Thursday, October 30, 2014
Nestor Davidson (Fordham) has posted Nationalization and Necessity: Takings and a Doctrine of Economic Emergency (Brigham-Kanner Property Rights Conf. J.) on SSRN. Here's the abstract:
Serious economic crises have recurred with regularity throughout our history. So too have government takeovers of failing private companies in response, and the downturn of the last decade was no exception. At the height of the crisis, the federal government nationalized several of the country’s largest private enterprises. Recently, shareholders in these firms have sued the federal government, arguing that the takeovers constituted a taking of their property without just compensation in violation of the Fifth Amendment. This Essay argues that for the owners of companies whose failure would raise acute economic spillovers, nationalization without the obligation to pay just compensation should be recognized as a natural extension of the doctrine of emergency in takings. Public officials must be able to respond quickly to serious economic threats, no less than when facing the kinds of imminent physical or public health crises — such as wildfires and contagion — that have been a staple of traditional takings jurisprudence. Far from an affront to the rule of law, this reflection of necessity through an extension of emergency doctrine would reaffirm the flexibility inherent in property law in times of crisis.
Wednesday, October 29, 2014
The news from the Bay Area:
A federal judge Tuesday struck down a San Francisco ordinance that steeply increased payments landlords were required to pay tenants evicted from properties they intended to take off the rental market, finding the law was an unconstitutional seizure by the government.
The legislation drafted by Supervisor David Campos took effect in June and required landlords to pay two years worth of the difference between the tenants' rent-controlled rate and the market rate, determined by a formula developed by the city controller's office.
Campos' ordinance was intended to mitigate the effects of the state's Ellis Act, statewide legislation passed in 1985 that allows landlords to evict tenants without cause if they intend to take the housing off the rental market.
Thomas Mitchell (Wisconsin) has posted The Land Crisis in Zimbabwe: Getting Beyond the Myopic Focus Upon Black & White (Indiana International & Comparative Law Review) on SSRN. Here's the abstract:
This article deconstructs the role that race played in the land crisis in Zimbabwe that occurred in Zimbabwe in the late 1990s and earls 2000s. The article makes it clear that the government of Zimbabwe did not extend robust property rights to its black majority population for the most part even as it took land from large white landowners. This is revealing given that the government's primary justification for taking land from large white landowners was that the black majority unjustly owned little property in Zimbabwe as a result of colonialist and neocolonialist, discriminatory polices.
Tuesday, October 28, 2014
Brooklyn Magazine tries to find a book that captures the spirit of each state:
We wanted to come up with a list that was more than just a general reflection of a place, but rather paid attention to the specifics, even at the risk of the exclusion of the whole. No one book, after all, can completely capture the spirit of something so unwieldy as a state. Few—if any—books can even completely capture the spirit of an individual. And yet there are those stories that so beautifully evoke a time and a place and a way of life that it becomes close to impossible to separate the literary perception of a place from its reality—one winds up informing the other.
Check out the webpage for further explanations of the choices.
Sari Graben (Ryerson University - Canada) has posted Lessons for Indigenous Property Reform: From Membership to Ownership on Nisga'a Lands (British Columbia Law Review) on SSRN. Here's the abstract:
Indigenous governments in Canada are increasingly authorized to adopt laws that convert communally held lands to individual fee simple. They will convert title to fee simple in order to obtain the economic benefits commonly associated with private ownership and its securitization. However, Indigenous peoples are also likely to experience rapid social change that may necessitate the adaptation of law to local context. Governments expect to address social dislocation by exercising legislative and regulatory authority over lands, which continue irrespective of ownership. Seeking to examine the reliability of this argument, I analyze whether the legislative reforms of the Nisga’a Nation, one of the first to define its Aboriginal title as an estate in fee simple, are sufficient to address social changes likely to arise from titling.
Based on the authority obtained by the Nisga’a in the Nisga’a Final Agreement and already established in Nisga’a statutes, I argue that social impacts and laws necessarily implicated by titling reform can be addressed through the legal authority vested in the Nisga’a. However, because ownership works in collaboration with other laws to impact the social and economic environment of a community, continuing governing authority may not be sufficient to effect significant control over the use and development of the land. Drawing on the insight that titling is used as one part of a broader regime aimed at investment I argue that local reforms by Nisga’a governments that seek to ameliorate the impacts of titling are likely to be countered by investor concerns over certainty of title and security. I conclude with the observation that while privatization may be superior to communal ownership for particular Indigenous governments, law related to the social impacts of privatization should be identified as part of future land reform efforts.
