PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Tuesday, June 10, 2014

Parking Lots Are Bad For Downtowns

The Atlantic Cities blog looks at the scourge of downtown parking lots:

Whether you agree with their premise or not, there’s no arguing that huge surface parking lots create an atmosphere that is inherently hostile to the pedestrian: dull, unbearably hot in summer, windswept in all seasons, and potentially menacing, especially to women returning to their cars alone after dark.

In the Streetfilms short, Garrick talks about the way that guaranteed parking for government employees in the state capital of Hartford, Connecticut, has created an effective moat between the city’s historic residential neighborhoods, many of which have rows of fine brownstones, and its downtown, which has been gutted of small-scale employers and services.

[...] Garrick says that some cities, such as Cambridge, Massachusetts, and more recently Washington, D.C., have made good headway in reversing the trend toward massive parking lots that overwhelm the human scale and lead to downtowns devoid of people. “It’s very hard for people to realize, and it’s very hard to prove that planning is the reason,” says Garrick. “But this is the result of planning.” Better planning, he says, could mean a restoration of cities where the streets are for people, not cars.

June 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Miller on Rural Economic Development

Stephen Miller (Idaho) has posted Three Legal Approaches to Rural Economic Development (Kansas Journal of Law & Public Policy) on SSRN. Here's the abstract:

Rural life has long been vaunted in American culture for its moral compass, hardworking spirit, and sense of community and place. At the same time, the percentage of Americans living in rural communities has been shrinking for generations, and American life has been predominantly urban for over a hundred years. In turn, America has fretted — since the country’s very inception — about the effects of urbanization on rural life, and in turn, how the loss of rituals of rural life would affect society generally. These changes in rural life are redoubled by a massive shift in rural economies since World War II: agriculture, once synonymous with the rural way of life, has become so efficient that it no longer serves as a viable source of jobs for rural people despite providing record profits for agricultural corporations.

This symposium essay takes on these challenges presented to rural economies by sketching out several roles law can play in rural economic development efforts. As rural economic development law depends upon both national and regional contexts, the essay first provides a background summary of the status of rural America. The essay then proceeds to provide background on the practice of rural economic development as it has traditionally been practiced. Finally, the essay sketches three effective legal approaches to rural economic development: “bottom up” planning mandates; redefining plans, zoning and other codes to reflect non-agricultural economic production; and identifying evaluating and disclosing risks of government involvement in rural economic development.

June 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

Canadian Takings Law Update

Doug Harris (UBC) had an op-ed yesterday in the Vancouver Sun about some recent developments regarding the land that was the subject of the Supreme Court of Canada’s most recent foray into regulatory takings. The case is CPR v. Vancouver, 2006 SCC 5.  A brief recap of the facts: "In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. " Doug also has a terrific, more academic piece on the case up on SSRN.  It's here.

June 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Map of the Day: A Billionaire Could Buy Your Whole City


Slate captions the map above:

And yes, this is one of those stunt maps generated by a corporate PR department to get their name out on social media. But it’s a particularly fun one, and the methodology isn’t completely absurd. Redfin apparently added up MLS home sale prices for each city, then multiplied them for a total. So, as they put it, if 10 percent of homes sold for $1 billion total, then they decided the city’s housing stock was worth $10 billion. It's not exactly airtight, and of course it leaves out commercial real estate. (Also, if we wanted to be reallllly nitpicky, the mere act of buying up mass tracts of housing would probably drive up prices across a metro area.) But in you ever find yourself wondering which modern plutocrat could theoretically afford to turn your city into his own fiefdom (without running for mayor), now you have a rough guide.

June 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Babie on Property & Religion in a Secular World

PaulPaul Babie (Adelaide) has posted Private Property in Post Secular Law: An Introductory Foray (Queensland Law Journal) on SSRN.  Here's the abstract:

In the global, plural, post-secular legal environment which characterises twenty-first century life, three reflections assist in considering the contribution of Judaism, Christianity and Islam to a re-conception and re-deployment of private property, as a concept, within the broader structures of capitalism and global markets. Such engagements and dialogue between secular law and theology/religion may reveal that what was always viewed as 'secular' law is not really secular at all, and that what is emerging now is a truly post-secular law, one that depends not only upon liberalism but upon overlapping religious anthropologies and cosmologies. The three reflections offered in this article converge on one alternative model, among many, to the standard liberal account of private property, which may in turn sow the seeds of a post-secular model of private property.

