PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Thursday, August 27, 2015

Clowney on Black Middle-Class Communities

SteveclowneyStephen Clowney (That's Me!) has posted Boundary Work in Black Middle-Class Communities (Savannah Law Review) on SSRN.  Here's the abstract:

This piece, written for the "Re-Integrating Spaces" symposium at Savannah Law School, explores the spatial reality of black middle-class communities.

Most African-Americans are not poor. In fact, an overwhelming majority of black Americans are squarely entrenched in the rungs of the (lower) middle class. Despite this statistical reality, almost all of the legal scholarship on African-Americans focuses on the struggles of the very poorest black citizens. This brief Article hopes to reverse the trend. Building on insights from sociology and economics, the following pages explore the housing situation of middle-class African-Americans and the resulting geographic setting of non-poor black neighborhoods. In short, this Article asks three questions: (1) Where do black strivers live? (2) Why does it matter? and (3) Can the law mitigate the spatial phenomena that restrict black achievement?

Section I recaps an emerging body of empirical research showing that middle-class black workers reside in communities that are qualitatively worse than their white counterparts. Section II explains how the unique geography of middle-class black life erodes the physical health of African American strivers, threatens the transmission of middle-class values from one generation to the next, and makes it difficult for families to pass on hard-won economic gains to their children. Finally, Section III presents five brief policy proposals that could help reinvigorate middle-class black neighborhoods and spark a sustainable revival of urban environments. Instead of focusing on grandiose but unachievable plans to reformulate the American economy or reanimate public-sector unions, decision-makers should put increased emphasis on: creating new historic preservation districts in black neighborhoods; granting middle-class African Americans greater autonomy from their less well-off black peers; improving public transportation; strengthening school choice programs; and reformulating inheritance rules to prevent irresponsible children from taking over the property of their parents.

August 27, 2015 | Permalink | Comments (0)

Tuesday, August 25, 2015

Opting out of new editions for casebooks

Rob Anderson (Pepperdine) makes an argument that seems especially relevant for Property professors.  Is there any good reason to assign the newest edition of a property textbook?:

The price of law school casebooks (as well as college textbooks generally) seems to grow every year. At the present time, many casebooks cost over $200 when purchased new. The high cost is made worse by the appearance of a new edition every few years, which makes the cheaper used books in short supply (or completely unavailable). New editions seem to appear every five years or so for many casebooks, and this is true not only in fast-moving areas of law, but even in subjects where most of the cases are decades (or centuries) old.

We as faculty can greatly reduce the cost of casebooks to students by simply opting out of new editions and staying with the older edition. This makes more used copies available, lowering the cost for students, and reduces the burden on us of updating reading assignment page references to substantially the same material. Although the publisher may not directly sell new copies of the older edition, there are ample sources available from third parties, both new and used. Indeed, upon the appearance of a new edition, there is often a glut of new and used books that hits the market for low prices as the old edition becomes obsolete. These can be acquired for pennies on the dollar, saving students significant amounts of money.

I adopted this strategy for the first time this year, buying up used casebooks for my Pepperdine 1L students from Amazon and other websites (see below). These used books were available at approximately a 97% discount to the price of a new copy of the new edition. This saved my students over $11,000 and probably saved some trees as well. I doubt that the students will miss out on any great new cases by using the earlier edition, and to the extent there are new developments I can supplement the readings myself.

August 25, 2015 | Permalink | Comments (0)

Kochan on the Nemo Dat Principle

Kochan_DDonald Kochan (Chapman) has posted Dealing with Dirty Deeds: Matching Nemo Dat Preferences with Property Law Pragmatism (Kansas Law Review) on SSRN.  Here's the abstract: 

