PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Tuesday, July 29, 2014

How Big Cities That Restrict New Housing Harm the Economy

The Washington Post piles on the horrible land use regime in San Francisco (and the counter-productive protests against new luxury housing):

Here's the first point, for locals: New housing supply benefits the entire city, even if that new supply takes the form of luxury condos. Tenant activists have regularly objected to new luxury developments as just another sign of gentrification. But even if that housing is intended for high-income tech workers, it will take some pressure off the existing units that those tech workers have occupied at the expense of middle- and lower-income residents. In effect, this means that affordable housing advocates who want to block new high-end developments are simply making the city more expensive.

Here is Moretti's broader point, from some research he has been conducting with Chang-Tai Hsieh at the University of Chicago (h/t Tim Lee): By preventing more workers who would like to live in the city from moving in, San Francisco — and this also goes for New York, San Jose, Boston, Washington, D.C., and to a lesser extent Seattle — is holding back the U.S. economy from being as productive as it could be.

July 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Fischel on The Supreme Court's Supervision of Land-Use Regulation

William Fischel (Dartmouth - Econ) has posted From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation on SSRN.  Here's the abstract:

This is a preliminary chapter of my book in progress, tentatively titled The New Economics of Zoning Laws. This chapter selectively surveys court decisions on zoning over the past century. I offer new evidence on Nectow v. Cambridge (1927), the first case in which the US Supreme Court overturned a non-racial zoning ordinance. The Court got it wrong, at least by modern standards of review, because a master's report mischaracterized the history of the site and the purpose of zoning. The Court after Nectow has usually been deferential to state courts and local decisionmaking on land use, which I submit is appropriate given the Court’s lack of access to local knowledge. It has since 1987 insisted that the states not abandon the regulatory takings doctrine, but it has also put up substantial procedural barriers to moving cases into federal court. Its decisions create a modest price effect for local governments, which do not have to worry much about paying taxpayers’ money for a judgment unless their regulations leave no economically viable use or cause a physical occupation of the property. The Court’s departures from its deferential tradition have been in the exactions cases, most recently Koontz v. St. Johns River Water Management District (2013). These are economically questionable in that they appear to entrench existing regulations, thus lowering the opportunity cost of maintaining them. The decisions may, however, discourage governments from adopting regulations purely for the sake of obtaining general revenue. Zoning and related land-use regulations are highly popular institutions, though, so it seems unlikely that limiting the exactions process will discourage many of their excesses.

July 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Legal Pot vs. Homeowners’ Associations


The Associated Press looks at a growing source of tension:

Pot may be legal in some states – but the neighbors don’t have to like it.

Marijuana and hemp have joined wacky paint colors and unsightly fences as common neighborhood disputes facing homeowners associations. Though a few HOAs have willingly changed their rules to accommodate for legal marijuana use or home-growing, many more are banning home pot smoking.

Homeowners associations can’t ban members from using marijuana in their homes when it’s legal. But if neighbors can see or smell weed, the law is clear – HOAs have every right to regulate the drug as a nuisance, or a threat to children along the lines of a swimming pool with no fence.

“The fact that people may be legally entitled to smoke doesn’t mean they can do it wherever they want, any more than they could walk into a restaurant and light up a cigarette,” said Richard Thompson, who owns a management consulting company that specializes in condominium and homeowner associations.

Thompson said his home condo development in Portland is a prime example of how marijuana’s growing acceptance has sparked neighbor conflicts.

“As soon as spring and summer come around, we hear complaints about marijuana smoke because people are out on their patios and they have the windows down,” he said.

July 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Boyack on Common Interest Communities and Freedom of Contract

Boyack-andreaAndrea Boyack (Washburn) has posted Common Interest Community Covenants and the Freedom of Contract Myth (Brooklyn Journal of Law and Policy) on SSRN.  Here's the abstract:

Courts take a hands-off approach with respect to the content of common interest community (CIC) covenants, reasoning that freedom of contract mandates their enforcement. But CIC covenants differ from voluntary private contracts in important ways, making deferential enforcement in the name of contract policy unwarranted. Covenants that run with the land are specifically enforceable and bind subsequent owners of the property, potentially in perpetuity. Furthermore, CIC covenants are contracts of adhesion, made up of completely non-negotiable, recorded terms bundled into home acquisition. Developers and lenders generally prescribe the content of such covenants, and they may not reflect community desires or values. Contract analogy should not create presumptive validity for all CIC covenants and properly enacted rules. The reality of CIC governance is more complicated and implicates property and constitutional concerns as well as contract law. The proper approach to CIC governance review must draw from all three of these areas of the law. The subject matter scope of CIC governance should be limited based on servitude law principles. Constitutional protections should be legislated for members of CICs. And bona fide, deliberate assent should be prerequisite to holding owners bound to CIC obligations.

