PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Tuesday, February 24, 2015

Phelps on Preservation Law and Agricultural Places

PhelpsJess Phelps (USDA) has posted 'A Tinge of Melancholy Lay Upon the Countryside': Agricultural Historic Resources within Contemporary Agricultural and Historic Preservation Law (Virginia Environmental Law Journal) on SSRN.  Here's the abstract:

Preservation of working lands and resources has become the focus of many interested in the protection of rural areas. Despite public support for such initiatives and quantifiable successes, preservation advocates have struggled to utilize the current tools available to safeguard historic resources. To address this gap, this Article first considers the unique nature of agricultural historic resources and the challenges they present from a preservation perspective. It then assesses the current framework of historic preservation laws, developed largely for urban neighborhoods, and the issues preservationists face in applying these tools to the rural context. Last, this Article proposes a series of policy solutions that would provide meaningful assistance to rural preservationists in achieving their objectives. Ultimately, historic preservation has the potential to play a strong role in preserving the character of rural areas, but only if this profound policy disconnect can begin to be bridged.

February 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Summerfield on the Future of Mass Graves

Jason Summerfield (Independent) has posted Comments on the Potter's Field: The Future of Mass Graves (Quinnipiac Probate Law Journal) on SSRN.  Here's the abstract:

The paper addresses burial policy with respect to city cemeteries and, in particular, New York City’s Hart Island, the so-called 'potter’s field,' which is currently operated under the Department of Corrections. The institution is the target of a significant amount of recent scrutiny, including litigation, New York City Council oversight committees, and public criticism. These converging debates culminated in an overhaul of DOC policies regarding access to Hart Island, formation of an online database of burial records in April, 2013 and proposed legislation that would transfer jurisdiction over the island to New York City's Parks and Recreation. The paper outlines the pressing need for an understanding of the city cemetery as a global institution, noting how burial processes can change over time. It looks at New York City's own mass grave in addition to other variations throughout the world and history. The essay reviews the city cemetery in the context of three ‘criticisms’ raised by Hon. Elizabeth S. Crowley’s ‘Briefing Paper’ on the subject and recently proposed legislation that affects the institution.

February 24, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2015

Book Announcement: Property Textbook by Barros & Hemmingway

From the publisher:

I am pleased to inform you that Property Law by Benjamin Barros and Anna Hemingway will be available for your fall 2015 class. This new casebook features an innovative approach that completely re-imagines the law school casebook format.  Covering all the major topics included in a basic 1L Property course, Property Law functions more like an undergraduate textbook than a traditional law school casebook, making use of sidebars, illustrations, and other design devices to present material more clearly. The authors present concepts simply, then move the discussion toward complexity. Clear yet sophisticated, the casebook is the perfect choice for all skill levels. Including problems that students can and should be able to do on their own, explanatory answers, and skills-based exercises, this casebook is both professor-friendly and student-friendly.  Themes that run through the course are highlighted throughout the book, resulting in a casebook that clearly presents the fundamentals of property law. This allows students to develop an understanding of basic concepts on their own while allowing professors to assist their students in developing an advanced understanding of property law.

Professors will benefit from:

1.    Clear, concise, and designed to be student-friendly, which also makes it professor-friendly. The book is designed so that a professor can teach cover-to-cover in four credits.  The Teacher’s manual provides ideas on how to do more or less with any topic.
2.    Clarity and bar passage are a major focus of this casebook.  The author team understands the importance of accessibility and ease-of-use.
3.    With a focus on preparation for taking the bar, Property Law includes subjects—including purchase money mortgages, the assumption-subject to distinction, and marshalling of assets—that many other property casebooks do not include.

Students will benefit from:

1. Clear exposition precedes cases, enhancing student understanding.
2. Problems with explanatory answers where appropriate.
3. Illustrations to aid in understanding in appropriate places throughout the book.

