelling units in New York and other cities; an empirical and legal analysis of the use of transferable development rights in New York City; the economics and legal issues surrounding mandatory inclusionary zoning; and a number of projects addressing fair housing requirements. The Law Fellow is invited to participate in faculty workshops, colloquia, and other scholarly forums at the NYU School of Law. This two-year fellowship typically begins summer/fall. The position comes with a salary and a generous array of benefits, which include medical, dental and vision.  Further information regarding benefits can be found here: Note that this position is considered a Research Scholar at NYU School of Law.

Qualifications:  A J.D. degree, superior academic achievement, excellent writing skills, initiative, and a demonstrated interest in and commitment to scholarship are required.

Applicants should submit a cover letter, curriculum vitae, scholarly writing sample, law school transcripts (unofficial copies are acceptable), and the names and contact information of 3 references. Send application materials and questions to Please include “Legal Research Fellowship” in the subject line. Applications will be given consideration until the position is filled. Review of applications will begin immediately and will be evaluated on a rolling basis. Only candidates of interest will be contacted.

EOE/AA/Minorities/Females/Vet/Disabled/Sexual Orientation/Gender Identity.

NYU Furman Center (New York, NY)


The Policy Director leads the effort to link the NYU Furman Center’s research with policy-relevant issues, ongoing public debates, and key stakeholders. He or she also serves as a key point of contact for policymakers and other stakeholders who rely on the Center’s work. The Policy Director serves as a member of the NYU Furman Center’s leadership team.

Primary Responsibilities:

Research Development and Management

  • Identify and monitor pressing policy discussions and debates--in New York City and nationally--to help shape the NYU Furman Center’s research agenda on affordable housing and urban policy issues.
  • Write and edit NYU Furman Center reports, briefs, presentations, talking points, and other products focused on policy analysis and reform.
  • Translate academic research--including the Center’s legal, data, and quantitative analysis--into materials accessible for non-academic audiences.
  • Serve as project manager for select research and policy projects.
  • Supervise and mentor policy staff and/or graduate student research assistants focused on the Center’s policy projects.

External Relations

  • Help to elevate the profile of the NYU Furman Center as a leader in the housing policy field.
  • Build and maintain relationships with public officials, private-sector stakeholders, and community groups, and solicit feedback to inform future research and policy work.
  • Oversee the planning and execution of the Center’s key events, including policy breakfasts, webinar briefings, symposia, and roundtables.
  • Represent the NYU Furman Center as a public-facing spokesperson for panels, presentations, and in the media.
  • Participate in the development of research proposals and fundraising strategy in coordination with Directors.

Qualifications:  A J.D., master’s degree in Public Policy/Administration, or an advanced degree in an equivalent field. Minimum of five years of relevant experience preferred, including management experience and a concentration in at least one of the following areas: urban policy, affordable housing, land use, or real estate. Strong writing and communication skills and ability to present quantitative findings are required. The candidate should also have strong organizational, analytical, and project-management abilities; and be comfortable working on a team. Knowledge of federal, state, and municipal housing programs or land use strongly preferred.

The position comes with a salary and a generous array of benefits, which include medical, dental, and vision. Further information regarding benefits can be found here:

To Apply:  Applicants should submit a cover letter, resume, writing sample, law/grad school transcripts (unofficial copies are acceptable), and list of 3 references. Send application materials and questions to Please include “Policy Director Position” in the subject line. Review of applications will begin immediately. Only candidates of interest will be contacted.

EOE/AA/Minorities/Females/Vet/Disabled/Sexual Orientation/Gender Identity.

February 4, 2018 | Permalink | Comments (0)

Wednesday, January 31, 2018

Mandelker on Land-Use and PUDs

Mandlekerd4Daniel Mandelker (Washington University) has posted New Perspectives on Planned Unit Developments (ABA Journal of Real Property, Trust, and Estate Law) on SSRN. Here's the abstract:

Planned unit developments, also called planned communities, are a major development type. Originally cluster housing projects with common open space, they can be planned today as infill in downtown areas or as a major master-planned community. They require discretionary review, are often dominant in the zoning process, and present a challenge to the zoning system. A threshold question is how municipalities should zone for planned unit developments, and this Article discusses conditional use, base zone, and rezoning alternatives.

This Article next discusses the zoning review process for these developments, which must operate fairly and produce acceptable decisions. Alternatives that can avoid or supplement discretionary review are considered next, and this Article concludes with a discussion of affordable housing as a social responsibility.