When title disputes arise between two or more purchasers, we have accepted pragmatically that exceptions must be made to applying the Latin maxim nemo dat quod non habet – roughly translated to mean that one can only transfer what they own – even though using such exceptions means that we will, in essence, at times validate fraud and other dirty deeds. This Article outlines the basic place of the nemo dat principle in our system of law, introduces the tensions between the ideal adherence to the maxim and the realities in the world that necessitate exceptions to (or a sometimes less-than-ideal achievement of) the maxim, summarizes the recording acts and their purposes (along with the types of notice and their uses), and exposes the tensions these recording systems each have with a strict notion of nemo dat. It explains why the protections for bona fide purchasers are necessary to facilitate markets in property and serve other goals, while examining the role of individual responsibility – particularly as it relates to purchaser obligations to record and examine records – as the core justification for setting the rules in a manner that first-in-time title holders sometimes lose out to subsequent purchasers.

Pragmatism concerns make some nemo dat exceptions necessary, but we should find ways to minimize the need for invoking such exceptions principally by shrinking the pool of those who fit the criteria for the bona fide purchaser exception. This Article proposes that we should search for ways to so shrink that pool not by changing the nature of the protections available to innocent bona fide purchasers but instead by finding new ways to inject more information about land conveyances into the public view – beyond traditional recording mechanisms – so that more and earlier notice of possible competing property claims is available to responsible purchasers exercising due diligence.

To accomplish that goal, this Article presents a proposal to take advantage of what can be characterized as “the underexploited utility of inquiry notice.” The idea is to create better conditions to give first-in-time purchasers additional opportunities to protect their title interests by more easily triggering the inquiry obligations of second-in-time and other subsequent purchasers. The Article outlines the components of a proposed new and innovative service called the “Title-Related Inquiry Notice Triggering System” (TINTS). As outlined, TINTS would operate in a manner that would provide a means for purchasers of property to protect their claim to title even earlier than official recording might accommodate. TINTS, or other innovations like it, can assist us in matching nemo dat preferences with property law pragmatism.

August 25, 2015 | Permalink | Comments (0)

Monday, August 24, 2015

Who Does Federal Housing Policy Help?


Vox puts together a cool chart:

If you take out a mortgage to buy a house, the federal tax code lets you deduct your interest payments from your taxable income. People can also deduct state and local property taxes from their federal income taxes.

The blue bars show the value of these tax breaks for different income brackets. They can be compared with subsidies the federal government provides to low-income people to help them afford housing — represented by the yellow bar. As you can see, the tax breaks provided to the richest Americans, on a per-person basis, dwarf the value of housing subsidies provided to those with low incomes.

But the combined effect of these policies is to hurt the middle class the most. Most households in the middle of the income distribution are too wealthy to qualify for federal housing subsidies. At the same time, they tend to have relatively small houses and be in low tax brackets, so they don't get much benefit from housing-related tax breaks.

August 24, 2015 | Permalink | Comments (0)

Call for Papers: Local Government Law Works-in-Progress

The Rutgers Law School Center on Law in Metropolitan Equity (CLiME) is proud to host the Third Annual Local Government Law Works-in-Progress Conference.

This scholarship conference will take place November 6-7, 2015 at the S.I. Newhouse Center on Law and Justice at the Rutgers School of Law in downtown Newark, NJ. Although all topics are welcome, we are particularly interested in showcasing papers that interrogate the meaning and utility of an equity principle in local governance.

This year we hope to attract a few local government-oriented scholars from outside law to attend and comment.

Please register for the conference by October 2, 2015 here.

Participants will have the option of either presenting a full draft or an early work in progress/abstract. Draft papers will be due October 16, 2015.

Questions and submissions should be directed to

August 24, 2015 | Permalink | Comments (0)

Qu on the Owners’ Committee in China

QuDifan Qu (Hong Kong) has posted The Owners’ Committee in China: Another Non-Owner Owned Puppet? (Tsinghua China Law Review) on SSRN.  Here's the abstract:

The Owners’ Committee in China, ever since its creation it the 90’s of the 20th century, has been unpopular and even strange to most private property owners in China. Although ideally, a well-functioning Owners’ Committee should benefit the property owners and serve to be the entity acting in the best interests of the owners. However, due to political, cultural as well as legal factors, the establishment of Owners’ Committee in China has yet to become a typical practice, much less of becoming a functioning entity seeking to safeguard owners’ interest. There is very little study in both Chinese and English literatures of the Chinese Owners’ Committee on how law can facilitate its formation and operation. This article utilizes the findings of the social science researches conducted on this topic and addresses various problems of the Owners’ Committee, and proposes several solutions on how the reconstruction of our current legal mechanism can facilitate a well-functioning Owner’s Committee.

