PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Tuesday, September 16, 2014

Bike Lanes Speed Up Traffic?

At least in New York (the full story has some nice graphics):

Since 2007, New York City has added 31 miles of protected bike lanes — that is, lanes protected by a physical barrier, such as a row of parked cars or a curb.

The main point of building protected lanes was to make biking in the city safer. But when the NYC Department of Transportation recently studied the impact of the lanes, they found a secondary benefit: on several different avenues in Manhattan, the lanes actually helped speed up car traffic.

[...]  So how did the bike lanes speed up traffic? It seems that two factors were important.

One is that, for the most part, driving lanes weren't actually eliminated when they bike lanes were built — they were simply narrowed. Additionally, the design of the bike lanes included a dedicated left-turn lane at most intersections, allowing cars to wait to turn left without holding up traffic.

September 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Outka on Intrastate Preemption in the Shifting Energy Sector

Outka_2013Uma Outka (Kansas) has posted Intrastate Preemption in the Shifting Energy Sector (Colorado Law Review) on SSRN.  Here's the abstract:

The U.S. energy sector is in a state of transition, at once moving toward cleaner energy resources, but also expanding the use of fossil fuels with new access to oil and gas plays. Although federalism concerns have dominated the literature, I argue here that the state-local relationship and intrastate preemption are shaping energy policy in important and under-examined ways. The energy transition to date has been marked by growth centered on hydraulic fracturing (fracking) and commercial wind development, both of which are mostly regulated at the state level. Local governments have exerted authority over both forms of energy production, although state-local tensions in the fracking context have been especially pronounced. Hundreds of localities have opposed or sought to contain the effects of fracking through official action, including bans and moratoria.

This striking trend, considered alongside local responses to wind development, provides a fresh lens through which to assess the role of intrastate preemption in the shifting energy sector. By approaching fracking and wind together, this Article represents a departure from the largely resource-segregated literature in favor of greater scholarly coherence on energy transition. As this Article explains, the doctrine of intrastate preemption, though it hews close to its federal analogue, is uniquely nuanced by the variability of state-local power structures. I develop the claim that the unpredictable legal environment resulting from this variability works to enhance the prospects for local governments, and even more localized property interests, to inform national energy discourse.

September 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

Institute for Justice Fights Civil Forfeiture Abuse

Dave Weigel, writing for Slate, has a well-balanced look at the work of the Institute for Justice in Philadelphia.  Why the IJ has its hackles up:

The Institute for Justice filed its lawsuit after months of observing the courtroom, four years after it published a report on how civil forfeiture meant “property is guilty until you prove it innocent,” two years after Philadelphia City Paper reporter Isaiah Thompson published a lengthy investigation of the process, and one year after a blockbuster New Yorker piece about forfeitures around the country. The basic argument, in the articles and in the lawsuit, was that Philadelphia’s use of forfeiture was wildly out of whack. Thompson’s reporting found that the city brought in “upwards of $6 million a year” from forfeitures, or about five times as much as Brooklyn. Those numbers, and Thompson’s subsequent reporting, are cited in the Institute for Justice’s filing.

“If you fail to show up in 478, they call your name, and prosecutor marks your case for default,” said the Institute for Justice’s lead attorney on the case, Darpana Sheth. She’d previously worked on a forfeiture case in Massachusetts, which the group had made famous—George Will even wrote a datelined column about it. “If you tell average people on the street how this works,” said Sheth, “it sounds so foreign to the American system, they can’t believe it.”

September 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Phelps on Preservation Easements and Historic Religious Architecture

JessphelpsJess Phelps (USDA) has posted 'Scarcely a Vestige of Antiquity Remains': Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture (Environmental Law Reporter) on SSRN.  Here's the abstract:

Preservation of historic religious architecture has been one of the most controversial areas of regulatory preservation activity. Although regulatory options remain constitutionally permissible, efforts to protect historic religious properties have been limited by legislation and lack of political will. One alternative source of preservation intervention, however, has largely escaped notice - a quiet expansion in the use of preservation easements to protect significant historic religious architecture. This Article evaluates this expansion, providing the first meaningful analysis of how preservation easements protecting historic religious structures have attempted to balance preservation and religious freedom concerns, and assessing the relative success of these efforts to date.