July 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, July 25, 2014

Famous Paintings You Can't Get on Loan


The Guardian has a fascinating article about the few artistic masterpieces that are considered either too fragile or too precious to loan to other museums:

Girl with a Pearl Earring thus joins the select band of art treasures that never see the outside world. Botticelli's Birth of Venus never leaves the Uffizi in Florence; Las Meninas by Velázquez stays put at the Prado in Madrid; Picasso's Guernica remains just down the road at the Reina Sofia museum; and his Demoiselles d'Avignon can only be seen at MoMA in New York.

Other sedentary art works include La Joie de Vivre by Matisse, Le Facteur Roulin by Van Gogh and Les Joueurs de Cartes by Cézanne, which are unlikely ever to leave the Barnes Foundation in Philadelphia. It is impossible for the Isenheim altarpiece to leave the Unterlinden museum in Colmar, or for Degas' Petite Danseuse de Quatorze Ans to escape from the National Gallery of Art in Washington DC. Needless to say, the Mona Lisa is under lock and key in the Louvre, Paris.

So why are all these famous pieces so stay-at-home? Predictably the principal reason is their state of health. Many of them, including the Mona Lisa, were painted on wood and are very sensitive to climatic changes, making travel a major worry.

July 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Mumme on Labor as a Commodity

MummClaire Mumme (Windsor) has posted Property in Labour and the Limits of Contract (Book Chapter) on SSRN. Here's the abstract:

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice.

This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individual’s proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employers rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract.

This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.

July 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

How Much is a Sand Dune Easement Worth?

The property owners thought a few hundred thousand dollars.  A jury awarded them $300:

A jury has awarded a Harvey Cedars couple just $300 as compensation for the borough's taking of land needed to build a sand dune and berm to protect against damage from storms such as Hurricane Sandy, state officials said today.

The ruling, made Friday by a panel in state Superior Court in Ocean County, paled in comparison to the $200,000 Victor and Carolyn Groisser sought for their land, in addition to $600,000 they sought in damages, the Attorney General's Office said.

The case was remanded for a new trial after the state Supreme Court ruled last year that property owners were not entitled to "a windfall" or "a payout that disregards the home’s enhanced value resulting from a public project," such as sand dunes.

The court held that such a value must be factored into the fair compensation equation.

"This jury's decision supports the state's position that protecting homes and entire communities is more important than individual ocean views," Bob Martin, commissioner of the state Department of Environmental Protection, said in a statement.

July 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Glicksman on Market-Based Environmental Programs

GlickRobert Glicksman (George Washington) has posted Regulatory Safeguards for Accountable Ecosystem Service Markets in Wetlands Development (Kansas Law Review) on SSRN.  Here's the abstract:

The use of environmental markets creates the potential for achieving environmental protection goals more efficiently than traditional regulation is capable of doing. Past experience with emissions trading programs and other forms of environmental markets that operate in conjunction with traditional regulatory programs, however, illustrates the risks that accompany reliance on market-based strategies. In particular, participants in environmental regulatory markets have in some instances manipulated them to enhance private gain while undercutting public environmental objectives. Using the wetlands mitigation component of the federal Clean Water Act’s dredge and fill permit program as an example, this essay recommends that market-based environmental programs incorporate five different types of safeguards to promote the accountability of both market participants and the agencies supervising the operation of those programs. Reliance on financial safeguards, verifiable performance standards, transparency and public participation safeguards, oversight mechanisms such as monitoring and inspections, and rule of law safeguards can preserve opportunities for efficient achievement of environmental protection goals while reducing the risk that markets will be used to subvert those goals.