June 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

Arnold on Adaptive Water Law

TonyTony Arnold (Louisville) has posted Adaptive Water Law (Kansas Law Review) on SSRN.  Here's the abstract:

U.S. water law can be static, rigid, and fragmented, using legal arrangements to give a false sense of security against change. These characteristics are maladaptive to changing conditions and sudden disturbances, as illustrated by conflict in the Colorado River system over decreasing water quantities, tensions between groundwater management and private property rights in Texas, and litigation over nutrient runoff in the Mississippi River basin. Water law must become more adaptive if aquatic ecosystems, legal institutions, and society itself are to be resilient under conditions of change and disturbance. This article applies a relatively new “adaptive law framework” to the field of water law in order to promote social-ecological resilience in water governance. In particular, the article explores three features of an adaptive water law system: 1) shared risk among the system’s stakeholders; 2) conditional and flexible standards, instead of rigid rules, to govern water rights and permits; and 3) integrated water governance. Several examples of watershed planning and governance illustrate various aspects of an adaptive water law system emerging from system participants’ efforts to address water insecurity and rapid transformation of aquatic conditions. These examples include the Santa Ana Watershed Project in California, the Blackfoot Challenge in Montana’s Blackfoot River basin, state-mandated watershed planning in the State of Washington, adaptive management of Kentucky’s Green River, and watershed restoration and regulation in the urban-suburban Anacostia River watershed of Maryland and Washington, D.C.

June 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 4, 2014

The Cities That Sprawled the Most and Least Since 2000

The Atlantic Cities Blog has a couple of neat charts about urban sprawl.  The cities that sprawled the most:



June 4, 2014 | Permalink | Comments (1) | TrackBack (0)

Aplin on Confidential Information as Property

MG8826Tanya Aplin (Kings College London) has posted Confidential Information as Property? on SSRN.  Here's the abstract:

There has been a long-standing debate about whether the protection of confidential information is a property right. The eminent Professor Finn once described this as ‘[p]erhaps the most sterile of debates’. So why risk venturing into this arena again? My motivation for doing so is the Court of Appeal decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (‘Veolia’) where it was held, with fairly sparse reasoning, that Article 1 of the First Protocol of the ECHR (‘A1P1’) embraced confidential information. This seemed a surprising conclusion in light of substantial authority to the contrary in English law and the scholarly views on this issue, but also in terms of the potential impact of such a view, i.e. creating a human or fundamental right to the protection of confidential information. Therefore, I want to revisit the question of whether the protection of confidential information that is provided by the (English common law) action for breach of confidence is or should be recognised as property, in particular from the human rights perspective. I intend to tackle this question by first outlining the Veolia decision and subsequently critiquing it in light of relevant authorities. I will then explore the conceptual difficulties of characterising confidential information as ‘property’ and finally, some of the potential risks of doing so.

June 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 3, 2014

How Much Choice Do Section 8 Tenants Really Have?

A story out of Pittsburgh says the answer is not much:

In 2010, Aishia Shavers applied for a City of Pittsburgh Housing Choice Voucher in the hope that it would get her a decent apartment to live in with her three children. [...]

In February, after four years on a waiting list, she finally got it. With 120 days to find an apartment, she sent out dozens of emails and made dozens of phone calls. She posted an ad on Craigslist announcing her "desperate need" for a housing choice rental in Pittsburgh. But she couldn't find anything. Most of the landlords said they don't accept the vouchers, widely known as Section 8 (after the section of the 1937 Housing Act that authorized them). Many of them never called her back. A few could only show her their apartments when she had to be at work. One landlord had a place open in Homewood. But he said he wouldn't recommend it for a family because it was in a high-crime area, Ms. Shavers said.

When her voucher expired on May 11, she hadn't even toured an apartment.

The problem isn't so much that there are no landlords that take Section 8, but that most of those units are in rough neighborhoods:
An analysis of data from the Housing Authority of the City of Pittsburgh shows that housing choice units in Pittsburgh are disproportionately located in high-poverty, majority-minority neighborhoods like Knoxville, Homewood South and the Middle Hill. In each of those neighborhoods, more than 10 percent of housing was housing choice units in 2011. In Squirrel Hill North and Shadyside, on the other hand, less than a tenth of a percent of the housing was Section 8.

