PropertyProf Blog

Where is the Good Life to be Found?

Rod Dreher has recently published a book (to generally glowing reviews) about the death of his sister from cancer at age 42.  The book, The Little Way of Ruthie Leming, also centers on Dreher's decision to pack up his family from Philadelphia and move back to his hometown St. Francisville, La., a place of about 1,700 residents 30 minutes northwest of Baton Rouge.

After reflecting on the move and the experience of grieving for his sister, this is Dreher's advice:

[M]y advice would be to do your very best to root yourself in the community where you do live, and to do your best to stay there — achieving “stability” in the Benedictine sense. [...] The point is, you can live a very rooted life in Mill Valley, California or Portland, Oregon or NYC, as long as you commit to the place in a concrete way, and root yourself in the community, via church or synagogue, school, little league, or other “little platoons.” We should return to a definition of success as laid down by Ralph Waldo Emerson: “To leave the world a bit better, whether by a healthy child, a garden patch, or a redeemed social condition; To know even one life has breathed easier because you have lived. This is to have succeeded.”

But what do you do if [you] live in a place where just keeping up requires you to work crazy-long hours, and leaves little time for community life? I remember that my dad always got off at 4:30, which left him plenty of time for little league coaching and other things. [...]  Anyway, maybe the lesson is that the good life is not possible in the Philadelphia suburbs, or any place where in order to keep your head above water, your job has to own you and your wife, and it keeps you from building relationships. There are trade-offs in all things, and no perfect solution, geographical or otherwise. Thing is, life is short, and choices have to be made. It’s not that people living in these workaholic suburbs are bad, not at all; it’s that the culture they (we) live in defines the Good in such a way that choosing to “do the right thing” ends up hollowing out your life, leaving you vulnerable in ways you may not see until tragedy strikes.

Steve Clowney

Bunting on Property Rights as Conflict Resolution Mechanism

W.C. Bunting (ACLU) has posted Private Property Rights as War on SSRN.  Here's the abstract:

Part I embeds the famous Coase Theorem within a more general theoretical framework of property rights. The concept of a transfer principle is defined and the final allocation of property rights is derived as a function of this transfer principle. Also, transaction costs are defined in relation to the equilibrium allocation of property rights implied by a given transfer principle.

Part II models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to war/conflict, the following question is posed: if the pre-conflict common-use property right regime is socially-optimal, under what conditions will disputing parties fail to bargain around/settle the conflict? In addition to the explanations specifically identified by Professor Fearon, the present article offers an additional explanation evidenced in the institution of private property rights itself, and, in particular, state “Castle Doctrine” laws that permit the use of lethal force in defense of real property. Skeptical that participants in a capitalist market-based economy will voluntarily enter into socially-optimal cooperative arrangements regarding the joint use of private property rights, a role for the courts is suggested wherein de facto common property rights are established by rendering private property rights random/uncertain. Although possibly producing socially-suboptimal misallocations of the property right, this uncertainty weakens private property rights, reducing the expected spoils of costly conflict, and, in turn, creates an incentive for the parties to settle/cooperate. In this way, less secure claims to private property promote social cooperation.

Part III examines judicial/Coasian intervention versus legislative/Pigouvian intervention and argues that legislative/Pigouvian rulemaking fails to make use of the disputing parties’ privately-held information to the extent that political conflict, unlike legal conflict, is “settlement-impossible.”

Steve Clowney

Photos of Children From Around the World With Their Most Prized Possessions

Amanda Gorence highlights a photo-essay centered on children and their toys:

Shot over a period of 18 months, Italian photographer Gabriele Galimberti’s project Toy Stories compiles photos of children from around the world with their prized possesions—their toys. Galimberti explores the universality of being a kid amidst the diversity of the countless corners of the world; saying, “at their age, they are pretty all much the same; they just want to play.”

Steve Clowney

Was Marx Right?