February 20, 2015 | Permalink | Comments (0) | TrackBack (0)

Lee on Land-Grabbing Research

Jootaek-LeeJootaek Lee (Northeastern) has posted Contemporary Land Grabbing, Research, and Bibliography (Law Library Journal) on SSRN.  Here's the abstract:

Researching contemporary land grabbing issues is complicated and more difficult than traditional land grabbing research which covered between the colonial period and the early twenty-first century. Contemporary land grabbing research is difficult for researchers because of the complex reasons and motivations behind the contemporary land grabbing, the number of stakeholders involved, the interdisciplinary nature of research, the many different types of legal sources to search — international treaties, custom, jurisprudence, soft law, and domestic statutes and customary law — lack of empirical evidence, and scattered resources in many different places. The research is a mixture of international and domestic legal research and legal and non-legal research. In this article, I will first investigate the contemporary land grabbing and land alienation and their definitions and identify the difficulties of research. Next, I will delineate various mechanisms and international principles which can be useful for the protection of the rights of indigenous and local people from the attack of State and non-State actors. Finally, I will selectively review several books and articles with annotations which I believe will provide great starting points for contemporary land grabbing research.

February 20, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2015

Is England Becoming a Nation of Renters?


The Guardian takes a look:

[I]n 1993, the majority of people aged 35 to 60 had a mortgage or owned outright. Mortgage lending had been freed up in the 1980s; council houses sold through right-to-buy and private landlords had not yet expanded much. The 1990s appeared to be the start of a home-owning democracy; what no one at the time realised was that it was, in fact, the peak of home ownership.

Ten years later, in 2003 – by the time the Queen’s eldest son, Prince Charles, was aged 55 – about 90% of people his age were living in a home they either owned outright or had a few years left of a mortgage on. Charles had been born slap bang in the middle of the home-owning generation that had been fortunate in many other ways, including having the NHS and the welfare state.

Ten years on again, in 2013, the picture is very different. Charles’s eldest son, William, turned 31 in the summer of 2013. Only 36% of his contemporaries had a mortgage by then, with 64% renting. William’s generation is “generation rent”, and there is little sign that this will not be the tenure of the majority of his cohort – for life. Home ownership remains common among older people, but that wealth cannot be passed on in full to younger generations. As people age, they will use up a great deal of their wealth in retirement.

February 19, 2015 | Permalink | Comments (0) | TrackBack (0)

Lewyn on Comprehensive Planning

LewynMichael Lewyn (Touro) has posted The (Somewhat) False Hope of Comprehensive Planning on SSRN.  Here's the abstract:

Some commentators suggest that comprehensive planning is indispensable for smart growth (that is, less auto-centric development). This paper argues that municipal comprehensive plans, like zoning, are merely a tool that can be used to support sprawl as easily as smart growth. Thus, planning, although desirable for a variety of reasons, is not absolutely sufficient or necessary for smart growth.

February 19, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

Will Congress Take Action on Homeowner Tax Breaks

The L.A. Times reports that American homeowners have little to fear:

And there is already common ground to build on: bipartisan support, including at the White House, for a broad package of tax changes affecting businesses. Treasury Secretary Jacob J. Lew recently said the administration could support reforms that lower top tax rates for big corporations, eliminate unfair loopholes and simplify the entire system for businesses. Republicans generally are on board but insist that small businesses be part of the solution.

[...] What about comprehensive tax reforms for individuals of the type that inevitably would involve significant changes in current preferences for homeowners and tax increases for higher-income households? Highly unlikely. Congressional Republicans and the White House have such conflicting views of the tax system — Obama wants to raise taxes on the wealthy, Republicans vehemently oppose any net new taxes — that coming together on a major reform package covering individuals would be nothing short of miraculous.

Bottom line: Homeowner tax breaks are safe for the time being, probably until 2017 at the earliest.

February 17, 2015 | Permalink | Comments (0) | TrackBack (0)

Kent on Exactions after Koontz

Kent_mikeMichael Kent (Campbell) has posted Land Use Exactions, Anti-Evasion, and Koontz v. St. Johns River Water Management District on SSRN.  Here's the abstract:

This article considers the U.S. Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District, which extended the application of the Court’s exactions test (known as Nollan/Dollan). The majority of the Court relied heavily on the unconstitutional conditions doctrine, explaining that this doctrine formed the basis not only for the Nollan/Dolan framework but also for the extension of that framework to Koontz’s new factual setting. Led by Justice Kagan, four members of the Court dissented. Although the dissenting Justices seemingly agreed with several of the majority’s propositions, they vigorously opposed the manner in which the majority applied those propositions.

