PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Monday, January 11, 2016

Wahi on The Fundamental Right to Property in the Indian Constitution

Namita-wahiNamita Wahi (Harvard - Fellow) has posted The Fundamental Right to Property in the Indian Constitution on SSRN.  Here's the abstract:

The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished in 1978. Unlike other rights of life, liberty, and equality that can at least theoretically be conceived as applying equally to all, the especially contentious nature of the right to property arises because the protection of property rights inevitably results in entrenching unequal distributions of existing property entitlements. This chapter narrates the evolution of the fundamental right to property in the Indian Constitution, and outlines the chequered trajectory of its doctrinal development, following the First (1951), Fourth (1955), Seventh (1956), Seventeenth (1964), Twenty-Fourth (1971), Twenty-Fifth (1972), Twenty-Sixth (1972), Twenty-Ninth (1972), Thirty-Fourth (1974) and Thirty-Ninth (1975) constitutional amendments. The Forty Fourth Constitutional Amendment, 1978, deleted Articles 19(1)(f) and 31 from Part III, the chapter on Fundamental Rights in the Constitution. Instead, it inserted Article 300A in a new chapter IV of Part XII of the Constitution, thereby depriving the ‘right to property’ of its ‘fundamental right’ status. However, in the last five years, there have been attempts made judicially to restore the right to its fundamental right status, as it existed before the Forty Fourth amendment. Simultaneously, the requirements of ‘public purpose’ and ‘compensation’ have been strengthened legislatively through the repeal and replacement of the Land Acquisition Act 1894 by the LARR Act 2013. The LARR Act’s amendment by the thrice promulgated LARR Amendment Ordinance within a year of its enactment, and yet the inability of the government to garner parliamentary support to pass the LARR Amendment Bill, 2015, into law, testifies to the intense social and political contestation around the contours of the right to property, both as a legal and constitutional right.

The paper argues that the trajectory of the right to property in the Constitution, as seen from the drafting of the original constitutional property clause, and its evolution through judicial interpretation, legislation, and constitutional amendment, demonstrates the Indian State’s continual attempts to reshape property relations in society to achieve its goals of economic development and social redistribution. Each iteration of the property clause favoured property rights of certain groups and weakened those of others and was the product of intense contestation between competing groups that used both the legislature and the judiciary to further their interests. Concomitantly, lurking behind the development of the Supreme Court’s doctrinal jurisprudence is the Court’s fear of arbitrariness of State action. Almost all of the property cases also involved a challenge on grounds of the equality guarantee in Article 14, and in a majority of these cases, the impugned law was invalidated for violating the right to equality and not the right to property.

January 11, 2016 | Permalink | Comments (0)

Saturday, January 9, 2016

Map of the Day: The World's Favorite Porn Categories

Pornhub, the largest pornography site on the Internet, has just released its annual analysis of global viewing habits.  The accompanying article includes a ton of weird information and is certainly worth a gander if you're the kind of person that enjoys the seedier side of humanity.  There's no naughty pictures in the piece, but I probably wouldn't recommend reading it at work. Here's the link.  Most importantly for this site, Pornhub published a map that shows each country's favorite porn category.  I'm putting it below the jump, since the map includes some off-color terms.  In case you were wondering, Wikipedia defines "Hentai" as a subgenre of the Japanese cartoons, characterized by overtly sexualized characters and sexually explicit images and plots.

Continue reading

January 9, 2016 | Permalink | Comments (0)

Rothstein & Rothstein on the How Genetics Might Affect Real Property Rights

Mark Rothstein (Louisville - Bioethics) and Laura Rothstein (Louisville) have posted How Genetics Might Affect Real Property Rights (Journal of Law, Medicine and Ethics) on SSRN.  Here's the abstract:

New developments in genetics could affect a variety of real property rights. Mortgage lenders, mortgage insurers, real estate sellers, senior living centers, retirement communities, or other parties in residential real estate transactions begin requiring predictive genetic information as part of the application process. One likely use would be by retirement communities to learn an individual's genetic risk for Alzheimer's disease. The federal Fair Housing Act prohibits discrimination based on disability, but it is not clear that it would apply to genetic risk assessments. Only California law explicitly applies to this situation and there have been no reported cases.