September 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Map of the Day: The World's Longest Non-Stop Flights


September 12, 2014 | Permalink | Comments (0) | TrackBack (0)

The Scourge of Modern Architecture


A nasty dispute over new construction in a historic preservation district in Raleigh:

The Euclid Street home was first approved by the Raleigh Historic Development Commission nearly a year ago. But across-the-street neighbor Gail Wiesner appealed the decision, calling the home’s design “garishly inappropriate” for a historic neighborhood.

In a 3-2 vote, the city’s Board of Adjustment ruled in favor of Wiesner, putting the partially built house in legal limbo. As long as the Board of Adjustment ruling stood, Cherry and Gordon couldn’t finish construction, and they could have been forced to change the design or tear the structure down.

Reached Thursday morning, Cherry said Bushfan’s ruling is a huge relief. “We are very excited to get this behind us,” he said. “It’s our hope that this can be something that the Oakwood community and Gail and everyone involved can put behind us and move forward. It’s going to be important to heal a lot of divisions and come together as a community.”

Read more here:

September 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Owley & Lewis on Urban Agriculture

Jessie Owley (Buffalo) & Tonya Lewis (Buffalo) have posted From Vacant Lots to Full Pantries: Urban Agriculture Programs and the American City (Detroit Mercy Law Review) on SSRN.  Here's the abstract:

This Article builds on efforts to promote urban agriculture and remove legal and practical obstacles to its development. Specifically, we explore concerns regarding land tenure. Urban agriculture development can be retarded by uncertainties in landownership and agriculturalists’ land rights. We explore property tools that could be helpful to urban agriculturalists (both farmers and gardeners). One thing we learned quickly in our research is that the challenges (and therefore the most helpful tools) vary greatly by place. For this reason, we present examples of urban agriculture efforts across the United States to demonstrate the varying challenges that jurisdictions face and to detail which property law tools have effectively been put to use. Some of tools (like negotiating long-term leases or getting permits to farm city-owned land) are already in place. Others (like using self-help nuisance concepts) are more theoretical. What we find most intriguing and potentially widely applicable is the development of urban agricultural land trusts and uses of partial property rights like conservation easements and other servitudes. We end with a broader discussion of how land trusts and the property tools they have at their disposal serve to meet current urban agricultural needs.

September 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Lehavi on Public versus Private Law Strategies to Globalize Property

LehaviAmnon Lehavi (ICH - Radzyner) has posted Unbundling Harmonization: Public versus Private Law Strategies to Globalize Property (Chicago Journal of International Law) on SSRN.  Here's the abstract:

The landscape of supranational institutions is highly diverse, defying a single concept of globalization. Some cross-border mechanisms aim at coordination, which would streamline the movement of capital, goods, services, and persons, but could leave intact a substantial layer of local legal ordering. Other supranational instruments aspire to achieve fuller-scale harmonization, placing more pressure on national legal systems to converge. The world-web of bilateral investment treaties may be viewed as settling for coordination, the European Union as increasingly seeking harmonization, and the European Convention of Human Rights as currently located midway.

In the context of property law, this Article argues that, somewhat counter-intuitively, the true challenge for supranationalism lies in bringing closer private law doctrines rather than public law ones. While countries in their sovereign capacity may at times resist subjecting their local regulatory powers to constitutional-like supranational property norms, they are often able to employ public law strategies that establish credible systems of cross-state commitments, while still enjoying a considerable margin of deference in exercising their sovereign powers. In contrast, moving toward a global system of private law property doctrines may require a deeper commitment to fundamental changes in local ordering, implicating core cultural, social, and economic attributes of national societies.

The Article identifies the particular challenges of devising supranational property norms in private law doctrines, such as retention of title or good faith purchase of stolen goods. As a functional matter, since such doctrines may affect an indefinite number of parties, who are often not tied by contract and cannot explicitly allocate risks involved with moving across jurisdictions, the level of uniformity required to avoid frequent legal clashes is much higher than that which typifies public law settings. As a normative matter, any change in private law doctrines must trickle down to social and cultural mechanisms so that it would be absorbed by heterogeneous crowds within and across national borders -- a formidable challenge given the slow pace of cultural change.