August 24, 2015 | Permalink | Comments (0)

Friday, August 21, 2015

Why Bike Share Will Never Ever Work, Ctd.

Further proof that bike share programs are just a hipster tragedy of the commons:


August 21, 2015 | Permalink | Comments (0)

Brophy on the Integrationist Possibilities of Common Law Property

BrophyAl Brophy (UNC) has posted Re-Integrating Spaces: The Possibilities of Common Law Property (Savannah Law Review) on SSRN.  Here's the abstract:

"Re-Integrating Spaces" is part of a symposium on progressive property held at Savannah Law School as part of the re-dedication of their building, which was constructed in the early nineteenth century and used as a hospital for much of its existence.

The essay uses the building's long history as a guide for exploring the history of property rights and race in Georgia and the United States. It emphasizes that while the central tendency of property is about exclusion and control -- as Georgia's history with slavery, Native American removal, and Jim Crow demonstrate. Yet, it points out that sometimes the protection of property rights benefits racial minorities. And it also discusses the long history of the critique of such robust property rights. This lead to discussion of some of the instances where other elements of common law property (and statutory rights) help to shift away from the right of exclusion and control.

August 21, 2015 | Permalink | Comments (0)

Thursday, August 20, 2015

The Goonies House vs The Right to Exclude

The owner of the house used in the filming of the Goonies movie has recently become fed up with  tourists doing the Truffle Shuffle on her lawn:

It turns out, when it comes to Astoria’s success at capitalizing on “The Goonies” as a big-time tourist draw, there can be too much of a good thing.

Just a few months after the Astoria-Warrenton Chamber of Commerce staged the film’s 30th anniversary celebration in Astoria and Cannon Beach, both the chamber and the city of Astoria are now trying to keep Goonies fans away from the iconic house featured in the 1985 cult classic.

For 14 years, homeowner Sandi Preston has let fans — within reason — approach, photograph, gawk at and geek out on her property in Uppertown. On occasion, she has even opened up her house to them. “Sandi ... has been very, very accommodating,” City Councilor Russ Warr said. But, with an estimated 1,200 to 1,500 visitors swarming around the house almost every day this summer, Preston and her neighbors near 38th and Duane streets are experiencing fan fatigue.

“The tourism at the Goonies house has, over the last three or four years, absolutely exploded,” Warr said at Monday’s City Council meeting. Preston recently asked the chamber and the city to do whatever they can to limit public access to her home. “She was overwhelmed and looking for help to try to get some semblance of normal life back,” Regina Willkie, the chamber’s marketing director, said. “It’s just a constant stream of people coming at all hours of the day.”

To help stem the tide, the city placed a sign near 38th Street on Monday that reads: “Access closed to Goonies house.” Two months ago, the city posted signs prohibiting Goonies parking on 38th Street, an effort that has lessened vehicular traffic at the house but not foot traffic, Warr said.

“Most people ... think that it’s an attraction, when it really, in fact, is a private residence,” he said.

August 20, 2015 | Permalink | Comments (0)

Stern on Expropriation Effects on Residential Communities

SternShai Stern (Bar-Ilan) has posted Expropriation Effects on Residential Communities (Context, Criteria & Consequences of Expropriation) on SSRN.  Here's the abstract:

This Article suggests that individuals who live in highly cooperative residential communities should — in certain instances — be entitled to additional compensation or other remedies when their property is taken through eminent domain. The exclusive takings remedy of monetary compensation equal to the fair market value of the property cannot always account for loss of communality. This Article offers guidelines for allocation of additional remedies (monetary and in-kind) that recognize such loss.