January 9, 2016 | Permalink | Comments (0)

McLaughlin on Valuing Conservation Easements

MclaughlinNancy McLaughlin (Utah) has posted Conservation Easements and the Valuation Conundrum (Florida Tax Review) on SSRN.  Here's the abstract:

For more than fifty years, taxpayers have been able to claim a federal charitable income tax deduction under Internal Revenue Code § 170(h) for the donation of a conservation easement or a façade easement. For just as long, the deduction has been subject to abuse, including valuation abuse. Dismayed by the expenditure of significant judicial and administrative resources to combat abuse in the easement donation context, the Treasury Department recently proposed reforms, including reforms to address valuation abuse. The reforms were proposed in somewhat of an analytical vacuum, however, because there has been no comprehensive analysis of the easement valuation case law. This article fills that void. It examines the easement valuation case law and discusses the most common methods by which taxpayers or, more precisely, their appraisers overvalue easements. It also proposes alternative reforms informed by the lessons learned from the case law. Concise summaries of the relevant facts and holdings of the cases are included in appendices.

January 9, 2016 | Permalink | Comments (0)

Monday, January 4, 2016

Buyers Often Shun Houses That Were Crime Scenes

The Pittsburgh Post-Gazette has a lengthy piece about the reality of selling homes that were the site of grisly crimes: 

When a murder — or even a natural death — occurs inside a home, it can traumatize a neighborhood. Beyond that, it can create a significant and understandable challenge when it comes time to sell.

The effect is exacerbated when the death is a highly publicized event. Not only is the home itself affected but, according to personal finance comparison website, homes within a four-block radius can lose tens of thousands of dollars in value up to a year after the homicide takes place. It’s a delicate issue for both home buyers and sellers. estimates the U.S. housing market lost $2.3 billion in value in 2014 due to homicides. Pennsylvania homes with a median value of $150,000 lost an average of $5,909 due to 609 homicides that year. The Pittsburgh area, which had 71 homicides in 2014, is estimated to have lost an average $4,646 in home value in areas where homicides occurred.

January 4, 2016 | Permalink | Comments (2)

Huber on The Fair Market Value of Public Resources

HuberBruce Huber (Notre Dame) has posted The Fair Market Value of Public Resources (California Law Review) on SSRN.  Here's the abstract:

Government agencies and officials are regularly criticized for selling public assets at a loss. Such criticisms arise in a host of contexts, ranging from sales of real estate and natural resources to sales involving intangibles, such as the right to broadcast over the airwaves or to operate a toll road or a set of parking meters. Underpriced resource sales prompt concerns that a small set of private entities are unjustly enriched by transactions that should properly benefit the public as a whole.

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars’ worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more difficult to implement and enforce. This Article analyzes the various forces that bear on public resource transactions and details the problems that continue to plague these transactions, explaining why federal institutions are commonly unable to satisfy the fair market value standard. It argues that natural resource law should invoke procedural safeguards to protect against the undue influence of incumbent resource users and assure the public a fair return on resource sales. In so doing, it sheds light on how public institutions deal in the marketplace and how public ownership affects the value of property.

January 4, 2016 | Permalink | Comments (0)

Kochan on Marijuana-Related Land Use Con

Kochan_DDonald Kochan (Chapman) has posted Incumbent Landscapes, Disruptive Uses: Perspectives on Marijuana-Related Land Use Control (Journal of Property Law) on SSRN.  Here's the abstract:

The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.

This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple with the fact that many jurisdictions are embracing a type of “legality innovation” regarding marijuana. I define “legality innovation” as that effect which begins with the change in law that leads to the development of the lawful relevance of, lawful business regarding, and legal use for a newly-legal product, the successful deployment of which depends on the relative acceptance of the general public which must provide a venue for its operations along with the relative change in the consuming public’s attitudes as a result of the introduction of legality.

