PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Friday, January 9, 2015

Lehavi on the Globalization of Property Law

Amnon Lehavi (ICH - Radzyner) has poted Land Law in the Age of Globalization and Land Grabbing (Book Chapter) on SSRN.  Here's the abstract:

Is land becoming a global commodity? Who are the actors shaping such a cross-border market for real estate and who remains excluded from participating in it? Which types of interrelations do local and supranational legal systems have in ordering property rights and other legal interests in what is otherwise considered the quintessential location-fixed asset? How are law, economics, politics, and culture likely to interact in the context of land in an age of increasing globalization?

This chapter underscores the tension between the conceptual oddity and practical significance of cross-border effects of land law, and shows how the scope and nature of such extraterritorial implications have changed significantly over the past few decades in view of certain political, economic, and social processes. This turn of events constantly puts pressure on national legal systems that had traditionally viewed this field as literally embodying the law of the land. At the same time, current market trends toward globalization are far from resulting in clear-cut convergence among legal systems or in a shift of the mainstay of legal ordering to the supranational realm. This chapter analyzes the inherent dilemmas and challenges that land law faces in adequately addressing the changing landscape of real estate in the age of globalization.

January 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Everyone Hates Penn Station

Slate summarizes:

New Yorkers are known to disagree about a lot of things. Who’s got the best pizza? What’s the fastest subway route? Yankees or Mets? But all 8.5 million New Yorkers are likely to agree on one thing: Penn Station sucks.

There is nothing joyful about Penn Station. It is windowless, airless, and crowded. Some 650,000 people suffer through Penn Station on a their daily commute—more traffic than all three of the New York area’s major airport hubs combined.

[...] Though Penn Station is a drab, low-ceilinged rat maze of a station, it used to be the opposite. It was vast, light-filled, and gorgeous. It was the fourth-largest building in the world when it was finished.

January 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Conference Announcement: Sustainability

Sustainability Conference of American Legal Educators (SCALE)

May 8, 2015

Sandra Day O’Connor College of Law – Arizona State University

The Law and Sustainability Program at the Sandra Day O’Connor College of Law is pleased to announce its First Annual Sustainability Conference of American Legal Educators (SCALE) Conference to be held on May 8, 2015 at the Sandra Day O’Connor College of Law in Armstrong Hall on the Arizona State University Campus in Tempe, Arizona.

This new conference will be an annual, national event for legal academics researching in sustainability-related areas. The conference will offer a unique forum for panels and presentations falling within one or more broad subject matter areas pertaining to sustainability, including but not limited to:

  • Climate Change Law
  • Energy Law
  • Water Law
  • Environmental Law
  • Natural Resources Law
  • Land Use and Zoning Law
  • Agricultural and Food Law
  • Disaster Law

The conference’s inaugural keynote speaker will be Professor Daniel Esty, Director of the Yale Center for Environmental Law & Policy at Yale Law School.

Presenters who are interested will also have an opportunity to join in an organized hike of a nearby mountain on the morning of Saturday, May 9, 2015.

For information on how to submit panel or presentation proposals, please click here.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Van der Walt & Raphulu on the Right of Way of Necessity

Andre Van der Walt (Stellenbosch) & Tshilidzi Raphulu (Stellenbosch) have posted The Right of Way of Way of Necessity: A Constitutional Analysis (Journal of Contemporary Roman-Dutch Law) on SSRN.  Here's the abstract:

The aim of this contribution is to present a constitutional analysis of the legitimacy and justifiability of the common law principles that regulate the judicial granting of a right of way of necessity. A right of way of necessity is a peculiar servitude of way that enables the owner or user of landlocked land (dominant tenement) to gain access to public transport network systems over neighbouring land (servient tenement) in a situation where the dominant tenement is geographically cut off from any access to a public road or where the available access is not sufficient for optimal use and exploitation of the dominant land. More particularly, the right of way of necessity is characterised by the circumstance that the servitude is imposed by judicial order (ex lege), based on compliance with certain common law requirements, without the permission of the servient owner and even against his will.

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

What Happens to Dead Malls?

The New York Times takes a look at the growing number of malls across America that have failed:

The Owings Mills Mall is poised to join a growing number of what real estate professionals, architects, urban planners and Internet enthusiasts term “dead malls.” Since 2010, more than two dozen enclosed shopping malls have been closed, and an additional 60 are on the brink, according to Green Street Advisors, which tracks the mall industry.

Premature obituaries for the shopping mall have been appearing since the late 1990s, but the reality today is more nuanced, reflecting broader trends remaking the American economy. With income inequality continuing to widen, high-end malls are thriving, even as stolid retail chains like Sears, Kmart and J. C. Penney falter, taking the middle- and working-class malls they anchored with them.