September 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

A Good Old Fashioned Barn Raising

People magazine explains:

Rome wasn't built in a day, but erecting a beautiful barn in under 24 hours is no problem for the Amish community of La Rue, Ohio.

Teacher Scott Miller recently helped his Amish neighbors with a barn raising. Along with lending a hand in the process, Miller set up his camera to photograph the event. From 7 a.m. until 5 p.m., Miller's camera snapped away as the community created their newest building from the ground up.

At the end of the day, Miller had over 1,700 photos which he put together into the impressive time-lapse video above. The clip is an amazing example of what can be achieved with a little teamwork and dedication.

September 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Sprankling on The International Law of Property

SpranklingJohnJohn Sprankling (Pacific) has recently finished The International Law of Property (Oxford University Press).  Cribbing from the publisher's website:

Does a right to property exist under international law? The traditional answer to this question is no: a right to property can only arise under the domestic law of a particular nation. But the view that property rights are exclusively governed by national law is obsolete. Identifiable areas of property law have emerged at the international level, and the foundation is now arguably being laid for a comprehensive international regime. This book provides a detailed investigation into this developing international property law. It demonstrates how the evolution of international property law has been influenced by major economic, political, and technological changes: the embrace of private property by former socialist states after the end of the Cold War; the globalization of trade; the birth of new technologies capable of exploiting the global commons; the rise of digital property; and the increasing recognition of the human right to property.

The first part of the book analyzes how international law impacts rights in specific types of property. In some situations, international law creates property rights, such as rights in aboriginal lands, deep seabed minerals, and satellite orbits. In other areas, it harmonizes property rights that arise at the national level, such as rights in intellectual property, rights in foreign investments, and security interests in personal property. Finally, it restricts property rights that may be recognized at the national level, such as rights in celestial bodies, contraband, and slaves. The second part of the book explores the thesis that a global right to property should be recognized as a general matter, not merely as a moral precept but rather as an entitlement that all nations must honour. It establishes the components of such a right, arguing that the right to property at the international level should be seen in the context of five key components of ownership: acquisition, use, destruction, exclusion, and transfer. This highly innovative book makes an important contribution to how we conceptualize the protection of property and to the understanding that much of this protection now takes place at the international level.

September 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

What If the Population of Your Town Grew Ten-fold in Six Years?


It's happening in parts of North Dakota.  A great read from the Atlantic:

The Bakken oil boom has brought rapid growth to many towns and cities in western North Dakota, including Williston, north of the Missouri River, and Dickinson, alongside Interstate 94. But Watford City, where the population has jumped from just 1,400 people six years ago to more than 10,000 today, has experienced a particularly dramatic shift in character. [...]

As the boom becomes big business, the question for those arriving to work and live in Watford City is what kind of home the place will become. So far, housing is often too hard to find or too expensive to afford. A two-bedroom trailer, for example, rents for $2,000 or more a month. So thousands of Watford City’s new residents—economic refugees from elsewhere in America—have brought camper-trailers with them. On the fringes of town, RV parks have sprung up on land that, only a year or two ago, was open pasture. Spots there go for more than $600 a month, even during the winter when hoses freeze and families take to using trash cans as toilets.

September 9, 2014 | Permalink | Comments (1) | TrackBack (0)

Turner et al. on the Value of Zoning

Matthew Turner (Brown - Econ), Andrew Haughwout (Fed. Reserve Bank - New York) , and Wilbert Van der Klaauw (Fed. Reserve Bank - New York) have published Land Use Regulation and Welfare (Econometrica).  Here's the abstract:

We evaluate the effect of land use regulation on the value of land and on welfare. Our estimates are based on a decomposition of the effects of regulation into three components: an own-lot effect, which reflects the cost of regulatory constraints to the owner of a parcel; an external effect, which reflects the value of regulatory constraints on one’s neighbors; a supply effect, which reflects the effect of regulated scarcity of developable land. Using this decomposition, we arrive at a novel strategy for estimating a plausibly causal effect of land use regulation on land value and welfare. This strategy exploits cross-border changes in development, prices, and regulation in regions near municipal borders. Our estimates suggest large negative effects of regulation on the value of land and welfare in these regions.