Marijuana-related land uses are and will be controversial. Regulatory responses, neighborhood disputes, permit battles, and opposition coalitions are all predictable both as a matter of logical analysis in light of legal standards but also, very importantly, due to the lessons of history with similarly-situated, precursor land uses like liquor stores, adult entertainment, bars, nightclubs, massage parlors, and the like leading the way. The Article also discusses the role of incumbent interests groups in shaping the new marijuana-related regulatory structure, including revealing Baptist and bootlegger coalitions that exist to oppose relaxation of marijuana laws and thwart land use successes of the marijuana industry in order to maintain their incumbent value or profit position. Finally, the Article engages with the growing literature in the social sciences on place and space, examining how the spaces and places we inhabit and in which we conduct our business and social affairs are necessarily impacted whenever legality innovations like we are seeing with marijuana work to disrupt the incumbent landscape.

January 4, 2016 | Permalink | Comments (0)

Wednesday, December 30, 2015

Columbia University is a Real Estate Mogul

The Columbia Spectator takes a look at the University's real estate holdings, which are extensive:


December 30, 2015 | Permalink | Comments (0)

Lehavi on Comparative Condominium Governance

LehaviAmnon Lehavi (ICH - Radzyner) has posted Law, Collective Action and Culture: Condominium Governance in Comparative Perspective (Asia Pacific Law Review) on SSRN.  Here's the abstract:

Condominium law reforms are taking place at a growing pace around the world. Such reforms raise particular challenges in transitional economies, in which the need to create the legal infrastructure for multiunit, homeownership-based housing follows complex processes of urbanisation and a transition to some form of a market economy.

This article focuses on one of the key challenges of such reforms, that which deals with the ability of homeowners to engage in effective and enduring self-governance of the condominium through the establishment of a homeowner association (‘HOA’). In crafting the legal mechanisms that enable condominium governance, lawmakers have an essential normative role of determining the underlying societal values and goals that should guide this type of collective action. At the same time, for such a legal design to be effective, lawmakers must consider the actual congruence between the types of collective action envisioned by the reform and the prevailing cultural orientations, values and beliefs that practically guide everyday interactions in a certain society or parts thereof.

Working through the theoretical framework of law, collective action and culture, this article offers a comparative study of condominium law reforms and their subsequent on-the-ground implementation in two prominent economies in transition: China and Russia. It compares these case studies with the development of condominium governance in the United States, seeking to underscore the dynamic relations between private law reforms, collective-action organisations and the prospects for incremental cultural change.

December 30, 2015 | Permalink | Comments (0)

Nelson on Civil Forfeiture and the Constitution

Nelson_calebCaleb Nelson (UVa) has posted Civil Forfeiture and the Constitution (Yale Law Journal) on SSRN.  Here's the abstract:

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property instantly passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government’s assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this paper cautions originalists not to assume that they are unconstitutional. The paper concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here—the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.

December 30, 2015 | Permalink | Comments (0)

Monday, December 28, 2015

Charter School Sues Abortion Protesters


A land use dispute between a charter school and protesters targets a nearby Planned Parenthood Clinic:

Leaders at a public charter school in Northeast Washington filed a lawsuit Wednesday against antiabortion protesters who they say are harassing students in their efforts to stop construction of a Planned Parenthood facility next door.

Two Rivers Public Charter School alleges in a complaint filed in D.C. Superior Court that the protesters have engaged in “extreme and outrageous conduct” during the past several months, targeting schoolchildren as young as 3 with gruesome images of aborted fetuses and messages about the “murder facility” going in next to their school. The school is asking the court to order protesters not to talk to the schoolchildren or approach them outside the school.

[...] The lawsuit alleges that the protesters are intentionally inflicting emotional distress and that they are a private nuisance; the school wants to keep protesters away from students and from the entrance to the school during arrival and dismissal times. It also asks that protesters refrain from showing posters with graphic images or words such as “kill” and “murder” in a “manner reasonably likely to be viewed by children under 12 years of age.”