One factor many shoppers blame for the decline of malls — online shopping — is having only a small effect, experts say. Less than 10 percent of retail sales take place online, and those sales tend to hit big-box stores harder, rather than the fashion chains and other specialty retailers in enclosed malls. Instead, the fundamental problem for malls is a glut of stores in many parts of the country, the result of a long boom in building retail space of all kinds.

January 6, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

Tough to Find Buyers for Middle-Finger Building


Developers are struggling to sell some of the most infamous condo units in Washington, D.C:

One of Washington’s most notorious pieces of real estate — a rowhouse-turned-sky-high condo on V Street NW that soars three stories over its immediate neighbors — is struggling to sell its most premium units.

The three-unit condo building, dubbed The Ava, has gone nearly 12 months without selling its middle unit and penthouse. Dropping the prices to just under $700,000 and $800,000, respectively, has yet to yield buyers. (The less-expensive bottom unit sold in August for $375,000.) The average number of days on the market for a condo in the building’s immediate vicinity, along the coveted U Street corridor, is about 19 days, according to a report generated by Adam Turek, a Coldwell Banker Realtor who had clients tour the building in the spring and pass on it.

[...]  People who live next to The Ava have little sympathy. They understand that developers have the legal right to expand two-story rowhouses by stretching them upward and carving them into multiple condo units. But they think The Ava took the concept too far.

January 5, 2015 | Permalink | Comments (0) | TrackBack (0)

Takacs on Internatonal Environmental Injustice

TakacsDavid Takacs (Hastings) has posted Protecting Your Environment, Exacerbating Injustice: Avoiding 'Mandate Havens' (Duke Environmental Law & Policy Forum) on SSRN. Here's the abstract:

To compensate for a grave environmental injustice -- climate change caused by industrial pollution -- Northern legal solutions should not exacerbate the problem. In this article, I describe how environmental goals are undermined when domestic nations of the North implement greenhouse gas reducing laws, and I offer some solutions towards ensuring that laws aimed to improve domestic environments and to mitigate the externalities of Northern consumption actually contribute to a more just world. Drawing on the concept of "pollution havens," I introduce the concept of "mandate havens," i.e. Northern laws mandating environmental protection that have detrimental impacts in the South. I focus on how mandate havens result from laws requiring biofuels production and from laws that implement REDD , and I present models for how governments, businesses, and private citizens can work across national boundaries to mitigate environmental injustice both through reducing pollution back home while alleviating poverty and protecting local ecosystems abroad.

January 5, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Top SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:

1.  [129 downloads]  The Justice of Private Law
      Hanoch Dagan (Tel Aviv) & Avihay Dorfman (Tel Aviv)

2.  [124 downloads]  Regulating Mortgage Leverage: Fire Sales, Foreclosure Spirals and Pecuniary Externalities
      Albert A. Zevelev (Penn)

3.  [123 downloads]  Probate Law Meets the Digital Age
      Naomi Cahn (George Washington)

4.  [104 downloads]  Doctrinal Categories, Legal Realism, and the Rule of Law
      Hanoch Dagan (Tel Aviv)

5.  [104 downloads]  Libertarianism and Originalism in The Classical Liberal Constitution
      Ilya Somin (George Mason)

6.  [101 downloads]  Using the New Equal Protection to Challenge Federal Control Over Tribal Lands
      Alexander Tallchief Skibine (Utah)

7.  [83 downloads]  The Federal Public Trust Doctrine: A Law Professors' Amicus Brief
      Michael C. Blumm (Lewis & Clark) & Lynn Schaffer (Lewis & Clark)

8.  [81 downloads]  Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules
      Giuseppe Dari-Mattiacci (Amsterdam) & Carmine Guerriero (Amsterdam)

9.  [77 downloads]  Contractual Indescendibility
      David Horton (Davis)

10.  [74 downloads]  Reforming Property Law to Address Devastating Land Loss
       Thomas W. Mitchell (Wisconsin)

January 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

Map of the Day: What America Wanted for Christmas

The New York Times worked with Google to uncover the popular gift ideas in various cities across the United States. Rather than centering on our long-term desires, the algorithm highlighted current trends by focusing on searches for things that were more popular this year than last.

Here’s a map Quartz made of their findings:


December 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

Police Patrols in Public Housing Projects

Is pubic housing over-regulated and over-policed?:

In New York housing projects, police officers can demand identification from people who are hanging out in a public space, like a building lobby. Even if they prove that they live in the building, officers may cite them for “lingering.”

It is not a crime, but it is a violation of the New York City Housing Authority’s rules.

There are many such rules that govern life in the projects, like no playing in the hallways and no barbecuing without a permit. Breaking any of them can put a tenant at risk of eviction from a system that offers some of the city’s most affordable housing. Simply waiting outside for a pizza delivery can draw the attention of the police, said Ronald Thomas, 24, who described being approached by two officers recently in the Red Hook Houses in Brooklyn. Only the deliveryman’s arrival spared Mr. Thomas a citation, he said. Amid broader calls to ratchet down the pressure on low-level crimes, little scrutiny has been paid to a routine patrol tactic used by the Police Department: In public housing, officers walking a beat are watching not only for offenses big and small but also for behavior that is not illegal at all.