Time magazine looks at the the resilience of the ideas of Karl Marx

With the global economy in a protracted crisis, and workers around the world burdened by joblessness, debt and stagnant incomes, Marx’s biting critique of capitalism — that the system is inherently unjust and self-destructive — cannot be so easily dismissed. Marx theorized that the capitalist system would inevitably impoverish the masses as the world’s wealth became concentrated in the hands of a greedy few, causing economic crises and heightened conflict between the rich and working classes. “Accumulation of wealth at one pole is at the same time accumulation of misery, agony of toil, slavery, ignorance, brutality, mental degradation, at the opposite pole,” Marx wrote.

A growing dossier of evidence suggests that he may have been right. It is sadly all too easy to find statistics that show the rich are getting richer while the middle class and poor are not.

Steve Clowney

Zacks on High Volume Foreclosure Firms

Dustin Zacks (King, Nieves & Zacks PLLC) has posted Robo-Litigation (Cleveland State) on SSRN.  Here's the abstract:

The recent housing crisis increased demand for attorneys to process foreclosures through state courts. This increase in demand was coupled with a desire for the fastest and cheapest legal services available. As a result, large foreclosure firms designed to handle an enormous number of foreclosure cases quickly and inexpensively evolved and flourished. During their ascendancy, these firms consistently generated complaints about their conduct, including questions about their ethical decision-making and about the veracity of the pleadings and documents they filed. Scholarly literature on the housing crisis, however, is largely devoid of commentary on ethical issues related to increased foreclosures.

This Article tracks the rise and fall of several notorious high volume foreclosure firms and examines the numerous instances of serious misconduct their attorneys and paralegals perpetrated. The Article accordingly examines the curiously muted reaction from state bar associations, judges, and state legislators.

The Article then proceeds to examine how these foreclosure firms differ in makeup from traditional large law firms. Notable characteristics of these foreclosure firms include lenders and servicers’ relentless demand for increased speed and low costs, lack of firm-specific capital at foreclosure law firms, and a factory-like atmosphere of legal practice. The Article concludes with an examination of three policy options to prevent another surge in attorney misconduct: changing ethical rules, improving ethical education, and increasing state bar association funding and authority.

Steve Clowney

Is a Wind Turbine a Nuisance?

From Volokh:

Wind turbines may be a promising low-carbon power source, but the communities in which they are sited do not always welcome them with open arms. Residents of the Forest hills subdivision in Washoe Valley, Nevada, were none to pleased when one of their neighbors planned to erect a wind turbine to power his home. They sued, alleging the 75-foot-tall turbine would constitute a nuisance, and won. While noting that “the aesthetics of a wind turbine alone are not grounds for finding a, nuisance,” the Nevada Supreme Court ruled that “a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value.” On this basis, the court upheld the lower court’s determination that the wind turbine would constitute a nuisance, and could be enjoined.

Steve Clowney

Hohmann on the Right to Housing

Jessie Hohmann (Cambridge) has posted The Right to Housing: Law, Concepts, Possibilities - Introduction (Book Chapter) on SSRN.  Here's the abstract:

This is the introduction to a monograph on the right to housing as a human right.

A human right to housing represents the law's most direct and overt protection of housing and home. Unlike other human rights, through which the home incidentally receives protection and attention, the right to housing raises housing itself to the position of primary importance. However, the meaning, content, scope and even existence of a right to housing raise vexed questions.

Drawing on insights from disciplines including law, anthropology, political theory, philosophy and geography, this book is both a contribution to the state of knowledge on the right to housing, and an entry into the broader human rights debate. It addresses profound questions on the role of human rights in belonging and citizenship, the formation of identity, the perpetuation of forms of social organisation and, ultimately, of the relationship between the individual and the state. The book addresses the legal, theoretical and conceptual issues, providing a deep analysis of the right to housing within and beyond human rights law. Structured in three parts, the book outlines the right to housing in international law and in key national legal systems; examines the most important concepts of housing: space, privacy and identity and, finally, looks at the potential of the right to alleviate human misery, marginalisation and deprivation.

The book represents a major contribution to the scholarship on an under-studied and ill-defined right. In terms of content, it provides a much needed exploration of the right to housing. In approach it offers a new framework for argument within which the right to housing, as well as other under-theorised and contested rights, can be reconsidered, reconnecting human rights with the social conditions of their violation, and hence with the reasons for their existence.