August 20, 2015 | Permalink | Comments (0)

Kreiczer-Levy on Consumption Property in the Sharing Economy

ShellyklShelly Kreiczer-Levy (Academic Center of Law and Business) has posted Consumption Property in the Sharing Economy (Pepperdine Law Review) on SSRN.  Here's the abstract:

Various doctrines from different areas of the law provide special legal protection for property that is produced and used for personal use, creating the legal category of "consumption property." Zoning, criminal procedure, discrimination, foreclosure and bankruptcy, taxes and eminent domain all treat property for consumption differently than commercial property. Recently, a new social phenomenon known as the sharing economy allows owners to rent out personal assets such as a room in their home, their private car, a bicycle, and even pets. The sharing economy challenges the foundational distinction between privately used property and commercial property and leads to fragmentation of uses and symbolic meanings. This fragmentation raises new questions: what are the boundaries of intimacy in the realm of modern consumption? How should the law regulate business transactions in intimate locations? This article presents the category of personal consumption property, arguing that the sharing economy profoundly challenges it, and then offers new ways to reinvent this category, introducing the framework of consumption property as a nexus of connections. The new framework also has numerous legal implications ranging from fair housing law and public accommodations law to taxes, business licenses and other regulatory regimes.

August 20, 2015 | Permalink | Comments (0)

Tuesday, August 18, 2015

HBO's New Show on Affordable Housing


Vox gives a rundown of HBO's Show Me A Hero, which details a white middle-class neighborhood's resistance to a federally-funded public housing development:

As its central topic, Show Me a Hero has taken the idea of housing desegregation — a hot-button issue in the late 20th century that almost never comes up today — and it casts its net so wide that in later episodes, it feels like everybody in the city of Yonkers, New York, is one of its characters.

All of this should contribute to a miniseries that suffers from dullness and bloat, but Show Me a Hero always feels thrillingly alive and attuned to the way that all politics is personal. "Not in my backyard" stops being a concept and becomes something driven by raw, human emotion, and that makes it all the more powerful when wounds begin to heal. Later in the series, one character tells another that "votes aren't love," but it's not hard to see why these people can get confused on the matter. They put everything they have into these seemingly tiny, local issues, and when they come out the other side, they're different — at once more hopeful and more beaten down.

August 18, 2015 | Permalink | Comments (0)

Plater on the National Land Use Planning Act vs. Coastal Zone Management Act

Plater1Zygmunt Plater (Boston College) has posted A Glimpse into the Realpolitik of Federal Land Planning, in Comparative Context with the Mysterious NLUPA and the CZMA (The George Washington Journal of Energy & Environmental Law) on SSRN.  Here's the abstract:

There is an old adage that “those who fail to plan, plan to fail.” Planning is a fundamentally rational, basal process shared at some level and to some degree by all, establishing and implementing frameworks to guide our human actions toward the accomplishment of various desired and defined objectives. Thoughtfully designed and implemented planning is no less rational and essential for governmental entities than it is for corporations and individuals.

This essay surveys an interesting comparison between two quite different federal approaches to directive land and resource management planning. On one hand, the analysis reviews the federal mandate for layered, cooperative, intra-governmental land planning incorporated within the National Land Use Planning Act (“NLUPA”) — a statute repeatedly proposed in the 1970s but which never became law — and within the Coastal Zone Management Act (“CZMA”), its sibling statute, that did. On the other hand, this essay observes the circumstances and effectiveness of federal statutory directives to federal management agencies to create and implement mandatory operative plans as a basis for resource regulatory actions on federal lands generally. Both of these models address the need to guide market forces to maximize particular defined societal objectives and to avoid specific public disbenefits.