June 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Burke on Ballot Box Zoning

MarcilynnBurkeMarcilynn Burke (Houston) has posted The Emperor’s New Clothes: Exposing the Failures of Regulating Land Use Through the Ballot Box (Notre Dame Law Review) on SSRN.  Here's the abstract:

This Article analyzes the recent trend of regulating land use through ballot initiatives. Most of this activity occurs in jurisdictions west of the Mississippi River, and as the West becomes the new political battleground, the significance of these initiatives continues to grow. Supporters tout ballot initiatives as a positive mechanism of direct democracy, but this Article makes two normative claims to the contrary. First, regulation of land use from the ballot box produces a deliberative failure. Second, such regulation leads to a planning failure. To prove these claims, the analysis focuses on three areas of land use law at both the state and local levels: private property rights; traditional land use regulations; and environmental law. This examination highlights the negative impacts of replacing traditional land use planning and decisionmaking implemented by elected officials with ballot measures decided by an uninformed and oft-manipulated electorate. In so doing, the Article exposes the reality behind the rhetoric of direct democracy. Following this multivariate analysis, the Article makes four proposals for mitigating the harmful effects of legislating at the ballot box. This Article is the first step in a larger project of defusing the rhetoric, with the ultimate aim of making land use law more efficient, ethical, and democratic.

June 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2014

Top SSRN Downloads

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


1.  [215 downloads]  Stealing Fannie and Freddie
     Jonathan R. Macey (Yale) and Logan Beirne (Yale)

2.  [140 downloads]  Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act
     Donald J. Kochan (Chapman)

3.  [103 downloads]  Jurisdiction, Choice of Law and Property
     Daniel M. Klerman (USC)

4.  [89 downloads]  No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem
     Jessica A. Shoemaker (Nebraska)

5.  [87 downloads]  Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, and the Local Food Movement
     Sarah Schindler (Maine)

6.  [85 downloads]  The Elements of Possession
     Henry E. Smith (Harvard)

7.  [80 downloads]  Property Law in a Time of Transformation: The Record of the United States
     Eric T. Freyfogle (Illinois)

8.  [78 downloads]  Property Rights and Climate Change
     Daniel A. Farber (Berkeley)

9.  [78 downloads]  Anaerobic Digestion as a Renewable Energy Source and Waste Management Technology: What Must Be Done for this Technology to Realize Success in the United States?
    Blake Anthony Klinkner (Independent)

10.  [78 downloads]  Passive Takings: The State's Affirmative Duty to Protect Property
      Christopher Serkin (Vanderbilt)

June 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, May 30, 2014

NIMBY Gains a Foothold in China

Alexa Olesen looks that the growing environmental NIMBY protests in China:

The Chinese word for NIMBY is “linbi,” a pairing of the characters for “neighbor” and “avoid” that is meant to allude to the original English phrase in both sound and meaning. The word doesn’t show up in most Chinese dictionaries, a sign of just how young the phenomenon is there (though the definition can be found online). Most trace the beginning of the movement to the peaceful strolling protests and banner-waving that happened in the summer of 2007 in the coastal city of Xiamen that brought to a halt plans for a chemical plant in that city. The tenor of those demonstrations, which were largely organized via SMS, was cooperative and upbeat, not antagonistic.

Not all Chinese NIMBY actions have been so tranquil in the years since. It’s not clear whether this reflects a more aggressive response from police in cities where the protests are happening, or if the protestors are instigating the violence, or some combination of both.

(HT: The Daily Dish)

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

Mattingly on How Political Structures Affect Property Rights

Daniel Mattingly (Berkeley - Ph.D.) has posted The Perils of Power-Sharing: How Representative Institutions Can Weaken the Rule of Law and Property Protections on SSRN.  Here's the abstract:

What limits the power of the state to confiscate wealth? One widely-held view is that the most effective way to strengthen property protections is to introduce "inclusive institutions." However, I argue that formal power-sharing institutions can be used by political leaders as a tool to incorporate influential social elites into the state, strengthening rulers' control over society and weakening property protections. Using evidence from surveys and experiments, I show that when kinship group elites are incorporated into village governments in China it triples the likelihood of land expropriations. While land requisitions in China often benefit villagers, the political co-optation of local elites allows the state to elicit villagers' compliance with expropriations that have negative consequences. These findings suggest that the power of social connections to hold officials accountable in an authoritarian state is limited, and reinforce other work showing that informal institutions can be biased in favor of elites.

May 30, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, May 29, 2014

Map of the Day: Most Commonly Spoken Langugage (Other than English or Spanish)

Language other than english

May 29, 2014 | Permalink | Comments (3) | TrackBack (0)

Murray on Class and Takings

Murray-webYxta Maya Murray (Loyola - LA) has posted Peering (Georgetown Journal on Poverty Law & Policy) on SSRN.  Here's the abstract:

“Peering” designates a legal practice of gazing at poor people. Legal actors literally peer, that is, look at the poor; they also peer in another fashion, which determines whether the visual subject is their peer. If the observed falls short of the observer’s social class, the law fixes them in their “proper place.” In the Fifth Amendment takings context, this means they are at risk for condemnation.