Monday, October 27, 2014
Bloomberg looks at the tensions between New York City and Airbnb - a company that allows private owners to rent out their homes or apartments for short stays:
New York is the obvious business case for a service such as Airbnb: a dense city where a lot of people want to visit, and hotel rooms are limited in number. You’ve got a population of educated professionals who travel a lot, leaving their apartments empty. You’ve got insane housing costs in desirable areas, leaving renters open to making a few extra bucks on their abode. Unsurprisingly, almost 30,000 NYC units are available on the site.
It turns out, however, that New York is also one of the most challenging environments for Airbnb. You’ve got a powerful hotel lobby that likes the shortage of affordable rooms for rent. You’ve got an extremely high percentage of renters rather than owners, most of whom probably have leases that forbid subletting without permission. You’ve got a lot of apartments, whose fellow tenants may object to your giving strangers the keys to the front door. And don’t forget the well-organized affordable housing groups who object to landlords converting rental units to short-term stays. All of which has culminated in a law that effectively outlaws the majority of Airnb rentals in the city by making it illegal to sublet a New York apartment for less than 30 days. Yesterday, the New York State Attorney General, having demanded data on the city’s top Airbnb landlords, declared that three-quarters of the rentals appear to be illegal.
Andrew Kull (Texas) has posted Ponzi, Property, and Luck (Iowa Law Review) on SSRN. Here's the abstract:
Recent decisions allocating losses between fraud victims in the aftermath of Ponzi schemes offer a real-time illustration of Holmes’s “law reform by ignorance.” Problems in victim v. victim restitution that were once resolved by the application of equitable property rules are being decided by lawyers and judges who never learned the rules. Unable to apply what Holmes called “special knowledge,” they have had to rely instead on “general principles” — and they have decided the cases differently. The result has been to readjust the limits of property rights along a neglected dimension: the extent to which ownership is protected against involuntary dispossession. This article traces the different points at which property baselines have been redrawn, considers the effects, and inquires what “general principles” might account for the change.
Friday, October 24, 2014
The Atlantic has a story on one group's attempt to turn privately-owned (but abandoned) houses into shelter for the poor:
But one group in Baltimore is pushing to help others do officially what Jeremiah did on the fly: take vacant homes and turn them into permanent affordable housing for the homeless. Housing Our Neighbors, part of theHousing Is A Human Right Roundtable, is made up of labor activists, homeowners, and homeless people. The group is currently surveying the McElderry Park neighborhood in Baltimore in order to present the city with a report on the number of vacant homes there. They say the data will show there are far more vacant homes in Baltimore than the city has previouslyacknowledged, and they argue that those homes should be turned into affordable housing.
“Clearly there’s a moral crisis when you see so many people in need of homes and there’s such a glut of vacant ones,” said Rachel Kutler, a leadership organizer with United Workers, which works with the Roundtable.
Brad Plumer links to an incredible chart from The Hamilton Project’s “Nine Economic Facts about Water in the United States“:
What’s interesting is that many cities in dry areas – Denver, El Paso, Phoenix, Las Vegas – have some of the lowest water bills around, whereas a wet city like Seattle has much higher bills. Some of that can be explained by provisions in the Clean Water Act that required cities like Boston to upgrade their sewage-treatment systems. Still, the disparity is notable. Other surveys have also found that there’s little relationship between the price of water and how scarce it is.
The report notes that some cities, like Phoenix and Los Angeles, have begun to reform their pricing schemes so that heavier water users get charged more. But this is hardly universal. In most parts of the United States, the price of water doesn’t reflect the infrastructure costs of delivering that water or the environmental damage that excessive water withdrawals can cause. As long as that’s the case, there are few market incentives to conserve or allocate water more efficiently.
Wednesday, October 22, 2014
Mike Konczal has an important follow-up to the recent Vox article (How Sweden Fights Inequality WIthout Soaking the Rich) on the relationship between progressive taxes and inequality. Konczal argues that the Vox's definition of “progressive” is misleading:
They are measuring how much of tax revenue comes from the top decile (or, alternatively, the concentration coefficient of tax revenue), and calling that the progressivity of taxation ("how much more (or less) of the tax burden falls on the wealthiest households"). The fact that the United States gets so much more of its tax revenue from the rich when compared to Sweden means we have a much more progressive tax policy, one of the most progressive in the world. Congratulations?