December 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Ryan on Property Exempt from Local Zoning Ordinances in Kentucky

Christopher Ryan (Vanderbilt Grad Student) has posted Old School: A Recommendation for the Treatment of the Disposition of Property Exempt from Local Zoning Ordinances in Kentucky (Kentucky Journal of Equine, Agriculture, & Natural Resources Law) on SSRN.  Here's the abstract:

The legal treatment of the conveyancing of exempt property, such as property used for educational purposes, is both complex and inconsistent. Unlike ordinary properties, properties used for education are exempt from local zoning ordinances and even local tax codes. Thus, the conveyance of the property to a private entity and its later use for non-public purposes subjects the property both to zoning ordinances and tax regulation. But, as a matter of course, should this be the case? This article examines what happens when an exempt piece of property, specifically property used for the purpose of public education, is sold in Kentucky. The article also makes a recommendation about the disposition of exempt property. Part II of this Article reviews the change in population in the Commonwealth in greater detail and the effect that this change has on the use of public infrastructure, specifically demonstrated by the overabundance of disused public facilities. Part III unpacks the origins and facets of zoning regulation. Part IV discusses nonconforming uses and analogizes exempt properties to nonconforming properties. Part V addresses the current treatment of these kinds of properties in Kentucky and extra-jurisdictional methods for treating the sale of exempt property and properties with nonconforming uses. Finally, Part VI focuses on the central question of how the sale of exempt property should be treated in two prongs: (1) incorporation into zoning ordinances after disposition, and (2) the elements, if any, of exemption that should carry over to the new property, recommending an approach to incentivize the efficient use or sale and adaptive reuse of disused, exempt property.

December 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

The Year's Worst Moments in Architecture


Kriston Capps puts together a list of the worst projects to pop-up in 2014. 

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

Atuahene on Land Restitution in South Africa

Atuahene_Bernadette_250pxBernadette Atuahene (Chicago-Kent) has posted The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa (Law and Social Inquiry) on SSRN.  Here's the abstract:

One of the most replicated findings of the procedural justice literature is that people who receive unfavorable outcomes are more likely to believe that the process was nonetheless legitimate if they thought that it was fair. Using interviews of 150 people compensated through the South African land restitution program, this article examines whether these findings apply in the transitional justice context where it is often unclear who the winners and losers are. The question explored is: When all outcomes are unfavorable or incomplete, how do people make fairness assessments? The central observation was that the ability of respondents and land restitution commission officials to sustain a conversation with each other had the greatest effect on whether respondents believed that the land restitution process was fair. The study also contributes to the existing literature by exploring the institutional arrangements and resources necessary to facilitate communication and to overcome any communication breakdowns encountered.

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

Thursday, December 25, 2014

Merry Christmas!

Merry X-mas, Happy Hanukkah, and a festive New Year, from my family to yours.  Normal blogging will return next week.


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

Friday, December 19, 2014

Denmark Challenges Russia (and Canada) for Control of the North Pole

Yes, that Denmark:

In time for Christmas, Denmark has claimed Santa Claus's home -- the North Pole. Although it might seem like a joke, Denmark's wish to expand its influence in the Arctic is part of a serious geopolitical struggle: Canada and Russia also claim the spot.

It all comes down to future revenue sources. According to a 2008 U.S. Geological Survey the Arctic Circle might hide between 13 and 30 percent of the world's undiscovered oil and gas resources under a thick layer of ice. Climate change and the melting of glaciers are expected to make much of those resources accessible to drilling and mining faster than expected, as two new studies suggested this week. Melting ice could also open new transport routes and benefit those who control them.

But why was Denmark -- a relatively small country, even for European standards -- able to enter the fight with Canada and Russia in the first place? Neither France nor Germany has yet to make such a claim, let alone some of its Nordic neighbors. It's because the Kingdom of Denmark possesses the semi-autonomous country of Greenland, located right next to the Arctic.

December 19, 2014 | Permalink | Comments (0) | TrackBack (0)

McCarl on Unpopular Rules in Common Interest Communities

MccarlRyan McCarl (Independent) has posted When Homeowners Associations Go Too Far: Political Responses to Unpopular Rules in Common Interest Communities (Real Estate Law Journal) on SSRN.  Here's the abstract:

Common Interest Communities (CICs) are an increasingly ubiquitous form of homeownership and land use control in the United States. The statutory and common law frameworks that govern CICs are characterized by deference to homeowners association (HOA) actions. While courts have generally deferred to HOA decisions, however, the political branches of government — legislatures at the federal, state, and local level — have increasingly intervened to carve out specific, discrete rights for homeowners that override the rules of CICs, creating rights to keep a pet, hang a clothesline, and fly an American flag, among others. As yet, no article has attempted to explain why legislatures have repeatedly stepped in to carve out limited exceptions to the general rule of deference to HOA decisions.