Steve Clowney

How Federal Tax Law is Changing the Fortunes of Co-op Shareholders

The New York Times reports on how a tax change has dramatically increased the value of some co-op shares:

Until 2007, a federal tax regulation known as the “80-20 rule” required that residential co-ops receive at least 80 percent of their gross income from their tenant-shareholders, and no more than 20 percent from other sources, like ground-floor rent for retail space. If they didn’t comply, buildings lost their legal status as co-ops and the tax benefits that come with it. As a result, buildings charged below-market rent for their commercial spaces or otherwise performed legal gymnastics to retain their status as co-ops.

When Congress relaxed the law, co-ops became free to charge more for their ground-floor stores. But it hasn’t been until recently that most buildings could take advantage of the rule change, because many of them had signed 10- or even 20-year leases that are only now expiring.

In neighborhoods like SoHo and along Madison Avenue, where retail rents are high, it has meant a windfall for some co-ops. [...] A lucrative ground-floor lease can add 10 percent or more to the value of an apartment, residential brokers say. A sprawling two-bedroom loft at 464 Broome Street in SoHo, for example, is in contract for $3.22 million, nearly 10 percent over its asking price, in large part because the listing not only offers no maintenance but provides its shareholders with $20,000 a year in income.

Steve Clowney

What Super-density Looks Like

Amazing photos from Hong Kong.

Steve Clowney

Sprankling on the Global Right to Property

John Sprankling (McGeorge) has posted The Global Right to Property (Columbia J. of Transnational Law) on SSRN.  Here's the abstract:

Does a right to property exist under international law? The traditional answer to this question is “no” ― a right to property can arise only under national law. But sweeping economic and political changes in recent decades have laid the foundation for recognizing a global right to property. Ideological opposition to property rights has faded with the end of the Cold War; China, Russia, and other socialist states have transitioned to market economies which are premised on private property; and the globalization of trade has enhanced international support for protecting property rights. Accordingly, it is appropriate to revisit the question.

This article challenges the conventional wisdom that a right to property can arise only under national law. It is the first legal scholarship to demonstrate that a right to property exists under international law, not merely as a moral precept but rather as an entitlement which all nations must honor. The existence of the global right to property is supported by three independent lines of analysis: conventional law; general principles of law; and customary international law.

Recognition of the global right to property has practical implications for the international legal system. It will ensure that the right is respected in proceedings before international judicial and arbitral tribunals. Over time, it will also contribute to building the legal framework for regulating property in the global commons, areas which are outside of the sovereign jurisdiction of any nation such as the high seas, outer space, and Antarctica.

Steve Clowney

Map of the Day: States Where You Can be Denied Housing Because of Your Marital Status

National Fair Housing Alliance has released a report today on "Modernizing the Fair Housing Act for the 21st Century."  The report highlights all the ways that landlords remain free to discriminate.  From the summary at the Atlantic Cities Blog:

Federal laws don't protect against housing discrimination on the basis of sexual orientation, gender identity, income source or marital status (whether or not you're married is a different question from if you have kids). Many states do this on their own. But a surprising number don't. Today, it's still possible for a landlord in Texas to refuse to rent you an apartment with your live-in girlfriend (married couples only!), for a property management company in Alabama to turn you away because you're gay or transgendered, or for a homeowner in Indiana to decline your application because your income (which is enough to cover your rent) comes from housing vouchers, child support or alimony.

Steve Clowney

Property Tax By State

TaxFoundation.org recorded property taxes throughout the United States for a three-year period ending in 2009, allowing taxpayers to examine average property taxes by county. Tax-Rates.org then took the information and calculated averages by state. Here's a list of the state average property tax, based on percentage of home value:

Alabama — 0.33 percent

Alaska — 1.04 percent

Arizona — 0.72 percent

Arkansas — 0.52 percent

California — 0.74 percent

Colorado — 0.6 percent

(More below the Jump)

Continue reading "Property Tax By State"

Alexander on the Moral Obligations Property Owners Owe to Future Generations

Greg Alexander (Cornell) has posted Unborn Communities on SSRN.  Here's the abstract:

Do property owners owe obligations to members of future generations? Although the question can be reframed in rights-terms so that it faces rights-oriented theories of property, it seems to pose a greater challenge to those theories of property that directly focus on the obligations that property owners owe to others rather than (or, better, along with the rights of owner). The challenge is compounded where such theories emphasize the relationships between individual property owners and the various communities to which they belong. Do those communities include members of future generations? This paper addresses these questions as they apply to a property theory that I have developed in recent work, a theory that we can call the human-flourishing theory of property.

