May 17, 2012
"Property Law" at law school
I didn't take a course in "Property" in my New Zealand LLB; rather, I took courses in "Land Law" and "Equity and Succession". Some thoughts:
* The basis of Land Law was the Torrens system and issues around indefeasibility, though of course estates in land, the relationships of landlord/tenant and mortgagor/mortgagee, easements, adverse possession, etc were part of the paper.
* Equity and Succession covered trusts, wills, and equitable jurisdiction (though in NZ, common law and equity are in a single court system - and some would say are "fused", at least to some extent). This also considered realty vs personalty.
* Personal property and intellectual property were generally part of optional courses.
What this means is that the rule against perpetuities was part of Equity, rather than "Property" (and in New Zealand we have a Perpetuties Act, which generally makes things much easier). It seems to be an obsession of US teachers (and students) of "Property"!
The failing of this system, however, was the lack of an overview of "Property" as a whole. It is one thing to learn about land registration, estates in land, trusts, and so on - but quite another to miss out on "what is property?" (particularly given my earlier comments on the lack of graduate law courses in property). On the other hand, that has had the benefit of discovering Rose, Heller, Gray, Merrill and Smith by reading them, rather than being taught them - which might be the best way to learn.
But what do the Americans think - is the rule against perpetuities here to stay in the first-year Property course? Does it belong somewhere else? Will the first-year Property course itself remain in its current (varied) forms?
February 08, 2012
Keep a Very Close Eye on the Foreclosure Fraud Settlement
It seems as though every day for weeks now we've been told a settlement between state attorneys general and fraudulent foreclosers -- by which I mean the largest home mortgage lenders in the country -- is imminent. The banks appear to be balking because they expected the type of suit filed by New York Attorney General Eric Schneiderman to be prohibited under the settlement -- but since Schneiderman is one of the key players in the settlement talks, there seems to have either been a serious misunderstanding or a serious play for leverage by Schneiderman. For an excellent analysis of the negotiations, and of the foreclosure crisis generally, I can't recommend Yves Smith's blog Naked Capitalism highly enough.
One issue that MUST be non-negotiable is the ability of people who were wrongfully foreclosed upon to maintain civil suits against their foreclosers. There is no indication that such suits will be barred under the settlement, but since the negotiations are not transparent we can't know until the settlement is announced. My first year property students have now spent weeks studying the crisis -- in part because I'm hoping to ready these young lawyers-to-be to take up the fight to ensure that foreclosure fraud doesn't pay and that its victims receive restitution. But if the state attorneys general negotiate away the only avenue victims of wrongful foreclosure have for relief, it will be the final injustice in a long, long line of them in this crisis. Not to mention a defeat for the rule of law.
For a very good discussion of how we should assess the settlement, when it is finally arrived at and released to public scrutiny, see this article by Richard Eskow.
Mark A. Edwards
January 10, 2012
Hubbard, Palia, & Yu on Discrimination in the Mortgage Market
Glenn Hubbard (Columbia- Business), Darius Palia (Rutgers - Business), and Wei Yu (Cal State Poly - Business) have posted Analysis of Discrimination in Prime and Subprime Mortgage Markets. Here's the abstract:
This paper examines evidence of lending discrimination in prime and subprime mortgage markets in New Jersey. Existing single-equation studies of race-based discrimination in mortgage lending assume race is uncorrelated with the disturbance term in the loan denial regression. At the individual loan-level, we show that race is correlated with both observable and unobservable risk variables, leading to biased coefficient estimates. To mitigate this problem, we specify a system of equations and use a full information maximum likelihood (FIML) method that does not need to identify instrumental variables for system identification. We find that minorities are less likely to be rejected than whites in the subprime market. The individual loan-level FIML results are robust to using two-stage least squares when we examine discrimination at the neighborhood-level. We also find that the reduction in rejection rates to minority neighborhoods from 1996 to 2008 cannot be fully justified by risk, suggesting a relaxation of lending standards to minority neighborhoods. Using the methodology of Mian and Sufi , we also find evidence for strong credit supply effects.
November 07, 2011
Ellickson on the Costs of Complex Land Titles
Robert Ellickson (Yale) has posted The Costs of Complex Land Titles: Two Examples from China on SSRN. Here's the abstract:
Chinese customs and law have traditionally prevented a land seller from conveying outright title to a buyer. The ancient custom of dian, which persisted until the 1949 Revolution, gave a land seller and his lineage an immutable option to buy back sold land at the original sale price. This little-analyzed custom discouraged soil conservation and land improvements, and, especially after 1600, contributed to China’s inability to keep pace with England.
After calamitous experiences with land collectivization between 1951 and 1981, China’s Communist government began to confer private land-use rights. But, instead of making outright sales, it chose to award contractual rights only for a fixed-term, for example, 50 years in the case of an industrial parcel. For the same reasons dian did, this policy threatens to impair China’s prospects of economic development.
August 09, 2011
Call for Papers on Land Tenure
The United Nations Human Settlements Programme, concluded that more than one billion people live without any security of tenure in informal settlements in “developing” countries. If “land is not just a resource to be exploited, but a crucial vehicle for the achievement of improved socioeconomic, biological, and physical environments” (FAO), then access to land ensures the security and health of the poor. The politics of access to and exploitation of land and natural resources assume fundamental relations of power control and the policy of social inclusion; however, both notions imply and consolidate that access to land and land ownership, particularly in the Global South, reflect broader patterns of intra-institutional dynamics that explain how marginality and socio-political exclusion take place within countries and on the global stage.