This article traces peering’s evolution in Fifth Amendment law. It notes peering’s initial descent: From the 1920s until the 2000s, courts looked “down” at the poor, often describing them as monstrous. “Slums” – edifices typically depicted as housing contagious subhumans – proved perfect objects of condemnations since they threatened the upper strata. In the 1980s, however, another legal gaze flourished: One that looked “up,” and whose bearers peered themselves with wealthy developers. In cases stemming from Michigan’s 1981 Poletown Neighborhood Council v. City of Detroit to the Supreme Court’s 2005 Kelo v. City of New London, we find rhetoric signaling legislative and judicial alignment with affluence. Here, lawmakers and judges approved condemnations that fostered “world class” and “cutting edge” corporate factories. I call this the ascendant or aspirational gaze, and in its exuberant optics, both the poor and the middle class find themselves vulnerable to “economic rejuvenation” takings. An active lobby of activists and judges challenge this gaze with petit bourgeois perspectives, leading to reform. But the poor submerge in these visuals, finding vanishing chances to escape “blight” condemnations.

To understand and combat peering, I study Columbia University’s recent expansion into West Harlem. I contemplate New York Court of Appeals’ 2010 Matter of Kaur v. New York State Urban Development Corporation, which approved of Manhattanville’s condemnation, and also the political rhetoric and blight reports that justified the taking. I additionally reference interviews with members of the Harlem community, and offer their home photographs as counter‐images to the ones that filled the blight reports. Inspired by the legal history I recount, as well as the testaments and images offered by Harlem residents, I describe the racist, classist, and violent meanings of blight findings. I reject “blight” as unsalvageable, but sketch a Fifth Amendment doctrine that would foster what one Harlem leader describes as a “decent life.”

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

Wednesday, May 28, 2014

The Global Market for Real Estate

A million dollars doesn't go as far as it used to:


The New Yorker takes a look at the real estate market in Vancouver:

The most expensive housing market in North America is not where you’d think. It’s not New York City or Orange County, California, but Vancouver, British Columbia.

[...] Almost by chance, the city has found itself at the heart of one of the biggest trends of the past two decades—the rise of a truly global market in real estate. We’re all familiar with the stories of Russian oligarchs buying up mansions in London, but this is a much broader phenomenon. A torrent of capital from wealthy people in emerging markets—from China, above all, but also from Latin America, Russia, and the Middle East—has flowed into the real-estate markets of big cities in other countries, driving up prices and causing a luxury-construction boom. A recent report by Sotheby’s International Realty Canada examined more than twelve hundred luxury-home sales in Vancouver in the first half of 2013 and found that foreign buyers accounted for nearly half of sales.

[...] The challenge for Vancouver and cities like it is that foreign investment isn’t an unalloyed good. It’s great for existing homeowners, who see the value of their homes rise, and for the city’s tax revenues. But it also makes owning a home impossible for much of the city’s population.

The piece concludes by suggesting that Vancouver might want to levy a tax on foreign owners or restrict them from making real estate purchases.  That seems like a really really terrible idea.  Why not just roll back some of the zoning restrictions in places like New York or San Francisco or Vancouver and increase the supply of housing?  We should be celebrating, rather than lamenting, that rich foreigners want to pay (North) Americans to build expensive stuff.

(HT: Andrew Sullivan)

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

Williams on the Right to Housing in South Africa

WilliamsLucy Williams (Northeastern) has posted The Right to Housing in South Africa: An Evolving Jurisprudence (Columbia Human Rights Law Review) on SSRN.  Here's the abstract:

This Article focuses on recent South African constitutional and statutory jurisprudence regarding the right to housing, and attempts to analyze both its transformative possibilities and its doctrinal limitations. The South African Constitutional Court’s housing rights jurisprudence is more developed than that regarding any other social and economic right contained in the South African Constitution, with eviction cases having been a particular focus of the Constitutional Court. I address three aspects of major recent South African cases relating to the right to housing: the concept of judicially required “meaningful engagement” between government entities and individuals threatened with eviction, the prohibition of unfair practices by landlords and tenants under the Rental Housing Act 50 of 1999, and developments in the concept of just and equitable eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Housing Act 19 of 1998. In each context, I first describe the important ways in which this jurisprudence has benefited the poor and then present a critical perspective identifying both issues of concern and what might be called “unintended consequences.” I conclude by arguing that while the universality and moral force of human rights discourse assists in giving meaning and content to housing rights by exposing the social construction of poverty and by shifting the focus from individual fault and dependency to society’s responsibility, human rights discourse alone provides limited analytical assistance in addressing the difficult economic and institutional questions that must be faced in order to make housing rights a reality.

