PropertyProf Blog

Salkin on Community Benefit Agreements

Patricia Salkin (Albany Law School) has posted Understanding Community Benefit Agreements: Opportunities and Traps for Developers, Municipalities and Community Organizations on SSRN.  Here's the abstract:

A Community Benefits Agreement (CBA) is a private contract negotiated between a prospective developer and community representatives. In essence, the CBA specifies the benefits that the developer will provide to the community in exchange for the community's support of its proposed development. The validity and enforceability of CBAs has yet to be tested in court, but some have expressed concerns that the agreements will not hold up. Chief among the questions as to the validity of CBAs is whether community groups provide any real consideration for these contracts. Questions have also been raised as to who can enforce a CBA's provisions. Enforceability questions may also concern which parties are bound by developers' promises. Because the process of negotiating CBAs often involves local governments or elected officials, CBAs may also raise legal issues related to the propriety of planning process. While CBAs represent an opportunity to accomplish redevelopment projects in a manner that achieves social equity and engages all community stakeholders in the project with an eye towards designing a process and product that can be win-win for communities, myriad legal issues are present for all involved participants. This paper provides an overview of legal and policy implications of CBAs, highlighting how this new tool is currently utilized in a number of communities across the country.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Making Apartments Smoke Free: Erosion of Private Property Rights?

The New York Times today reported that an increasing number of U.S. cities have enacted legislation restricting the ability of residents in multi-unit residential buildings to smoke inside their apartments. (It also discussed increased anti-smoking restrictions in public housing units.)

Both public and private efforts to restrict smoking inside these residential buildings seek to minimize the effects of secondhand smoking and protect the rights of residents (who are against smoking) to enjoy their property.  Their efforts, however, consequently impact the rights of property owners.   Although there are private real estate companies that have adopted smoke-free policies in their apartments, others in the real estate industry have complained that smoke-free legislation constitutes "an erosion on private property rights."

In at least one case last year, residents prevailed in a non-payment of rent dispute after they left their apartment because the owner and the building management failed to address their complaints about their neighbor's smoking.  Apparently, secondhand smoke began seeping into their unit. The judge explained that, "secondhand smoke can constitute a breach of the warranty of habitability because under [New York]’s Real Property Law, every written and oral lease contains an implicit warranty that the premises are fit for human habitation and that tenants cannot be subjected to any conditions detrimental to life, health or safety."

Rose Cuison Villazor

[Comments are held for approval so there will be delay in posting.]

Salkin on Sprawl

Patricia Salkin (Albany Law School) has posted Squaring the Circle on Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use in the States on SSRN.  Here's the abstract:

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels,this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the war on sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Alexander and Penalver on Properties of Community

Greg Alexander and Eduardo Penalver (Both of Cornell Law School) have posted Properties of Community on SSRN.  Here's the abstract:

Theories of property presuppose conceptions of community, and of the individual's relationship to community. In contrast to the dominant theories of community at work within most Anglo-American property theorizing, which view community obligations as fundamentally instrumental and contractual, we propose in this paper a theory that views the relationship between the individual and community as constitutive and substantive. Human beings' dependence on others to flourish imposes on political communities and their individual members a shared obligation to foster and contribute to the creation and maintenance of those structures necessary for that flourishing. This obligation in turn qualifies individual rights of property, empowering, and, under the right circumstances, compelling the state to take from some in order to safeguard access to needed resources for others.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]