The conclusion drawn here is that property owners do indeed owe moral obligations to future generations. But the scope of those obligations is restricted, certainly more so than some theorists, such as Jeremy Waldron, have claimed. Unlike Waldron, for whom such obligations are a matter of rights, I argue that the obligations that property owners owe to past generations are grounded on dependence. Specifically, I argue that if we expect fellow members of our communities in future generations to continue what I call the life-transcending projects that we began, then it is incumbent on us to provide that same background conditions that we enjoyed to those future generation community members to whom we transfer the responsibility of continuing or fulfilling our life-transcending projects. Moreover, as the distance between the living and the unborn increases, our obligations to future generational communities generally weaken. Our obligations to them are limited to the background conditions that enable them to continue the life-transcending projects transferred to them. These conclusions place me in an intermediate position between those who take a robust view of the obligations that the living owe to future generations and those who think that the living owe no such obligations at all.

Steve Clowney

Kansas Outlaws Sustainability (Or At Least Thinks About It)

Over at Land Use Prof, Jessie Owley highlights Kansas' attempt to rid the state of the scourge of sustainable development:

Politicians in Kansas . . . seem to have been contemplating the power of law to dictate sustainability rules. House Bill No. 2366 currently before the Kansas state legislature would make it illegal to use “public funds to promote or implement sustainable development." Frankly with the trouble surrounding just trying to define what should be considered "sustainable development," I am not sure how meaningful such a law would be -- put gotta appluad tease Kansas for trying. As a professor at a public school, I find the provision restricting the teaching of sustainability to be especially worrisome [no public funding can be used for "materials prepared or presented as part of a class, course, curriculum or instructional material"].

Next thing you know, states will be outlawing climate change.

Steve Clowney

Davidson on New Formalism in the Aftermath of the Housing Crisis

Nestor Davidson (Fordham) has posted New Formalism in the Aftermath of the Housing Crisis (Boston University Law Review) on SSRN.  Here's the abstract:

The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and the like – signal renewed formality in nearly every aspect of the resolution of mortgage distress. This new formalism in the aftermath of the housing crisis represents something of an ironic turn in the jurisprudence. From the earliest history of the mortgage, lenders have had a tendency to invoke the clear, sharp edges of law, while borrowers in distress have often resorted to equity for forbearance. The post-crisis caselaw thus upends the historical valence of lender-side formalism and borrower-side flexibility.

Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.

Steve Clowney

Places of Perpetual Fire

Slate profiles the "Door to Hell" in Derweze, Turkmenistan:

In 1971 a Soviet drilling rig rumbled across the hot, expansive Karakum desert of Turkmenistan in search of natural gas. They found a large gas pocket near the 350-person village of Derweze, but as the team drilled into the earth, the rig punctured the cavern and collapsed into it, creating a 328-foot crater leaking deadly natural gas. The Soviets abandoned their rig and lit the hole on fire. It has been burning for 40 years.

The article also lists these other places of neverending fire:

• Centralia, the Pennsylvania town sitting atop a massive coal fire
• Burning Mountain, the 6,000-year-old coal fire that moves one meter per year
• Yanar Dag, the "fire mountain" of Azerbaijan

Steve Clowney

Davidson on Navigating HUD Programs

Nestor Davidson (Fordham) has posted A Most Useful Ball of Thread (Journal of Affordable Housing & Community Development) on SSRN.  Here's the abstract:

This book review of Navigating HUD Programs: A Practitioner’s Guide to the Labyrinth (George Weidenfeller & Julie McGovern eds., 2012) discusses the approach the book takes to a range of HUD programs, discusses some intimations of reform efforts suggested by the authors, and explores ways in which the book’s guidance reflects potential benefits in nascent HUD efforts at programmatic consolidation and modernization.