January 31, 2018 | Permalink | Comments (0)

Tuesday, January 30, 2018

REAL PROPERTY SCHMOOZE @TEXAS A&M: Bridging the Urban Versus Rural Divide


It's that time of year again: the second annual Real Property Schmooze at the Texas A&M University School of Law. Check out the announcement below (courtesy of friend-of-the-blog Lisa Alexander):

The flagship event of the Program in Real Estate and Community Development Law at Texas A&M University School of Law, the Real Property Law Schmooze, is an annual event which affords property law scholars the opportunity to share works-in-progress or early-stage ideas with other leading property law scholars at Texas A&M University and beyond. Last year, the Program’s inaugural year, the Program invited 22 external legal scholars from law schools in the southern United States to the 2017 Schmooze.

The 2018 “Bridging the Urban Versus Rural Divide” Real Property Law Schmoozeinvites 17 legal scholars with expertise in either urban or rural property law to present unpublished works-in-progress or early-stage ideas that are relevant to the theme of how law can help resolve urban and rural challenges and bridge the urban versus rural divide. We welcome papers on a broad range of urban and rural property law challenges including, but not limited to, housing law and policy, land tenure, land loss, land use, zoning, the environment, and property law and theory, as well as papers that address international and comparative urban and rural property law issues. Vie

Notably, our Program in Real Estate and Community Development Law is coordinating with Texas A&M University School of Law’s Faculty Speaker Series to host two great property scholars who are also participating in the Schmooze:

Professor Joseph William Singer, the Bussey Professor of Law at Harvard Law School, will be the Distinguished Real Property Law Keynote Speaker on Friday, February 2, 2018. He will present "Things Invisible to See: State Action and Private Property." This Faculty Speaker Series talk will be open to the entire law school, whereas the Schmooze is an invitation-only workshop. 

Professor Bernadette Atuahene of IIT-Chicago Kent College of Law will ​present to the Texas A&M Law Faculty at the Faculty Speaker Series on Thursday, February 1, in addition to​ speaking on "Taxed Out: Illegal Property Tax Assessments and the Epidemic of Tax Foreclosures in Detroit" ​at the Schmooze on Saturday, February 3, 2018.

Click here for the full schedule. Looks like a superb event again this year!

January 30, 2018 | Permalink | Comments (0)

Wednesday, January 24, 2018

ALPS and Other European Property Law Conferences this Summer

Get ready to pack your light summer jackets:  the annual Association of Property, Law, and Society (ALPS) conference heads to Maastricht this summer!  The 9th annual ALPS meeting at Maastricht University, The Netherlands on May 31-June 2, 2018.  Average June temperature for Maastricht:  61 degrees Fahrenheit (16 degrees Celsius).  Personally, this will be a welcome change from the New Orleans heat wave that begins to hit around that time.    

The call for papers for ALPS is open.  Abstracts of 250 words should be emailed to alps2018 at  The deadline for submitting papers and panels is February 28, 2018 but registration for the conference will continue to be available after that date.  Authors and panel proposers will be notified of the acceptance of their individual submissions or proposed panel on a rolling basis and, in all cases, by no later than March 9, 2018.  For more information on the ALPS conference, please visit  

As luck would have it, if you are flying to Europe for ALPS this summer, there are not one, but two other property law conferences you can attend.  Three property law conferences for the price of one international plane ticket.  This is a deal too good to pass up!

First, the Cambridge Centre for Property Law is hosting a conference on May 25 and May 26.  The conference will bring together property law scholars and practitioners from around the world to discuss important contemporary issues facing the law of real property.  A number of great property law scholars are slotted to be at the Cambridge Centre for Property Law conference including, but not limited to, Greg Alexander (Cornell), Ken Reid (Edinburgh), Nicholas Hopkins (Law Commission), Sue Bright (Oxford), Sjef van Erp (Maastricht), Tim Mulvaney (Texas A&M), John Lovett (Loyola), and many, many, many more!  To book a spot at the conference, go to  If you have any questions about the conference, please contact Douglas Maxwell at dskm2 at

Second, the 9th edition of the Young Property Lawyers Forum (YPLF) - which is a global network of young property lawyers - co-founded by Dr. Jill Robbie (Glasgow) and Dr. Bram Akkermans (Maastricht) will be held in Maastricht on Monday, May 28 and Tuesday, May 29.  The YPLF is a conference especially for young researchers (those working on a PhD or within five years of finishing a PhD) and where more senior property law scholars attend, comment and actively participate, but do not present themselves.  If you are a junior researcher in property law and would like to participate in the YPLF 2018 conference, please send an abstract of no more than 300 words to the organisers at yplf at by February 28, 2018.