Although Koontz might be viewed as just another in a long line of cases that make up the messy jurisprudence of regulatory takings and unconstitutional conditions, the primary thesis of my article is that Koontz in fact provides a key to unlocking the Court’s exactions framework. Relying on my prior work with Brannon Denning, this article posits that both regulatory takings and the doctrine of unconstitutional conditions constitute anti-evasion doctrines by which the Court seeks to fill enforcement gaps left open by its prior constitutional decision rules. Inasmuch as land use exactions lie at the intersection of these two doctrinal areas, one would expect to find that anti-evasion notions play a large role in the Court’s exactions decisions. And indeed, both the majority and the dissent in Koontz invoked the anti-evasion characteristics of the Nollan/Dolan test in support of their analytical positions in that case.

Viewing Koontz (and its jurisprudential antecedents) through the prism of anti-evasion helps both to explain the majority’s decision in that case and to bring the differences between the majority and dissent into sharper focus. Additionally, the anti-evasion concept suggests some guidelines for how future exactions issues might be resolved — both at the micro level (dealing with future decision rules that will have to be developed in light of Koontz) and at the macro level (addressing larger questions about the Court’s takings jurisprudence and the place of the exaction cases within it).

February 17, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Map of the Day: All the Single Ladies


The Atlantic Cities Blog has am updated series of maps looking at the ratio of single men to single women across the country and  in different age brackets.

February 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Fennell on Resource Segmentation

Fennell-LeeLee Fennell (Chicago) has posted Slicing Spontaneity (Iowa Law Review) on SSRN.  Here's the abstract:

In this symposium essay, I consider the role of resource segmentation — the natural or artificial division of resources into appropriable or contributable units — in eliciting and maintaining coordination in the absence of formal private property rights or top-down coercion. I argue that the appropriate segmentation of resources can reduce informal governance burdens and, by constructing choice sets, promote convergence between privately optimal and socially optimal choices. The effects on governance follow from the fact that segmentation, whether given by nature (fish, trees, pieces of fruit) or artificially constructed (boatloads, bushels, pie slices) provides a measuring rod for assessing draws on, or contributions to, common pools. In addition, when contributions to or withdrawals from a common pool take a chunky, discontinuous form, the private and social optimum may more readily converge on a single choice, despite the presence of externalities. This lumpiness in choices influences when externalities will be relevant to efficiency and can amplify the significance of policies and norms that edge decisions in socially desirable directions. Resource segmentation should, therefore, receive independent attention as a design element important to sustaining spontaneous order.

February 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Mian & Sufi on Fraudulent Income Overstatement on Mortgage Applications

Atif Mian (Princeton - Public Policy) & Amir Sufi (Chicago - Business) have posted Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005 on SSRN.  Here's the abstract:

Academic research, government inquiries, and press accounts show extensive mortgage fraud during the housing boom of the mid-2000s. We explore a particular type of mortgage fraud: the overstatement of income on mortgage applications. We define “income overstatement” in a zip code as the growth in income reported on home-purchase mortgage applications minus the average IRS-reported income growth from 2002 to 2005. Income overstatement is highest in low credit score, low income zip codes that Mian and Sufi (2009) show experience the strongest mortgage credit growth from 2002 to 2005. These same zip codes with high income overstatement are plagued with mortgage fraud according to independent measures. Income overstatement in a zip code is associated with poor performance during the mortgage credit boom, and terrible economic and financial economic outcomes after the boom including high default rates, negative income growth, and increased poverty and unemployment. From 1991 to 2007, the zip code-level correlation between IRS-reported income growth and growth in income reported on mortgage applications is always positive with one exception: the correlation goes to zero in the non-GSE market during the 2002 to 2005 period. Income reported on mortgage applications should not be used as true income in low credit score zip codes from 2002 to 2005.

February 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2015

A Colossus of Africa


Slate takes a look at the history and meaning of the largest apartment building in Africa:

The building, along with the neighborhood of high-rises around it, had long functioned as something of a vertical waiting room for admission into urban South Africa. Adjoining the city’s largest train and bus station, it was the landing point from which thousands of immigrants, refugees, and rural migrants took their first tentative steps into Africa’s wealthiest city, and their presence made the area dizzyingly cosmopolitan. Congolese nightclubs jostled up against bootleg Nollywood film stores and Ethiopian restaurants; the knots of gossiping women gathered on street corners chattered in Zulu, Yoruba, French, and Somali.

And for a journalist like me, Ponte seemed almost too good to be true: a building that doubled as a neat metaphor for contemporary South Africa—a carefully wrought fortress of white privilege that had fallen into disrepair and violence before emerging, haltingly, into a more inclusive but far more uncertain version of itself.