Shortcomings are frequently encountered, however, in the implementation of many federal resource plans, visible in a variety of disappointing occurrences including oil spill contingency responses in Alaska and the Gulf of Mexico, forestry management, mining, rangeland grazing, and a variety of other federal planning settings. Deficiencies in federal land and resource planning are pondered in this analysis as they are embodied in Norton v. Southern Utah Wilderness Alliance (“SUWA”). Underlying the dysfunctions discernible in many federal resource management plans is a fundamental systemic tension lying within the structure of modern governance. The analysis here finishes with a proposal for understanding how government currently malfunctions in the resource management planning setting and how that can be rectified.

August 18, 2015 | Permalink | Comments (0)

Monday, August 17, 2015

Why Are Art Heists So Hard to Solve?

The concert

What happens to all that stolen art?:

In his book Crimes of the Art World, Thomas D. Bazley wrote that 90 percent of stolen art objects go unrecovered. To a layman, this statistic seems really surprising. Art is conspicuous, after all. Why are art crimes so difficult to solve?

[T]he great majority of museum thefts involve museum staffers and others with special access to the collections. Sometimes these insiders work in tandem with outside criminals, sometimes they work alone. These solo heists—if you can call grabbing something from archival storage, sticking it in a backpack, and walking out the museum door a heist—can go unnoticed for long stretches of time; often, by the time the museum realizes a work is missing, little physical evidence remains to implicate the thief.

Insiders and common thieves have at least one thing in common: Neither have much idea what to do with a work after they steal it. A stolen art object can generally fetch about one-tenth its value; thus the Gardner haul, valued around $500 million, would be worth about $50 million on the black market. But nonspecialist thieves generally have no idea how to get in touch with black-market art buyers or brokers, who, after all, are not exactly in the phone book. The result is that a lot of stolen art just sits in storage once the thieves realize they don’t know how to sell it and they’re afraid to return or ransom it.

That’s one reason why these cases are hard to solve. Another is that most law enforcement agencies simply aren’t up to the task of solving them. In his essay “Who Is Stealing All Those Paintings?” Tijhuis reveals that his titular question is difficult to answer due to “the rather limited interest of most police services in the theft of works of art. … [I]n most countries, no special art theft units exist within the local or national police services.

(Picture: Johannes Vermeer's The Concert, which is considered to be the most valuable stolen painting in the world. A reward of $5,000,000 is still offered for information leading to its return.)


August 17, 2015 | Permalink | Comments (0)

Stern on Just Remedies

SternShai Stern (Bar-Ilan) has posted Just Remedies (Rutgers Law Review) on SSRN.  Here's the abstract:

This Article challenges the preference in takings law for remedial simplicity over remedial justice, and demonstrates why this preference — which is manifested by the application of a universal compensation standard — fails to fulfill the constitutional requirement of "just compensation." This failure exists at both the normative and positive levels. In a normative sense, the universal compensation mechanism is inadequate because it ignores important differences among owners, among types of property, and in the consequences of expropriation. Consequently, current takings law is at odds with the pluralistic nature of property ownership. In a positive sense, takings law is ill equipped to assess the actual loss incurred by owners whose property is taken. Courts apply a universal compensation standard — the fair market value of the taken property — which makes compensation exclusively dependent on the market, imports the failures of the market to state action, ignores non-market values and losses incurred by owners, and excludes market values that are not directly linked with the property's price.

This Article does not argue that we must sacrifice simplicity in the law for the sake of justice, but suggests that we can have them both. By expanding the range of remedies available to owners subject to expropriation, the Article offers a normative rule-based remedial scheme in takings law. To avoid ad hoc adjudication and practical assessment difficulties, the Article proposes categorization of the different prototype failures that characterize current law. Each prototype category requires different treatment in the law of takings, including different remedies available to owners. A remedial scheme which is sensitive to property types, owners' actual losses, and expropriation consequences, will restore a constitutional sense of justice to takings law.