January 24, 2018 | Permalink | Comments (0)

Tuesday, January 23, 2018

Lovett On All Things Property

LovettJohn Lovett (Loyola-NOLA) has recently posted a number of interesting pieces on SSRN. Check them out below:

Into Centuries of Centuries: Reflections on Marc R. Poirier (1952-2015) (Journal of Law, Property, & Soc’y):

This essay reflects on the contributions to property law scholarship and teaching made by Marc R. Poirier (1952-2015), Professor of Law at Seton Hall School, over the course of his twenty-five year career in the legal academy. Marc Poirier was a distinguished scholar and great friend to many in the property law world. The essay recounts Poirier’s formative experiences as a student at Harvard Law School and in practice in Washington, D.C. It details his teaching innovations and his many institutional contributions to Seton Hall and the wider legal academy. It also provides a brief overview of Poirier’s remarkable range of scholarship on property law, emphasizing his syncretic, inter-disciplinary approach to property law and theory, environmental law and law dealing with gender identity and human rights. It draws attention to Poirier’s iterative, generous, and, above all, caring approach to scholarship, teaching and life.

Disseisin, Doubt, and Debate: Adverse Possession Scholarship in the United States (1881-1986) (Texas A&M Law Review):

This article addresses how U.S. and occasionally English property scholars discussed, analyzed and understood the doctrine of adverse possession between 1881 and the early 1980s. It fills a gap in current American property law scholarship by taking a deep, historiographic approach to a century of American adverse possession discourse, beginning with the ruminations of Oliver Wendell Holmes on possession in The Common Law (1881) and culminating in the famous tournament of scholars featuring R.H. Helmholz and Roger Cunningham (1983-86).

The article identifies and analyzes several major themes that emerge throughout this long century of adverse possession discourse. Those include: (1) constant debate over the fundamental doctrinal nature of adverse possession; (2) frequent attempts to distill the social, economic and systemic purposes served by the doctrine; (3) preoccupation with the Americanization of the English common law of adverse possession, and (4) attentiveness to incremental developments in U.S. courts and modest attempts to influence that development, occasionally interrupted by more radical prescriptive and theoretical critiques.

The article demonstrates that American adverse possession scholarship during this period was generally endogenous, apparently uninterested, with a few notable exceptions, in any social, economic or market factors occurring outside the academy or the narrow confines of adverse possession case law. This article recovers for contemporary lawyers, judges and property scholars the impressive learning and frequently brilliant insights that scholars such as Henry Ballantine, Percy Bordwell, William Walsh, William Stoebuck and Charles Callahan provided in their work — insights, which in many instances, foreshadowed scholarly innovations that appeared in subsequent decades.

Moving to Higher Ground: Protecting and Relocating Communities in Response to Climate Change (Vermont Law Review):

As many dramatic recent flooding events illustrate, the risks posed by global climate change continue to mount. Rather than attempt to prove a causal connection between any of these tragic events and climate change, this article focuses on what many scholars and public policy advocates now realize is an inevitable response: retreat — especially moving households and entire communities to higher ground.

This article answers four interrelated questions that relate to the challenge of protecting or relocating communities threatened by sea-level rise and climate change in the specific context of takings claims and government land acquisition programs. These questions are visualized as forming a chronological decision tree which government officials, legislators and, inevitably, courts will face.

First, the article addresses whether property owners can assert a valid takings claim based on a governmental decision not to build hard infrastructure that would protect land, homes and businesses from sea-level rise and flooding? The article’s answer is no; takings liability does not exist in this situation. Next, the article asks whether governmental actors — federal, state or local — are likely to use the power of eminent domain to relocate property owners and entire communities to higher ground? Again, the answer is no; the political unpopularity of eminent domain will usually take this option off the table.

If governments do not use eminent domain to relocate communities but do want to use public resources to create voluntary property acquisition programs designed to facilitate the movement of households and, indeed communities, to higher ground, what strategies have proved to be most successful? To answer this question, the article reviews a handful of recent experiments and distills several lessons from this experience.

Finally, the article tackles a residual question that follows from the previous three. If a government sponsored buy-out program succeeds in inspiring a large percentage of property owners in a community to sell their property and actually move to higher ground (or if large numbers of property owners leave on their own volition for other reasons), what obligations, if any, does the government still owe to those who remain behind, especially when it comes to maintaining infrastructure and government services? Would a county, a state, the federal government, or even a public utility be able to withdraw infrastructure support and services and leave the remainder of the community to fend for itself in the face of ever-rising waters and more ferocious storms? To answer this question the article describes several recent cases and scholarly claims that purport to open the door to potential “passive takings” liability for governmental inaction in these circumstances. The article concludes by noting the irony that although governments generally do not face liability for failing to build hard infrastructure to protect communities from the risks of climate change at the outset, if their relocation and buy-out programs partially — but not entirely — succeed, they might face takings liability at the end of the day.