You can read the complaint here.

December 28, 2015 | Permalink | Comments (0)

Ruple & Keiter on Public Lands and Mineral Revenue

John Ruple (Utah) & Robert Keiter (Utah) have posted When Winning Means Losing: Why a State Takeover of Public Lands May Leave States Without the Minerals They Covet on SSRN.  Here's the abstract:

This White Paper, the third in a series assessing state efforts to take over federal public lands, addresses state claims to the minerals underlying those lands. Using Utah as an example, we argue here that even if states overcome extremely long odds to convince a court that the federal government is obligated to dispose of more public land, and that such a disposal obligation necessitates giving the public domain to the states, well established legal principles would prevent grants of most mineral lands to the states. Moreover, any mineral rights that states did obtain would be realized only after years of costly site-specific litigation — litigation above and beyond that required to test the validity of their efforts to compel disposal. Mineral title is important because Utah’s best, and perhaps only, hope of covering management costs involves mineral development. Indeed, during 2013, federal mineral leasing (primarily oil, natural gas, and coal) produced 93-percent of all revenue derived from the targeted public lands. Taking on the management of millions of acres of new land without simultaneously securing a source of funding to fulfill those obligations would be contrary to the state’s best interests.

December 28, 2015 | Permalink | Comments (0)

Leckey on Property Disputes Between Cohabitants

LeckeyRobert Leckey (McGill) has posted Cohabitants, Choice, and the Public Interest (Book Chapter) on SSRN. Here's the abstract:

Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions – such as what people who live together should owe one another and the balance between choice and protection – through a lens of legal attention to institutional matters such as legal sources and the respective roles of judges and legislatures. The examples used are Canadian cases on unjust enrichment and English cases quantifying beneficial interests in cohabitants' jointly owned home. A major theme is the limits on judicial law reform in the face of social change, both in substantive scope and in the capacity to acknowledge the state’s interest in intimate relationships. The chapter aims to relativize the focus on choice so prominent in academic and policy discussions of cohabitation and to highlight the character of family law, entwined with the general private law of property and obligations, as a regulatory system.

December 28, 2015 | Permalink | Comments (0)

Saturday, December 26, 2015

Mulvaney on Legislative Exactions and Progressive Property

Mulvaney_tim2Timothy Mulvaney (Texas A&M) has posted Legislative Exactions and Progressive Property (Harvard Environmental Law Review) on SSRN.  Here's the abstract:

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests that distinguishing between legislative and administrative measures in this context could produce several second-order consequences that actually undercut the goals of progressive property theory.

December 26, 2015 | Permalink | Comments (0)

Friday, December 25, 2015

Happy Holidays!

Happy Christmahanakwanzika from my family to yours!



December 25, 2015 | Permalink | Comments (0)

Wednesday, December 23, 2015

Ten Reasons You Should Register for ALPS 2016


1.  The Association for Law, Property and Society (ALPS) hosts the world's best annual property conference.  The audience is friendly, the papers cover a great range of subjects, and the conference if full of fun people. 

2.  This year the conference is in Belfast, Northern Ireland.

3.  Belfast is awesome.  They even film Game of Thrones there.

4.  You can get to Belfast from New York in six hours. 

5.  The panels will all take place at Queen's College.  Queen's College is beautifulAnd historic.

6.  This year's host is professor Robin Hickey.  Robin is the world's leading expert on Armory v Delamirie (and the law of finders more generally).  If you have a question about finders, chimney sweeps, or jewels - he will answer them.  

7.  This almost goes without saying

8.  You could go surfing.

9.  I'll be presenting a paper, tentatively titled "Paintings, Prostitutes, and Popes: Some Thoughts on the Commodification of Sacred Goods."  It's going to be awesome.