August 17, 2015 | Permalink | Comments (0)

Friday, August 14, 2015

Hiring Announcement: Iowa

From our friends in Iowa City:

THE UNIVERSITY OF IOWA COLLEGE OF LAW anticipates hiring several tenured/tenure track faculty members and clinical faculty members (including a director for field placement program) over the coming year. Our goal is to find outstanding scholars and teachers who can extend the law school’s traditional strengths and intellectual breadth. We are interested in all persons of high academic achievement and promise with outstanding credentials. Appointment and rank will be commensurate with qualifications and experience. Candidates should send resumes, references, and descriptions of areas of interest to:  Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa  52242-1113.

THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.

August 14, 2015 | Permalink | Comments (0)

A Black Man in America's Whitest Towns

City Labs explains:

For his 2006 book, Searching for Whitopia, Rich Benjamin traveled 27,000 miles across the U.S. to find the whitest communities in the country. He rented homes there and temporarily became a resident of those so-called “whitopias,” where, as a black man, he’s experienced the good, the bad, and the awkward. Benjamin recently gave an audience a taste of his experience at this year’s TED Woman conference in California.

August 14, 2015 | Permalink | Comments (0)

Miller on Community Rights and the Municipal Police Power

MillerStephen Miller (Idaho) has posted Community Rights and the Municipal Police Power (Santa Clara Law Review) on SSRN.  Here's the abstract:

From small New England hamlets to major mid-Atlantic cities to sea-side California counties — in largely unnoticed fashion — at least 150 local governments across the country have adopted ordinances proclaiming “community rights” and a right to self-governance that defies long-established legal norms. Though still nascent, the movement may be one of the most rebellious, and radical, in American local government today. The movement may also come to redefine the police power, the very foundation of local government regulatory capacity more often defined as the power to regulate for health, safety, welfare and morals. This article uses the community rights movement as a means of investigating whether the police power, reconceived through the lens of rights, might prove a sufficient rationale for supporting not only those rights enumerated by the community rights movement, but also other aspects of community that have previously been viewed as theoretical.

August 14, 2015 | Permalink | Comments (0)

Wednesday, August 12, 2015

Building Around Tenants Who Can’t Be Evicted


The New York Times looks at one developers creative approach to working around rent-controlled apartments:

Two years ago, while walking his family’s new puppy, Paul Boardman had the kind of epiphany only a real estate entrepreneur can have. [...] Mr. Boardman was passing by 711 West End Avenue, a seven-story apartment building of red brick and squat windows between 94th and 95th Streets that looked almost as if it were shrinking from the grand prewar buildings around it that are twice its size.

Mr. Boardman envisioned something equal in stature for the site. But tearing down 711 West End Avenue would be all but impossible, considering that more than half its 144 apartments are rent-stabilized, giving their tenants a right to stay. So Mr. Boardman came up with a daring plan. By threading a series of multi-ton support columns around the existing structure, a new 10-story condominium tower could be built. It would essentially sit not atop the old building, but above it, with its bottom floor hovering more than 80 feet in the air.

“We get to unlock the value of this site and create a building truly worthy of this great neighborhood without displacing any of the existing residents,” Mr. Boardman said in an interview last week.

August 12, 2015 | Permalink | Comments (0)

Hudson on Environmental Conservation & Stability in Housing Markets

HudsonBlake Hudson (LSU) has posted Realigning Metrics of Economic Well-Being in Residential and Commercial Development Through Sustainable Land Use Planning (Washburn Law Journal) on SSRN.  Here's the abstract:

This brief essay assesses the key role that environmental conservation plays in achieving stability in housing markets. The essay reiterates the many calls for a shift away from metrics of economic growth — like Gross Domestic Product and New Home Starts — that are currently fundamentally at odds with the protection of global natural capital, and that in particular threaten the non-renewable land base. The essay argues that while work should continue to change the ex-post metrics that we utilize to determine economic well-being within nations, the ex-ante use of more stringent land use regulatory controls can actually obviate the urgency to adjust those metrics by decoupling the replacement of natural capital from metrics of economic growth.

August 12, 2015 | Permalink | Comments (0)