July 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Renovating a Kitchen as a Renter

The New York Times Real Estate Section runs a reader Q&A:

Q. We live in a rent-stabilized apartment. Many years ago, at our own expense, we upgraded our kitchen, installing counters, tiling and new appliances. We also moved the kitchen sink about two feet. No plumbing was altered other than the visible line leading to the sink. The superintendent was aware of the work and, in fact, assisted at one point. The kitchen now is markedly superior to its former self and will be an asset to the landlord at some point in the future. But my question is: Can our lease be terminated for work done so long ago?Morningside Heights, Manhattan

A. If you violate the terms of your lease, there is a six-year statute of limitations on any claims a landlord could make against you. So if the work was done more than six years ago, you can probably exhale now.Continue reading the main storyRelated Coverage    Ask Real Estate: More Articles in the SeriesBut before you pop open the champagne in your fancy kitchen, think hard about the plumbing work you did, because your case might be a glaring exception to that rule. If any of the work violated city building codes, you could be in a precarious position. If you did not get proper permits for the plumbing work, for example, that could constitute a violation of the law, and there is no statute of limitations when it comes to building code violations as a breach of the lease.

“Basically, the violation renews every single day,” said Michael P. Kozek, a lawyer who represents tenants.

Even if the landlord knew about the work for years, a judge would be reluctant to waive a claim against you if the work is illegal. If the landlord decides one day to evict you over the kitchen, you could agree to put the kitchen back to its original state and keep your apartment. But that would not be an easy task to accomplish, because it would probably be hard to recreate an antiquated, deteriorating kitchen.

Some courts have allowed tenants to legalize the work already done by obtaining a permit and performing any necessary work to correct the violation, provided the work does not constitute a substantial injury to the apartment or pose a risk of harm to neighboring tenants.

“I would sit tight for now,” Mr. Kozek said. “If the landlord becomes aware of it, then immediately contact a lawyer to see if a resolution can be reached.”

July 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Mulligan on The Cost of Personal Property Servitudes

MulliganChristina Mulligan (Brooklyn) has posted The Cost of Personal Property Servitudes: Lessons for the Internet of Things on SSRN.  Here's the abstract:

Why has the common law evolved to disfavor complex and nonpossessory personal property interests, while allowing comparative flexibility in real property? In recent decades, the blossoming of time shares, condominiums, and servitudes has dramatically increased variation in real property rights. But as restrictions on real property forms have eased, personal property forms have remained — and, indeed, have always been — severely and comparatively limited.

This Article will posit three reasons why simple, elegant interests are the norm in personal property. First, because personal property is small, mobile, and often fungible, the information costs associated with determining which property is burdened or fragmented are significantly higher than those associated with pieces of real property. Second, because personal property is generally inexpensive, the information costs associated with determining its status are frequently not worth paying. And finally, because the number of pieces of personal property one interacts with is so great, the information costs associated with correctly understanding them would be, in the aggregate, impracticable to pay if too many types of interests were permitted.

These reasons indicate that greater flexibility in property interests is most beneficial when property is distinct, valuable, and rarely encountered. In comparison, greater standardization is appropriate when property is fungible, lacks value, and is casually or frequently interacted with.

This analysis has implications for the debate within intellectual property law concerning the degree to which content owners may customize license agreements for using digital goods, software-embedded goods, and patented goods subject to conditional sales. Because the characteristics of intellectual-property-embedded goods bear a stronger resemblance to those of personal property than to those of real property, their use should be governed by the same straightforward rules as personal property rather than by the flexible and verbose terms in license agreements.

July 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

An Update on Dukeminier & Krier

Josh Blackman continues to stay on top of the doings at Aspen:

After I declared a partial victory in #AspenGate, I decided to stay with the 7th edition of the excellent property book, Dukeminier & Krier. My plan was to stick with the old edition for a semester, see how things go with the 8th edition, and maybe update it next year. That turned out not to be possible. My campus book store informed me that it was impossible to obtain any new copies of the 7th edition, and he could only obtain 50 used copies (I have 125 students in my two sections). My Aspen rep confirmed this. The market for used books will soon dry up. Rather than leaving my students to the mercy of buying used books on Amazon, I reluctantly agreed to move up to the 8th edition.