September 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, September 8, 2014

Conference Announcement: Property Law and Social Morality

The Journal of Real Property Law invites you to its 4th annual symposium,

“A Review: Peter Gerhart’s Property Law and Social Morality,”

at Texas A&M University School of Law


on October 24, 2014 from 8:00 A.M. - 2:00 P.M.

CLE Credit Pending

This symposium is dedicated to Peter Gerhart’s development of a single theory to ex- plain the relationship between common and private property and how that relationship is defined by social customs. The symposium will address both the theoretical underpinnings of Gerhart’s work and the real-world application of the ideas Gerhart sets forth. Substantive ideas shall include but are not limited to, nuisance law, environmental regulation, and the takings power.

Panelists Include:


The law school is honored to welcome these panelists, as well as Tony Buzbee, Esq., Managing Partner of The Buzbee Law Firm in Houston, TX, and member of the Texas A&M University Board of Regents, who will deliver the symposium’s keynote address.

September 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Journal Announcement: Journal of Law, Property, and Society

The Association for Law, Property and Society (“ALPS”) has launched a new journal, the Journal of Law, Property, and Society (“JLPS”).  The first article is Joe Singer’s Titles of Nobility:  Poverty, Immigration, and Property in a Free and Democratic Society.  It is available here:
 The JLPS is published on-line for free and open access by ALPS.  At this time, the JLPS does not accept submissions. As a reminder, ALPS will hold its 6th Annual Meeting at the University of Georgia on May 1-2, 2015.  For more information, check out the ALPS website:

September 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Foster & Boyack on Condo Foreclosures

Will Foster (Arkansas) & Andrea Boyack (Wasburn) has posted Muddying the Waterfall: How Ambiguous Liability Statutes Distort Creditor Priority in Condominium Foreclosures (Arkansas Law Review) on SSRN.  Here's the abstract:

Intentionally or not, every state’s law regarding lien priority and post-foreclosure liability allocates risk between mortgage lenders and privately governed “common interest communities” (CICs), such as condominiums. When lenders secure their interests with mortgages on property within a CIC, the mortgages may compete against the CIC’s interests for primacy in the lien hierarchy. Modern state regimes typically delineate the respective rights of mortgagees and CIC associations according to lien-priority statutes. Older condominium-enabling statutes, however, do not address CIC lien priority directly and speak only to continuing joint and several liability for subsequent purchasers. These older and more ambiguous statutes do not indicate how state law intended to — or should — balance the competing interests of mortgage lenders and community associations. Today, these vague statutes present important and politically charged issues that merit legislative consideration and clarification. Furthermore, recent case law demonstrates that a plain-meaning construction of such an un-clarified statute can produce an outcome that is wrong as a matter of law and unwise as a matter of policy.

This article examines the problems of vague statutory provisions regarding assessment obligations and their effect on lien priority. It advocates for judicial interpretations that focus on the purposes and intent of these provisions while upholding basic lien-priority law, and it urges legislative clarification of the existing language.

September 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, September 5, 2014

The Housing Situation in Ferguson

The New York Times takes a good long look at the housing market in Ferguson, site of the tragic shooting of Michael Brown:

Six years after the height of the financial crisis, the housing market in Ferguson remains particularly troubled. Fifty percent of the town’s 6,321 homeowners owe more on their mortgages than their homes are worth, a situation called being underwater. Nationally, 17 percent of homeowners are underwater. [...]

Ferguson’s slow recovery has created an opening for dozens of investment firms, flush with cash, to descend, buy up homes and rent them to mostly low-income residents. The firms account for roughly a quarter of home purchases in Ferguson, according to RealtyTrac.  The institutional money has meant a decline in the number of vacant homes and an increase in rental properties, but it has also raised concerns about the long-term intentions of these mainly out-of-town landlords and whether they will upgrade Ferguson’s aging housing stock. [...]