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

Mank on Standing to View Other People's Land

Mank_0Bradford Mank (Cincinnati) has posted Standing to View Other People's Land: The D.C. Circuit's Divided Decision in Sierra Club v. Jewell (Columbia Journal of Environmental Law) on SSRN.  Here's the abstract:

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it would decide this issue. Environmentalists and nature observers would generally favor broad standing rights, but property rights advocates would argue that only those with a legal right to enter a property should have the right to sue to protect it. If it addresses whether plaintiffs must have a legal interest in any property they seek standing to protect, the Supreme Court might be forced to resolve the contradictions in its standing doctrine.

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

Campbell on Nonjudicial Foreclosure

CampbellJohn Campbell (Denver) has posted Getting Wrongful Foreclosure Right: Two Stage, Progressive Filtering in Nonjudicial Foreclosure States on SSRN.  Here's the abstract:

In some states, foreclosures occur with no judicial involvement. Typically, after this "nonjudicial foreclosure," the new buyer of the home will file an unlawful detainer in court to remove the former homeowner. But, what if, in that action, the homeowner (now defendant) produces evidence the foreclosure was illegal - even void? Can the homeowner avoid eviction? The answer to this question depends on what state a homeowner is in. In 8 states, even if a homeowner proves that the foreclosure was void and the new buyer could not have taken title, the homeowner will still be evicted from the home. This is because in those states, the court is prohibited from considering any evidence relating to who has legal title to the property. As a result, homeowners can be removed from a home before any court determines - despite having the chance to do so - who has a superior claim to possession.

This article highlights this split between states that consider evidence in unlawful detainers (challenge states) and those who do not (no-challenge states). I argue that no-challenge states unnecessarily cause, augment, and concretize the harm of wrongful foreclosures. I assert that these harms run to homeowners, the legitimacy of courts, and society as a whole. Ultimately, I assert that challenge states have found a more prudent path that obtains the expediency of nonjudicial foreclosure while still allowing for just results.

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

Wednesday, February 11, 2015

Why Everyone Hates Zoning

Los Angeles and Shreveport, La. are also bringing the power of the state down on the "little free library" movement:

In Los Angeles, Peter Cook, who acts under the name Peter Mackenzie, and his wife, writer Lili Flanders, were told by a city investigator that their curbside library was an obstruction. They were given a week to remove it, or else face fines from the city. This came after an anonymous note from "a neighbor who hates you and your kids" was left on their library, ordering them to "Take it down or the city will."

It's a similar situation to the one in Shreveport, where the city sent a cease and desist letter to the owners of a Little Free Library. Ricky and Teresa Edgerton were told they could file an appeal to let the library remain, but it would cost $500.

February 11, 2015 | Permalink | Comments (0) | TrackBack (0)

Schindler on Underground Dining

Sarah.sSarah Schindler (Maine) has posted Regulating the Underground: Secret Supper Clubs, Pop-Up Restaurants, and the Role of Law (Chicago Law Review -  Dialogue) on SSRN.  Here's the abstract:

Instagram pictures of elegantly plated dinners, long farm-style tables, and well-to-do people laughing in what looks like a loft apartment are followed by commenters asking, “Where is this?” This is the world of underground dining. Aspiring and established chefs invite strangers into their homes (or their friends’ stores after hours, or the empty warehouse at the edge of town, or the nearest farm) for a night of food and revelry in exchange for cash. Although decidedly anti-establishment, these secret suppers and pop-up restaurants are popular — there are websites to help people locate them, and many respected publications have penned stories about their rise. While some municipalities have been proactive in regulating these events, in other locales these dinners remain completely illegal, violating health, zoning, employment, and business-licensing regulations. At the most basic level, this Essay considers what society should make of these dinners. It asks how we should balance our societal commitments to entrepreneurial innovation, community-building, and eating good food against the rule of law.

February 11, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2015

The Ballerest of Accommodations

Lee Wachtstetter of Florida is living the dream:

Wachtstetter, an 86-year-old Florida widow, took her daughter's advice. She sold her five-bedroom Fort Lauderdale-area home on 10 acres and became a permanent luxury cruise ship resident after her husband died.

Mama Lee, as she's known aboard the 11-year-old Crystal Serenity, has been living on the 1,070-passenger vessel longer than most of its 655 crewmembers — nearly seven years.

"My husband introduced me to cruising," she recalled. "Mason was a banker and real estate appraiser and taught me to love cruising. During our 50-year marriage we did 89 cruises. I've done nearly a hundred more and 15 world cruises."