To make things fair, I asked my book store to stock *both* the traditional print version that you can keep ($223 with the ISBN of 9781454851363) and the “casebook connect” version that you rent ($182 with the ISBN of 9781454837602). At least students will have the option of how they wish to proceed. I encourage adopters of this book to ask their book stores to do the same.

I also asked the book store to add a sign with this note in front of the books, which I will also add to my syllabus.
Please note that if you purchase the Casebook Connect version (the print version and the digital version), you are not buying the book to keep, but only renting it. According to the terms of the license, you do not own the book, and are required to return the book when you are finished with it. You will not be able to resell it, as you are only leasing the book. If you will not use the electronic version, and plan on reselling your book, or want to keep it, you may considering buying the traditional print version, at a higher price. For more information, please see the attached article from the ABA Journal.
Everyone else is welcome to use similar language to your syllabus. Students should be aware of their options.

I think students will appreciate it. One of my former students who saw the ABA Journal article sent me this kind note:

 I appreciated your paying attention and taking the time to inject your logic. Books are a keystone to education (of all kinds) and it’s nice of you to stick up for us. While I pay cash for my books (and my tuition), your point about school loans was well taken last semester. I have friends who are borrowing money to pay for books. Your attention to books prices was greatly appreciated by all of us as a class. We did notice.

Professors should all remain vigilant on this front.

July 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Map of the Day: How Tight is Your State


Mother Jones reports:

It is obvious to anyone who has traveled around the United States that cultural assumptions, behaviors, and norms vary widely. We all know, for instance, that the South is more politically conservative than the Northeast. And we at least vaguely assume that this is rooted in different outlooks on life.

But why do these different outlooks exist, and correspond so closely to different regions? In a paper recently published in the Proceedings of the National Academy of Sciences (and discussed more here), psychologists Jesse R. Harrington and Michele J. Gelfand of the University of Maryland propose a sweeping theory to explain this phenomenon. Call it the theory of "tightness-looseness": The researchers show, through analysis of anything from numbers of police per capita to the availability of booze, that some US states are far more "tight"—meaning that they "have many strongly enforced rules and little tolerance for deviance." Others, meanwhile, are more "loose," meaning that they "have few strongly enforced rules and greater tolerance for deviance."

The 10 tightest states? Mississippi, Alabama, Arkansas, Oklahoma, Tennessee, Texas, Louisiana, Kentucky, South Carolina, and North Carolina. The 10 loosest, meanwhile, are California, Oregon, Washington, Nevada, Maine, Massachusetts, Connecticut, Hawaii, New Hampshire, and Vermont. (Notice a pattern here?)

(HT: Jessie Owley)

July 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Alexander on Intergenerational Communities

AlexanderGregory Alexander (Cornell) has posted Intergenerational Communities (Law & Ethics of Human Rights) on SSRN.  Here's the abstract:

Under the human flourishing theory of property, owners have obligations, positive as well as negative, that they owe to members of the various communities to which they belong. But are the members of those communities limited to living persons, or do they include non-living persons as well, i.e., future persons and the dead? This Article argues that owners owe two sorts of obligation to non-living members of our generational communities, one general, the other specific. The general obligation is to provide future generations with the basic material background conditions that are necessary for them to be able to carry out what I call life-transcending projects that their forebears have transmitted to them. The specific obligation is project-specific; that is, its purpose is to enable successive generational community members to whom particular life-transcending projects have been forwarded to be carried out in their way. The future generational members to whom the project is transferred must also be given whatever resources or goods are necessary to carry the project forward in its intended way. I argue further that each generational community owes its predecessors the obligation to accept life transcending projects transmitted to them by their forebears and make reasonable efforts to carry those projects forward into the future. The obligation is based on the past generational community members’ dependency on their successors for the projects to continue into the future, a matter that is constitutive of the project creators’ flourishing. This obligation is defeasible, rather than absolute, however.

July 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

'Strip Club Mogul' Buys House Next to Ex-Wife, Erects Giant Middle Finger Sculpture


Gawker does some reporting on the above picture:

A Michigan man has reportedly gone to Internet-ready lengths in order to troll his ex-wife with a daily reminder of his feelings towards her.