In this Article, I suggest reasons why some owner-HOA disputes trigger political intervention, even though most such disputes attract little attention outside the CIC. I argue that homeowner-HOA conflicts are most likely to attract political attention where the owner is a sympathetic litigant able to attract political empathy, and where the rule at issue is intrusive and salient rather than relating to something perceived as of minimal importance. Finally, if the homeowner’s cause aligns with an interest group and does not trigger opposition from a different interest group, the owner’s chance of triggering political change is likely to be significantly increased.

December 19, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

A Visual Argument for Public Transportation


According to highway engineer Matt Taylor, Manhattan would need 48 more bridges and an underground parking lot equivalent the size of the entire island if everyone drove to work.

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

Miller on Food Safety and Land Use Law

Stephen-miller-profileStephen Miller (Idaho) has posted Cultivating Candide's Foodshed: A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe (American Journal of Law and Medicine) on SSRN.  Here's the abstract:

Much has been written about the rise of the local food movement in urban and suburban areas. This essay tackles an emerging outgrowth of that movement: the growing desire of urban and suburban dwellers to engage rural areas where food is produced not only to obtain food but also as a means of tourism and cultural activity. This represents a potentially much-needed means of economic development for rural areas and small farmers who are increasingly dependent on non-farm income for survival. The problem, however, is that food safety and land use laws struggle to keep up with these changes and, as a result, often waffle between over-regulation and de-regulation. This essay posits a legal path forward to steer clear of regulatory extremes and to help the local food movement grow and prosper at the urban fringe.

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

Tuesday, December 16, 2014

Apply for a Fellowship at Harvard



PURPOSE: The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law.   Applicants should be aspiring academic with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law unjust enrichment, restitution, equity, and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law. The Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Project pursuing publishable research that is likely to make a significant contribution to the field of private law, broadly conceived. More information on the Center can be found at:

PROGRAM: Postdoctoral Fellowships in Private Law are full-time, two-year residential appointments starting in the Fall of 2015. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Project does not impose teaching obligations on fellows, although fellows may teach a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on private law, and other events designated by the Project. Fellows are also expected to help plan and execute a small number of events during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Project also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor its Student Fellows.  Finally, fellows will be expected to blog periodically (about twice per month) on our collaborative blog, which is under development.

STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with office space, library access, and a standard package of benefits for employee postdoctoral fellows at the Law School.  The annual stipend will be $50,000 per year.

ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in law. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship in private law and theory. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement.

APPLICATION: Applications will be accepted starting December 15, 2014. Completed applications must be received at by 9:00 a.m. on February 2, 2015. Please note that ALL application materials must be submitted electronically, and should include:


1. Curriculum Vitae

2. PDFs of transcripts from all post-secondary schools attended.

3. A Research Proposal of no more than 2,000 words describing the applicant’s area of research and writing plans. Research proposals should demonstrate that the applicant has an interesting and original idea about a research topic that seems sufficiently promising to develop further.

4. A writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting, original ideas. This can be a draft rather than a publication.  Applicants who already have publications may also submit PDF copies of up to two additional published writings.

5. Three letters of recommendation, emailed directly from the recommender. Letter writers should be asked to comment not only on the applicant’s writing and analytical ability, but on his or her ability to generate new ideas and his or her commitment to pursue an intellectual enterprise in this area. To the extent feasible, letter writers should provide not just qualitative assessments but also ordinal rankings. For example, rather than just saying a candidate is “great,” it would be useful to have a statement about whether the candidate is (the best, in the top three, among the top 10%, etc.) among some defined set of persons (students they have taught, people they have worked with, etc.).

All application materials with the exception of letters of recommendation should be e-mailed by the applicant to Letters of Recommendation should be emailed directly from the recommender to the same address.


For questions or additional information, contact:

Bradford Conner, Coordinator,

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

Holligan on the Criminalization of Squatting

HolliganBonnie Holligan (Sussex) has posted Criminalisation of Squatting: Scottish Lessons? (Book Chapter) on SSRN.  Here's the abstract:

“Squatting” has long been a criminal offence in Scotland, with the relevant legislation dating back to Trespass (Scotland) Act 1865. This chapter considers the historical origins of the criminalisation of squatting in Scotland, connecting the concerns about mobile and marginalised populations which led to the enactment of the 1865 Act to the politics of squatting and homelessness today. Through investigation of archive sources, the chapter maps the extent and circumstances of the Act’s past use by police and raises concerns about the impact of criminal penalties on today’s marginalised populations.

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