Steve Clowney

Can the Dead Own Property?

Over at Concurring Opinions, Meredith Render meditates on death and meaning of ownership:

Herein enters the perennial problem of death. When an owner is a natural person (rather than, for example, a corporation), then death would seem to present an obstacle to owning. When an owner dies, her capacity to make decisions about the use of an entity is terminated. Unlike in the newborn example, that capacity is not dormant, it is extinguished forever. If the capacity to exercise control over an entity is a necessary criterion of ownership, we would not expect deceased people to be capable of ownership. This intuition is supported by the fact that generally when an owner dies, the object of ownership passes (by will or intestate succession) to another owner. In this instance, there is no continuity of “ownership” – the new owner does not act on the behalf of the deceased owner – the ownership simply ends with the owner.

A notable exception to this scenario exists in the context of trusts. A trust presents challenge to our conventional understanding of “ownership,” – and particularly to the idea of ownership as a capacity. This is so not only because “ownership” is split in the context of a trust between equitable and legal owners, but also because some degree of control over the trust assets seems to be retained by the settlor. In this sense, the settlor seems to continue to act as a kind of “owner” of the assets, even though the settlor may be deceased. This phenomenon is sometimes referred to as “dead hand control.” Lately I’ve been thinking about this phenomenon in the context of the commitments implicit in our concept of “owner.” The interplay of these ideas is especially interesting in the context of what is sometimes described as a “dynasty trust.” A dynasty trust has the potential to endure into perpetuity, long after the settlor is deceased. I’ll be posting more on dynasty trusts, death and the concept of “owner” in the weeks to come.

Steve Clowney

Mossoff on Copyright and Scholarly Publishing

Adam Mossoff (George Mason) has posted How Copyright Drives Innovation in Scholarly Publishing on SSRN.  Here's the abstract:

Today, copyright policy is framed solely in terms of a trade off between the benefits of incentivizing authors to create new works and the losses from restricting access to those works. This is a mistake that has distorted the policy and legal debates concerning the fundamental role of copyright within scholarly publishing, as the incentive-to-create conventional wisdom asserts that copyright is unnecessary for researchers who are motivated for non-pecuniary reasons. As a result, commentators and legal decision-makers dismiss the substantial investments and productive labors of scholarly publishers as irrelevant to copyright policy. Furthermore, widespread misinformation about the allegedly “zero cost” of digital publication exacerbates this policy distortion.

This paper fills a gap in the literature by providing the more complete policy, legal and economic context for evaluating scholarly publishing. It details for the first time the $100s millions in ex ante investments in infrastructure, skilled labor, and other resources required to create, publish, distribute and maintain scholarly articles on the Internet and in other digital platforms. Based on interviews with representatives from scholarly publishers, it reveals publishers’ extensive and innovative development of digital distribution mechanisms since the advent of the World Wide Web in 1993. Even more important, this paper explains how these investments in private-ordering mechanisms reflect fundamental copyright policy, as copyright secures to both authors and publishers the fruits of their productive labors. In sum, copyright spurs both authors to invest in new works and publishers to invest in innovative, private-ordering mechanisms. Both of these fundamental copyright policies are as important today in our fast-changing digital world as they were in yesteryear’s world in which publishers distributed scholarly articles in dead-tree format.

Steve Clowney

Are Pocket Neighborhoods The Next Big Thing?

A pocket neighborhood is a grouping of smaller residences, often built around a common courtyard, designed to promote a heightened sense of community and neighborliness.  In the last few months, they've gotten good press on the Huffington Post, the Atlantic Citites Blog, and Yahoo.  From the Yahoo story:

Who likes pocket neighborhoods? [Architect Ross Chapin] argues that we’re all drawn, as social creatures, to community. But in the 15 years since he first developed pocket neighborhoods he’s found a few groups who really identify with the idea.

“One is the baby boomers, as they move toward retirement,” Chapin said. “We’re seeing huge numbers of people who are trying to imagine their dream home for the next part of their life. A house that’s big enough but not too big, simpler and where the key notes are quality and community.” Other groups include active single women as well as echo-boomers — the 20- and 30-somethings trying to define their idea of the dream home.

Steve Clowney