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

Tuesday, May 27, 2014

How We Think About Place

Every book "about Africa" has the same cover:


Michael Silverberg unpacks the image, first put together by the blog, Africa is a Country:

The texts of the books were as diverse as the geography they covered: Nigeria, Zimbabwe, South Africa, Botswana, Zambia, Mozambique. They were written in wildly divergent styles, by writers that included several Nobel Prize winners. Yet all of books' covers featured an acacia tree, an orange sunset over the veld, or both. "In short," the post said, "the covers of most novels 'about Africa' seem to have been designed by someone whose principal idea of the continent comes from The Lion King." [...]

I asked Peter Mendelsund—who is an associate art director of Knopf, a gifted cover designer, and the author of a forthcoming book on the complex alliances between image and text—to help me understand how the publishing industry got to a place where these crude visual stereotypes are recycled ad nauseam. (Again and again, that acacia tree!)

He points first to "laziness, both individual or institutionalized." Like most Americans, book designers tend not to know all that much about the rest of the world, and since they don't always have the time to respond to a book on its own terms, they resort to visual cliches. Meanwhile, editors sometimes forget what made a manuscript unique to begin with. In the case of non-Western novels, they often fall back on framing it with "a vague, Orientalist sense of place," Mendelsund says, and they're enabled by risk-averse marketing departments.


May 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Rent-Regulated Tenants Excluded From Amenities

The New York Times recently ran a fascinating article on the growing divisions between market-rate tenants and rent-controlled tenants who occupy the same building.  In short, apartment-building-owners are adding amenities that are exclusively for the market-based tenants.  Unsurprisingly, the rent-controlled tenants are upset and feel disrespected:

When a playroom opened in Michael Reilly’s Upper West Side building two years ago, he asked the concierge for a key to the space so his toddler could play there. The concierge’s answer stunned him: It was out of bounds to him and his child.  Mr. Reilly’s building, the Windermere West End, a luxury rental, is one of several in the city that prohibit rent-regulated tenants from using new services like gyms, playrooms and rooftop gardens. Some co-op and condo buildings have similar restrictions. [...]

“It’s a subtle form of harassment. It sends a message: You’re not as good as my tenants who pay more,” said New York State Assemblywoman Linda Rosenthal, who introduced legislation requiring landlords to offer amenities to rent-regulated tenants. Ms. Rosenthal described Stonehenge Village as “the tipping point” in a growing problem. [...]

Developers point to rules governing rent-regulated leases as a reason for restrictions. If a developer offers a gym to a rent-regulated tenant and later decides to remove it, the landlord would have to get permission from the Division of Housing and Community Renewal, the state agency that oversees rent rules. Otherwise, tenants could be entitled to a rent reduction and reinstatement of the service.

(HT: Peter Gerhart)

May 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Odinet on Equity and the Inter-City Competition for Economic Development

CodinetChristopher Odinet (Southern) has posted Fairness, Equity, and a Level Playing Field: Development Goals for the Resilient City (Idaho Law Review) on SSRN.  Here's the abstract:

In the wake of the Great Recession and in the midst of a political climate that endorses the devolution of governmental power to more localized levels there has been a resurgence in recent years of the idea of the city as the center of American life. Competition between cities in capturing economic development projects has become palpable. Success can lead to job creation and growth, private investment, and, importantly, increased tax revenues. Cities often compete with one another by each offering their own package of public incentives. In the waning hours of negotiations hundreds of millions of public dollars can be promised in order to obtain the ultimate prize.

In view of this intense competition cities must be prudent when competing for and championing private projects that are clothed with the mantle of economic development. An unbridled desire for growth can lead to the support of projects that inure to the benefit of the few at the expense of the many. This Article posits that a truly resilient city is one that places equity and fairness at the forefront of its economic development decision-making by creating a level playing field where equal economic opportunity is the centerpiece. And in those cases where it is decided that public resources should be accorded to the benefit of a particular private interest for the greater good, the process from which these decisions ultimately derive must be considered, sober, tempered, and informed. In adopting such a policy view new developments and physical systems, so essential to a city’s success, will be rooted in a philosophy that not only engenders a business climate of opportunity and equality, but also lays an economic foundation for the city to weather future economic storms.

May 27, 2014 | Permalink | Comments (0) | TrackBack (0)