September 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Arruñada on the Titling Role of Possession

BenitoBenito Arruñada (Universitat Pompeu Fabra) has posted The Titling Role of Possession on SSRN.  Here's the abstract:

This paper proposes two hypotheses on the publicity requirement and the limitations of possession to provide information for legal titling. It then tests these hypotheses by examining how legal systems deal with possession in movable and immovable property, and comparing actual and documentary possession. It concludes that exercise of possession is effective as a titling mechanism when it is observed by independent parties, thus providing publicity and verifiability of titling-relevant elements. However, given that possession is only effective to inform about a single in rem right, direct and automatic reliance on possession for titling requires that all other rights be diluted to in personam status or be burdened by the possessory in rem right. In any case, public knowledge of possession, either in its delivery and/or its exercise, is essential for possession to play a public titling function. Similarly, documentary possession is only effective as a public titling mechanism in the absence of multiple rights in rem.

September 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

What Happens to Holdouts?


Slate recently put up a short piece that property profs will love.  It's the story of Edith Macefield, who refused to sell her home to a developer in Seattle.  Most of the article focuses on the aftermath of Edith's decision to resist a very lucrative offer:

Around 2005, a Seattle neighborhood called Ballard started to see unprecedented growth. Condominiums and apartment buildings were sprouting up all over the community, which had once been mostly single-family homes and small businesses. Around this time, developers offered Edith Macefield $750,000 for her small house, which was appraised at around $120,000. They wanted to build a shopping mall on the block where Macefield had lived for the past 50 years.

Macefield turned down the money. Developers went forward with the shopping mall anyway. The mall enveloped her house on three sides.

September 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

Conference Announcement: Planning, Law and Property Rights


The International Academic Association on Planning, Law, and Property Rights (PLPR) attracts academics in spatial planning, land-use and property law, real estate or related disciplines from all parts of the world (learn more about PLPR on and explores urban issues, legislative frameworks, and land ownership.

Planning matters. Law matters. Property matters.

Three simple messages inspiring the growing PLPR community to examine the difficult relationship between public and private interests in the use of land.

The Academic Association's functions aim at:

·      Serving as an academic peer group for research in the field. To promote research with a cross-national comparative perspective so as to enable exchange of knowledge that is so lacking in the current state of research.

·      Exchanging approaches and methods in the teaching of planning law to planning students.

·     Supporting young academics researching in the fields of planning, law, and property rights.


The conference will be held at the Department of Planning and Regional Development (DPRD) of University of Thessaly located in Volos (Greece) on 25-27 February 2015.

Call for abstracts/papers

Abstract submission starts on 1st September 2014 and ends on 13 October 2014.
PLPR 2015 Conference welcomes any topic based on theoretical analysis, research and/or practice related to planning and law, property rights on land, real estate studies, or planning and regulatory instruments. We welcome contributions from scholars and practitioners in planning, law, real estate and related economic issues, and we especially encourage graduate students working on topics within this realm to submit their abstracts. Indicative topics of the invited contributions can be the following:

Urban planning and development, urban regeneration
Environmental planning & sustainable development
Housing and building regulations
Governance, public participation and planning law
Human rights and social justice
Climate change and planning law
Public/private sector and planning law
Property rights and the market
Cultural heritage protection

We warmly encourage initiatives for special sessions. Please check out the proposed special sessions so far at  
Professor Richard K. Norton (University of Michigan) will be in charge of a double-blind peer review for each submitted abstract. Once all abstracts have been reviewed, authors of accepted abstracts will be notified.

Authors must use the template provided by the conference. Abstracts should not exceed 400 words. Please also see instructions for the submission procedure at

Important deadlines
13/10/2014: Abstract submission  
15/12/2014: Early registration

More information
Additional information on the conference are available at the conference website:

September 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Manta & Wagner on Intellectual Property Infringement as Vandalism

Irina Manta (Hofstra) & Robert Wagner (CUNY - Business) have posted Intellectual Property Infringement as Vandalism on SSRN.  Here's the abstract:

Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft, and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. We argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison.

In addition to analyzing the natures of the various offenses, this Essay investigates the sanction regimes for different property violations and finds that not only are maximum statutory sanctions generally higher for intellectual property infringement than for vandalism and trespass, they are usually also higher than for theft. Bringing intellectual property infringement in line with property offenses, therefore, would actually surprisingly result in a lowering of sanctions.

September 3, 2014 | Permalink | Comments (0) | TrackBack (0)