The problem is, of course, that we get so much of our tax revenue from the rich because we have one of the highest rates of inequality across peer nations. How unequal a country is will be just as much of a driver of the progressivity of taxation as the actual tax polices. In order to understand how absurd this is, even flat taxes on a very unequal income distribution will mean that taxes are “progressive” as more income will come from the top of the income distribution, just because that’s where all the money is. Yet how would that be progressive taxation?
HT: Kent Schenkel
Mitchell Berman (Penn) has posted Abuse of Property Right Without Political Foundations: A Response to Katz (Yale Law Journal Forum) on SSRN. Here's the abstract:
In an article recently published in the Yale Law Journal, Larissa Katz defends a heterodox principle of abuse of property right pursuant to which an owner abuses her rights with respect to a thing she owns if she makes an otherwise permitted decision about how to use that thing just in order to harm others, either out of spite, or for leverage. Katz grounds that principle in a novel theory of the political foundations of the institution of property ownership. This essay argues that Katz’s political theory is implausible, but that this should not doom her preferred principle of abuse of property right. Further, the essay bolsters Katz’s abuse principle by showing how it, or close analogues, helps resolve both the paradox of blackmail and the puzzle of unconstitutional conditions.
Tuesday, October 21, 2014
The emerging housing market that's rising from the ashes of the recent crash looks very different from the one that we had in the aughts in one important way — a much larger share of new dwellings are being constructed in apartment buildings that contain five or more units.
Multifamily housing hasn't been this big since circa 1970. Some of that is for reasons related to the crash and the recovery, but some of it is simple demographics. Young people tend to rent at higher rates than older people, and renters are more likely to choose multifamily structures. Forty-five years ago there were a lot of baby boomers in their early 20s renting homes, and today their kids are coming into the rental market and driving demand for multifamily housing.
Luke Meier (Baylor) & Rory Ryan (Baylor) have posted Aggregate Alienability on SSRN. Here's the abstract:
This Article proposes a new concept—“aggregate alienability”—as a lens by which to understand the complicated law regarding the validity of privately-imposed restraints on the alienability of real property. Modern scholars have tended to explain this law—which sometimes invalidates restraints and sometimes upholds and enforces restraints—as simply a “naked preference.” In those instances in which the restraint is upheld and enforced, the law is said to prefer the alienation rights of the grantor (the party imposing the restraint). When the restraint is stricken, the law is said to prefer the alienation rights of the grantee (the party on whom the restraint is imposed). This Article rejects the notion that the nuanced law regarding the validity of restraints on alienability is best explained as simply a naked preference in favor of some parties over others. Instead, this Article argues that the rules regarding the validity of restraints on alienation are actually based on a rough prediction as to how to maximize property alienability. In some instances, maximum alienability is best achieved by invalidating the attempted alienability restraint. In other instances, however (and somewhat counter-intuitively), maximum alienability is best achieved by upholding and enforcing an alienability restraint. In either instance, the legal rules about the validity of a particular restraint are not a preference for either the grantor or the grantee, but an attempt to maximize efficiency by facilitating the alienation of property.
Monday, October 20, 2014
Throw in some adverse possession and we'd have ourselves a law school exam:
Six months after building a large custom house with an ocean view, Missouri residents Mark and Brenda Voss learned of a big problem – it's on the wrong lot. Their three-story vacation rental house with an estimated construction value of $680,000 actually sits on the lot next to the one they own in the gated Ocean Hammock resort community.
[...] The Voss's builder, Keystone Homes, which is based in Ormond Beach but builds primarily in Flagler County, has contacted the two lot owners and other parties and is trying to negotiate a settlement, said Robbie Richmond, company vice president.
“The buck stops with the builder. We know that. We are in the process of trying to schedule a conference call and find a fair resolution without the lawyers,” Richmond said. “I have built about 600 homes in Flagler County and this has never happened to me before. It does happen, but it's rare.”
[...] The builder and Voss each say the error can be traced to the first survey in 2013. East Coast Land Surveying in Ormond Beach misplaced stakes, and the foundation survey and other documents and building activity were based on the error. During construction, dozens of subcontractors arrived each day to work at the wrong lot. And a final survey failed to note the error.