April 28, 2011
Property Issues and the Royal Wedding
A childhood full of playing Dungeons & Dragons and trading Magic: The Gathering cards has left me far too interested in the Royal Wedding (it is, sadly, the closest I'll ever get to wearing chain mail or wielding a broad axe). Luckily, there's at least a little overlap between my scholarly interests and the pageantry of Will and Kate's nuptuials. As far as I can tell, the wedding raises at least three property issues:
1. The shortage of hotels has inspired many Londoners to rent out their homes and become temporary landlords. One expert estimates that London homeowners stand to take in an estimated $170 million in rents during this week. Prices range from $50 a night for a single room in a private home to more than $6,000 a week to rent an entire house in central London.
2. Royal watchers are gossiping about whether Kate and Will have signed a prenuptial agreement. Family Law Solicitor Louise Liu speculates that even though William is worth $45 million, it's unlikely he's been encouraged to get a prenup with Kate. According to Liu, while prenups are routine in the U.S., they are persuasive but not legally binding in England.
3. What titles will the Queen bestow on William and Kate? All titles are gifts from the monarch, so it is the Queen's perogative to choose which one to grant to her grandson and his new wife. As the Telegraph explains, "Tradition dictates that royal men receive a title on their wedding - and often more than one." Leading contenders include the Duke of Cambridge, the Duke of Sussex, and the Duke of Clarence. A couple of Duchies produce serious income. Prince Charles' Duchy of Cornwall estate, which stretches over 135,000 acres in the south-west of England, has an estimated value of $1 billion (647 million pounds) and produces $25 million a year in profits. One final note on titles; according to tradition Kate would not become HRH Princess Catherine of Wales because she is not a Princess in her own right. Instead, she becomes HRH Princess William of Wales.
If you're looking for me tomorrow, I'll be the guy having tea and crumpets, glued to the TV.
April 25, 2011
Watson on the Doctrine of Discovery
Blake Watson (Dayton) has posted The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand (Seattle U. Law Review). Here's the abstract:
This article describes the impact of the American doctrine of discovery, as set forth in Johnson v. McIntosh, 21 U.S. 543 (1823), on native land rights in Australia, Canada, and New Zealand.
March 24, 2011
Does the County Recorder's Office Have a Photocopier?
Maybe, like me, when you teach your students about recording acts and title searches, you tell them the county officials they'll need to work with to complete a title search are helpful.
On the other hand, maybe not so much . . . .
From the Cleveland Plain-Dealer comes this account of an exchange between a Cuyahoga County Recorder's Office official (Patterson), and an attorney (Marburger) who is deposing him about the presence, or absence, of a photocopier in the office, under the watchful eye of defense counsel (Cavanagh).
Marburger: During your tenure in the computer department at the Recorder's office, has the Recorder's office had photocopying machines?
Marburger: Any photocopying machine?
Patterson: When you say "photocopying machine," what do you mean?
Marburger: Let me be -- let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?
Patterson: No. I want to make sure that I answer your question correctly.
Cavanagh: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.
Marburger: I didn't ask him to define it. I asked him if he had any.
Patterson: When you say "photocopying machine," what do you mean?
Marburger: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?
Apparently he cannot. It continues . . . .
Cavanagh: There's different types of photocopiers, Dave.
Marburger: You're speaking instead of -- you're not under oath. This guy is.
Cavanagh: I understand that, but I understand what his objection is. You want him to answer the question, but I don't think it's fair.
Marburger: It's not fair?
Cavanagh: It's not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.
Marburger: I don't care what kind of technology it uses. Has your offices -- we don't have technocrats on the Ohio Supreme Court. We've got people like me, general guys --
I love that objection; apparently defendant's counsel objects to plaintiff's counsel's description of himself as a general guy. But there's more . . . .
Patterson: I understand that there are photocopying machines, and there are different types of them just like --
Marburger: Are there any in the Recorder's office?
Patterson: -- there are different cars. Some of them run under gas power, some of them under electric power, and I'm asking if you could help me out by explaining what you mean by "photocopying machines" --
Marburger: That's a great point.
Patterson: -- instead of trying to make me feel stupid.
Marburger: If you feel stupid, it's not because I'm making you feel that way.
At this point, if my 14 year-old were here, he'd be yelling something like 'pwnned!', which apparently means 'owned,' which in human apparently means 'that was a zinger.' But wait! Perhaps if plaintiff's counsel could simply re-phrase the question, we could find an answer that makes everyone happy . . . .
Marburger: Have you ever--do you have machines there where I can put in a paper document, push a button or two, and out will come copies of that paper document also on paper? Do you have such a machine?
Patterson: Yes, sir.
Marburger: What do you call that machine?
And good luck with that title search, students.
Then again, there are photocopiers, and then there are photocopiers, as we learned from The Wire:
Mark A. Edwards
[comments will be held for approval, so there will be some delay in posting]
January 10, 2011
Foreclosures and the Failure of the American Land Title Recording System
I have just posted an essay to SSRN entitled "Foreclosures and the Failure of the American Land Title Recording System." In it, I argue for the federalization of the land title recording system. Here is my abstract:
In this essay, Marsh argues that the current foreclosure crisis should serve as a wake-up call for a long-overdue modernization of the American land title recording system. Lenders invented the Mortgage Electronic Registration System (MERS) because the land title system, developed in a far different time and place, failed to meet the needs of the modern real estate industry. But a private MERS-like system is not the answer. Instead, Marsh argues that the federal government should implement a solution that replaces both the existing local land title system and MERS.
An ideal system should be organized around some clear principles. It should be transparent. It should be easy to search, through dynamic, robust indexing, and easy to access, preferably through the Internet. Documents in PDF form should be downloadable. Electronic filing should be facilitated. There should be uniformity and consistency in the rules governing the form and substance of documents eligible for recording. The system should be public. Establishing and protecting a clear registry of property interests is and should continue to be an essential function of government.
Any feedback would be greatly appreciated!
[Comments will be held for approval and may be delayed]