Tacking in a Mixed Jurisdiction (Andrew Steven ed., Avizandum 2017):

This book chapter addresses a key moment in the development of Louisiana’s law of acquisitive prescription. For one hundred and forty years, Louisiana courts had held that a possessor in bad faith could cumulate her possession with that of a prior possessor in good faith for purposes of establishing ten year acquisitive prescription regardless of whether the two possessions were linked by particular or universal succession. In Bartlett v. Calhoun, 412 So.2d 597 (La. 1982), the Louisiana Supreme Court reversed course and held that a subsequent possessor who acquires her possession by particular title must have all the statutory characteristics and conditions required for ten year acquisitive prescription. In other words, a bad faith possessor cannot tack her possession to the good faith possession of a prior possessor for purposes of achieving ten year acquisitive prescription if the subsequent possessor acquires possession by particular title.

This book chapter analyzes the doctrinal background preceding the decision in Bartlett, comments on the significance of the decision, reveals the dispute’s surprising final outcome, and responds to the decision’s critics, arguing that the alleged doctrinal asymmetry produced by the decision has not troubled subsequent Louisiana courts and explaining why the decision has acquired its own canonical weight in Louisiana property law. The book chapter concludes by providing a brief comparative excursion into Scots law of positive prescription, demonstrating that Scots law would solve the factual problem presented in Bartlett by focusing judicial inquiry on questions related to the authenticity of an allegedly forged deed rather than the good faith of a second possessor.

January 23, 2018 | Permalink | Comments (0)

Monday, January 8, 2018

Professors' Corner: Installment Land Contracts

Professors’ Corner
A FREE monthly webinar featuring a panel of law professors,
addressing topics of interest to practitioners of real estate and trusts/estates
Members of the AALS Property and Real Estate Transactions Sections are welcome and encouraged to register and participate
Tuesday, January 9, 2018
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
Installment Land Contracts:  Uses, Abuses, and Legislative Proposals
·        Professor Jim Durham, University of Dayton
·        Professor Wilson Freyermuth, University of Missouri
·        Professor Chris Odinet, Southern University Law Center
In the wake of the mortgage crisis, several jurisdictions have seen a resurgence in the use of the installment land contract as a financing device. Use of the installment contract creates a number of risks, particularly in jurisdictions where existing precedent and/or statutory provisions do not clearly articulate the appropriate procedures for the vendor’s enforcement of contract following the vendee’s default. Some investors have sought to capitalize on this lack of clarity, effectively using installment contracts as the equivalent of “rent-to-own” contracts that provide for landlord-like default remedies while disclaiming any responsibility for the habitability of the property.
Professors Durham and Freyermuth will discuss the existing legal background governing the characterization and enforcement of installment land contracts and the wide variety of approaches taken by various states. They will also discuss the provisions and the merits of recent legislative proposals designed to regulate some of the more abusive uses of the installment land contract device.
Register for this FREE webinar program at
Sponsored by the ABA Real Property, Trust and Estate Law Section
Legal Education and Uniform Laws Group

January 8, 2018 | Permalink | Comments (0)

Sunday, December 31, 2017

Happy New Year from the Property Law Prof Blog

Happy New Year, friends of the blog! Our wish for you next year (to quote the wise words of Steve Clowney) is that "all of your half-baked ideas turn into masterpieces, all of your committee work gets postponed, and all of your students write above average exams." Thanks for a great year and see you in 2018!

December 31, 2017 | Permalink | Comments (0)

Saturday, December 23, 2017

GUEST BLOGGERS: Dave Fagundes and Roman Hoyos on the NFL's Catch Rule

Stepping into the Property Law Prof Blog, we welcome gust bloggers Dave Fagundes (Houston) and Roman Hoyos (Southwestern).
Last NFL Sunday, the two top teams in the AFC—the New England Patriots and the Pittsburgh Steelers—faced off in a pivotal late-season matchup. In the game’s final seconds, Pittsburgh tight end Jesse James (yes that’s his real name) appeared to score a dramatic winning touchdown. But upon further review, as the famous saying goes, the referees reversed the call on the field and ruled that James had not completed a valid catch because he had lost control of the football before and during making contact with the turf. Since then, the NFL rules for what constitutes a completed catch have come under scrutiny, with most observers expressing skepticism of the NFL’s rule that a catch must “survive the ground” to be completed. 
In this pair of posts, these two property law professors—Dave Fagundes of the University of Houston Law Center and Roman Hoyos of Southwestern Law School—defend and critique the NFL’s catch rule, respectively, using first possession principles and the famous case of Pierson v. Post. Full disclosure: Dave is a lifelong Patriots fan while Roman is a Steelers diehard, but they both emphasize that their opinions have nothing to do with their football loyalties and are based solely on objective legal analysis. 
The posts from each of our guest bloggers are below! Great job, Dave and Roman!

December 23, 2017 | Permalink | Comments (0)