[...] She estimates living the good life on the Serenity this year will cost her $164,000. That'll cover costs of her single-occupancy seventh deck stateroom, regular and specialty restaurant meals with available lunch and dinner beverages, gratuities, nightly ballroom dancing with dance hosts and Broadway-caliber entertainment — as well as the captain's frequent cocktail parties, movies, lectures, plus other scheduled daily activities.

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Fraley on Surface Water Liability and the Property-Tort Divide

FraleyjJill Fraley (Washington and Lee) has posted The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability on SSRN.  Here's the abstract:

Nuisance provides the quintessential case study for illuminating theoretical issues surrounding the property-tort divide. This Article contributes a new case study based on surface water liability. Surface water liability perches even more awkwardly than nuisance on the divide with parties and judges stringing together doctrines and defenses from both fields. This case study can teach us about the property-tort boundary and the role of human flourishing in making those choices.

First, scholars traditionally identified three potential rules choices. Calabresi and Melamed then introduced a fourth. Surface water liability demonstrates a fifth rule choice.

Second, the surface water case study demonstrates that any property versus liability rules decision rests on some understanding of human flourishing. Implicitly or explicitly, this concept of human flourishing will include as a historical context an idealized vision of the human-land relationship. This Article imparts a narrowly tailored history of land drainage philosophy, pairing that history with an account of the evolution of surface water jurisprudence to demonstrate how the contemporaneous understanding of human flourishing encoded an idealized and contingent vision of the human-land relationship. This vision intuitively and organically integrates with land use decision making because it prioritizes and potentially even moralizes decisions about land development. More abstract components of human flourishing integrate less easily because they operate a level removed from the land context. As a result, there is an unseen hierarchy of values without the concept of human flourishing applied.

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Brady on The Failure of America's First City Plan

BradyMolly Brady (Yale Ph.D. Candidate) has posted The Failure of America's First City Plan (The Urban Lawyer) on SSRN.  Here's the abstract:

Many legal scholars and urban planners extol the virtues of the great American downtown grid: the uniform blocks and parallel streets that dominate cities from New York to San Francisco. Against this precision, the serpentine roads of many early American towns are viewed derisively, as an undesirable consequence of disorganized colonization. The history of America’s first planned city offers a natural experiment for examining the legal and economic consequences of both types of layouts — and evidence about when the conventional wisdom on grids is wrong.

This Article tells the story of the failure of America’s first city plan: the Nine Squares grid in New Haven, Connecticut. The Squares were problematic from their inception because they were too large and improvidently located. To adapt to land conditions and a commercial future far from what the town’s founders anticipated, eighteenth-century civic leaders resorted to a variety of processes to revise the layout, including a major subdivision that required use of the eminent domain power without payment of compensation in the 1780s. Town planning within the grid contrasted sharply with planning in areas surrounding the grid during the same time frame. In other parts of New Haven, incremental street decisions, legal mechanisms for resident involvement, and laws permitting in-kind compensation for new roadways allowed the town responsively to plan streets suited to changing land and settlement conditions.

This Article advances a new theory of street planning drawn from the New Haven case study, aiming to surface the virtues piecemeal planning can bring during some points in a city’s development. Streets can be thought of in market terms, and comprehensive grid plans may act as market distortions, preventing settlement forces from organically producing more effective street layouts. Particularly where information about land is dispersed among members of a small population, bottom-up street plans may be desirable because they reflect residents’ preferences and harness dispersed knowledge about land conditions and uses.

February 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Reminder: Registration for ALPS

The Association for Law, Property and Society is holding its 6th annual meeting at the University of Georgia School of Law, April 30 - May 2, 2015.  The deadline to register and to submit a paper topic is March 1. The plenary speaker will be Professor Laura Underkuffler from the Cornell Law School. All panels will take place on May 1 and 2. ALPS welcomes papers and panel proposals from all areas of property law scholarship, and from a diversity of perspectives. 
There will be a field trip for the afternoon of Thursday, April 30.  We will visit a brand new mixed-income public housing community, phase 1 of which just opened last month.  See
The tour will include a presentation that explains the background, design and planning issues, financing, regulatory framework, social dimensions, etc. The trip will probably start at about 3 pm, so make travel plans accordingly if you'd like to go.  There will be an opening reception for everyone after the field trip.
Get the details and register at the website:

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