10.  Registration is easy.  You should do it now.

December 23, 2015 | Permalink | Comments (0)

Tuesday, December 22, 2015

Blumm & Thiel on Groundwater

Michael Blumm (Lewis & Clark) & Steven Thiel (Lewis & Clark) have posted (Ground)Waters of the United States: Unlawfully Excluding Tributary Groundwater from Clean Water Act Jurisdiction (Environmental Law) on SSRN.  Here's the abstract:

The controversial 2015 federal rule defining “waters of the United States” - the jurisdictional determinant for regulation under the Clean Water Act (CWA), now the subject of numerous lawsuits - has been attacked largely for its alleged federal overreaching. Actually, the rule is under inclusive, for it categorically exempted all groundwater from CWA regulation. We think this exclusion conflicts with the purposes, terms, and judicial interpretations of the statute - including those of the Supreme Court - all of which have consistently interpreted the jurisdictional scope of the statute on the basis of a “significant effects” test, not an unscientific pronouncement based on administrative convenience. We explain the case for inclusion of tributary groundwater in this Article, even though the impending litigation over the rule is unlikely to address the issue.

December 22, 2015 | Permalink | Comments (0)

Miller on Financing Local Food Factories

  Miller-stephenStephen Miller (Idaho) has posted Financing Local Food Factories (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

This Article seeks to change how local food is conceived in terms of financing. This unusual approach could yield several important benefits, first among them being that large-scale local food production in urban areas could become more common. Part I of this Article explores the reasons why massive alternative urban agricultures are necessary now: the difficulties associated with feeding a rapidly growing, and rapidly urbanizing, population. Part II explores one particular massive alternative urban agriculture, the vertical farm. By focusing on the vertical farm, the importance of financing as a critical component in growing local food is brought into focus. In Part III, the Article first explores the example of financing for what is proposed to be the nation’s largest vertical farm, AeroFarms, in Newark, New Jersey, which illustrates how creative financing can facilitate massive alternative urban agricultures. The Part then considers how several types of existing — and potential — financing could be deployed in a manner modeled on economic development agreements typically used for factories and other manufacturing uses to advance the cause of local food. By viewing local food as a finance problem, and in particular a finance problem similar to that of urban manufacturing, the prospects for significantly scaling up the production of local food, and perhaps even disrupting agricultural production as it has been practiced for millennia, begins to take shape.

December 22, 2015 | Permalink | Comments (0)

Friday, December 18, 2015

Richardson on Reframing Ameliorative Waste

SrichardsonSally Richardson (Tulane) has posted Reframing Ameliorative Waste (American Journal of Comparative Law) on SSRN.  Here's the abstract:

Tension arises when two individuals have a property interest in the same thing, particularly when those interests span different time periods. Divided ownership gives rise to the possibility that individuals with different interests will have different opinions regarding how that property should be used. Property law must thus determine which interest holder’s preferences should be honored. The doctrine of waste is one means by which the law attempts to govern multiple interest holders’ rights.

This article addresses the most controversial form of waste — ameliorative waste — which occurs when the current interest holder, without the consent of the future interest holder, makes a material alteration to the property and that alteration increases the market value of the property. Most modern American commentators and courts examine ameliorative waste from an economic perspective, focusing on changes in the property’s valuation. In stark contrast, the analytical framework for similar questions under Roman law, early common law, and modern civil law systems centers around the type of alteration involved. Each side of this dichotomous analysis views its rule as applying to all waste-creating situations, assuming that a one-size fits all approach creates just results for the many scenarios in which ameliorative waste arises.

This article compares and critiques both the value-based and the alteration-based approaches, and evaluates the merits of both frameworks. The article concludes that both approaches have substantial shortcomings and proposes an alternative framework that balances decision-making authority between the two interest-holding parties based on the particular context of their situation.

December 18, 2015 | Permalink | Comments (0)

Tait on Property Divisions in Same-Sex Divorces

TaitAllison Tait (Richmond) has posted Divorce Equality (Washington Law Review) on SSRN.  Here's the abstract:

The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution — marriage as an economic partnership — in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.

Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself.

Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.

December 18, 2015 | Permalink | Comments (0)