According to a person claiming to be the ex-wife's daughter, the crazy-wealthy Bloomfield Hillsman, identified only as "Alan," allegedly purchased the house next door to his ex . . . .   He then went a step further and purchased an expensive bronze statue of a middle finger, which he placed on the back porch and aimed at his ex-wife's house. As if that weren't quite enough passive aggression, Alan ensured the statue was visible 24/7 by shining a spotlight on it after dark.

July 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Death of a Lion

Quintin Johnstone — property professor extraordinaire at Yale, employee of the Roosevelt Administration, giver of Judge Guido Calabrasi's only "B", and immortalizer in the classic  way not to establish a metes-and-bounds description (“about one half a rod more from the stump of the big hemlock tree where Philo Blake killed the bear . . . .”) has died.  Professor Johnstone taught until he was 96 and passed away at age 99.  His obituary is available at

(HT: Thanks to Tad Heuer for bringing this to the blog's attention)

July 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Dagan on Liberalism and the Private Law of Property

AgkjdeaikHanoch Dagan (Tel Aviv) has posted Liberalism and the Private Law of Property (Critical Analysis of Law) on SSRN. Here's the abstract:

This Essay reviews Alan Brudner’s neo-Hegelian theory of property. It critically analyzes Brudner’s conceptualization of the moral significance of property for private sovereignty, his understanding of the relationship between individual independence and self-determination, and his account of what makes private law private. I argue that Brudner is wrong on all three fronts and, furthermore, criticize his account of the market’s putative legitimation of property and public law’s alleged amelioration of the injustices entailed by a private law libertarian scheme.

Notwithstanding these failures, I salute Brudner’s ambitious and provocative project not only due to its many insights, but also because it helpfully elucidates the main strands of justification that property law must face. Indeed, a credible theory of property-for-self-determination must begin by remedying Brudner’s errors as per the moral significance of property for private sovereignty, the relationship between independence and self-determination, and the distinctive nature of private law. This Essay provides preliminary suggestions on all three fronts.

July 18, 2014 | Permalink | Comments (0)

Wednesday, July 16, 2014

Ellickson on The Affirmative Duties of Property Owners

EllicksonRobert Ellickson (Yale) has posted The Affirmative Duties of Property Owners on SSRN.  Here's the abstract:

As a result of his ownership of property, Rip Van Winkle might have incurred a variety of criminal and civil liabilities during the course of his twenty-year sleep. Possibilities are a conviction for neglecting care of his livestock, civil liability to a neighbor for having failed to contribute to the costs of a fence along a common boundary, and forfeiture of his lands for having failed to pay local property taxes. This essay investigates the nature of these affirmative obligations of owners. Concerns about curbing information costs, a central theme in Thomas Merrill’s scholarly works, underlie the structure of many of these duties, and help explain their relative paucity. The analysis illuminates several recent strands of property theory, including Larissa Katz’s notion that a state may choose to “govern through owners.” It reveals major defects in Gregory Alexander’s argument that owners should bear a generalized obligation to share their wealth. Alexander’s proposed duty would greatly increase the information costs that individuals would bear in navigating daily life, and would embroil adjudicators in tasks far better handled by drafters of tax and welfare legislation.


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

Tuesday, July 15, 2014

Houses Built Out of Spite

The Atlantic Cities blog does a quick history:

There are a handful of so-called "spite houses" enlivening the streets of America. Thrown up by cranks and malcontents, these structures take many forms but share a common function: To punish the neighbors by blocking their view, blacking out their sunlight, or making their life a little more hellish in some other nefarious way. Many were constructed in the days when building codes were lax, and so their underlying contempt and animosity has been grandfathered into the modern landscape.


[One example:] This envelope of a Seattle dwelling at left above, what some might call a stand-alone hallway, actually sold for an unknown amount in 2013 (the listed price was $397,500). The problem with the Montlake Spite House is not its 860 square feet, which would make for a decent studio in New York. It's how those feet are proportioned, with 15-foot-wide walls at one end cramping down to 55 inches at the other, narrower than a typical prison cell. "The one-bedroom house at 2022 24th Ave. E. in Montlake was built in 1925 by someone trying to get back at a neighbor for making an insultingly low offer for the tiny slice of land on which it sits," writes the Seattle Times. "It worked; the house blocked the neighbors' open space and they moved."