“We require a preliminary plat, foundation and final survey and they all indicate it's the right lot where the house sits,” said Mark Boyce, Flagler County's chief building official. “We rely on the surveyor. They are state licensed professionals and we count on them to get it right.”
Todd Zywicki (George Mason) has posted The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories) (Supreme Court Economic Review) on SSRN. Here's the abstract:
A major cause of the recent financial crisis was the traditional American mortgage, which is distinctive for the following features: it is a thirty-year, self-amortizing loan with an unlimited right to prepay. The United States is unique in the world for standardizing on a mortgage product with these features. Yet not only have a majority of the foreclosures that occurred during the financial crisis been fixed-rate mortgages, the fixed-interest-rate characteristics have undermined efforts by the Federal Reserve and government to assist recovery of the housing market. Moreover, the long fixed-rate term and ability to refinance are highly expensive and suboptimal features for many consumers. Nevertheless, many consumers persist in purchasing this mortgage. Drawing on the methodology of behavioral law and economics, this article provides rationalizations for how behavioral law and economics can explain the persistence of a product that is so harmful to many consumers and to the economy at large. The article then draws conclusions about what this analysis means for the behavioral law and economics research program generally and for the use of behavioral law and economics in government policymaking.
Wednesday, October 15, 2014
Slate covers the burgeoning field of mining rights in outer space:
Current efforts to clarify the legal status of asteroid-mined resources, if approached the wrong way, she says, could guarantee Arctic-like international disputes over future space activities. The reverse is also a concern: Disagreements over space could influence disputes on Earth. It might be fun to imagine Battlestar Galactica–type conflicts over resources in space, but why spend millions on space weapons when you can hurt your competitor at home and on the cheap?
The foundational document that governs doing stuff in space is the 1967 Outer Space Treaty, on which the United States, Russia, China, and more than 100 other countries are signatories. It reads with an optimism that seems strange today in the era of the mothballed space shuttle. The treaty bans nuclear weapons in space, forbids nations to make claims to celestial real estate, and clearly allows for private space enterprise. According to Gabrynowicz, “Non-state actors … are authorized to be in space, that’s what Article 6 of the Outer Space Treaty is all about.” In fact, it’s apparent that the drafters of the treaty expected that resources would be extracted from space at some point, she says, “But we’ve just never reached agreement on what happens to extracted resources. … So what is happening is you have companies that are chomping at the bit to clarify the rules.
On Sept. 10, the House Science, Space, and Technology Committee held a hearing on the Asteroid Act, a refreshingly short and readable five-page bill that would recognize the ownership by companies of resources they have extracted from asteroids and would also prohibit companies from interfering with the operations of competitors. Planetary Resources sent a letter to the committee in support of the bill.
The Anderson & Bogart Property Law textbook (Aspen) has recently added a cool-looking feature: video problems. The videos drop students into assorted property law scenarios – a real estate closing, a zoning board hearing, and an estate planning session -- so they can see what lawyers actually do in these situations. The problems also encourage students to think about the substantive issues raised in a “real-life” context.
For more information about the book, see: http://www.aspenlawschool.com/books/anderson_bogart_prop/default.asp
Tuesday, October 14, 2014
If you want to understand how Americans think about property (or at least how middlebrow Americans with cable think about property) you need to understand the worldview and aesthetic of Jonathan and Drew Scott. The Scott Brothers (who are actually Canadian) host the #1 and #2 shows on HGTV. Forbes has a good interview with "The Property Brothers."
Nicholas Blomley (Simon Fraser) has posted Making Space for Property on SSRN. Here's the abstract:
A modern day treaty process in British Columbia, Canada, involving First Nations and the federal and provincial governments, entails a struggle to carve out both metaphoric and material space for indigenous land and title. Despite considerable opposition, the state has insisted that First Nations will hold their treaty lands as a form of "fee simple", this being the way most private property owners hold property, granting broad rights to access, use, and alienate. This is said to generate what the state terms "certainty", a concept predicated on the idea of property as a priori, singular, and definite. I explore the resultant contest through a performative lens that treats property not as essence, but as effect. Tracing the complicated ways in which fee simple is performed in the treaty process reveals that fee simple is anything but. Multiple, competing, and overlapping fee simples are in circulation. The identification of this multiplicity offers valuable lessons for our understanding of the contemporary space of postcolonial reconciliation.