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

Brophy & Thie on Slaves and Inheritance

Al Brophy (UNC) & Douglas Thie (Independent) have posted Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandaoh Valley on SSRN.  Here's the abstract:

“Land, Slaves, and Bonds” samples wills filed for probate in Rockbridge County in Virginia’s Shenandoah Valley from 1820 to 1861, to detail the changes in probate practice during that era of market revolution. We report the gender, familial status, distributions, and use of trusts of the 128 testators sampled. Their choices often involved leaving part of their property to their surviving spouses for their lives, then outright to their sons and in trust to their daughters. Nearly forty percent owned enslaved human property and distributed their slaves among their children. Occasionally they freed their enslaved human property. This study also traces changes in sophistication of wills and accompanying trusts over time. Thus it provides an important window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it.

The forty years leading into Civil War were ones of extraordinary expansion in the economy, communication, transportation, and technology of the United States; the legal technology studied here reflects that growth in wealth and sophistication. At the same time, as the vigorous market economy was expanding -- as testators’ wealth was increasingly reflected in personal property such as stock rather than real property -- there were problems with identifying reliable agents (executors and trustees). Thus, testators continued to place a premium on family members to manage their wealth; and they also took extraordinary means, such as use of sophisticated trust documents and marriage settlements, to maintain property within their families. This study shows that testators turned frequently to legal technology to manage property and keep it within their families. They used the vehicles to keep property out of the hands of creditors, especially the creditors of their sons-in-laws, Thus, legal technology helped balance the impersonal market revolution.

The data have several implications. They reveal how people reacted to the expanding, impersonal economy where property owners frequently had to rely on trust, even if it was dangerous to do so because it was difficult to police the actions of agents. That era of the breakdown of “trust” was a central impetus to the turn to trust documents to protect a family’s wealth. The data show the importance of legal technology in adapting to a rapidly changing economy and a rapidly expanding world. They also demonstrate the rapid rise in sophistication of trusts and relocate the roots of modern trust law, such as the spendthrift trust, to the pre-Civil War era, even though it is frequently written about as a device of the post-War era.

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

Monday, July 14, 2014

Major Property Decision in Canada


This is a little bit late, but it deserves the notice of the property world.  At the end of June, the Canadian Supreme Court released a major decision about the land rights of aboriginal peoples.  The case, Tsilhqot’in Nation v. Her Majesty the Queen, firmly establishes First Nation claims to a large and defined swath of British Columbia.  In practice, this means that efforts to mine, build pipelines, or develop areas in many areas of BC will be subject to the interests and title of First Peoples.

Here's some historical background from the Globe & Mail.

BC resident and property-prof extraordinaire, Doug Harris, also had a great Op-Ed in the Vancouver Sun explaining the legal issues.  The whole thing is worth reading, but there's a quick summary of the case:

The Supreme Court of Canada recognized a large, contiguous land-mass in central B.C. as aboriginal title lands in the Tsilhqot’in Nation vs. British Columbia case. It is the first time a Canadian court has recognized aboriginal title in a specific territory.

The SCOC also confirmed the broad content of the right. Aboriginal title is a property interest that is derived from exclusive occupation and amounts to a right to exclusive use. Aboriginal peoples are not restricted to using title lands for traditional purposes. Only those uses that would deny future generations the continuing benefit of the land are prohibited.

These elements of the SCOC judgment have received much early attention, and justly so. They will have profound effects on the province and the country.

But the next part of the judgment, described as the justifiable infringement test, also deserves attention. It is here the SCOC has located the balancing of aboriginal title with other rights and interests.

The justifiable infringement test arises once a First Nation has established aboriginal title. At this point, the Crown (either the federal or provincial government) has an opportunity to justify infringements of that title.

The fact aboriginal title may be infringed reveals that it — as other constitutionally protected rights — is not absolute. The recognition of aboriginal title must include some balancing with other rights and, the SCOC indicated, other interests.

(HT: I thank the ever-generous Nick Blomley, Doug Harris, and Matt Harrington for bringing this case to my attention.  Pic: The Musqueam House Post in front of the law school at the University of British Columbia)

July 14, 2014 | Permalink | Comments (1) | TrackBack (0)