PropertyProf Blog

Can't Avoid Stambovsky, Especially On Halloween

As regular readers know, I really don't like Stambovsky v. Ackley, the famed haunted house case.  So starting last year, I cut it out of my coverage of real estate transactions in first year property.  But many of my students read it anyway, and they rebelled.  So we had some fun discussing it.  And I suppose that I really couldn't avoid it teaching it today of all days.

Ben Barros

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Villazor on Blood Quantum Laws

Rose Cuison Villazor (SMU) has posted Blood Quantum Land Laws and the Race Versus Political Identity Dilemma on SSRN.  Here's the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

Ben Barros

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Bell on Regulatory Takings

Abraham Bell (Bar Ilan/University of Connecticut) has posted Should Decreases in Property Value Caused by Regulations Be Compensated? on SSRN.  Here's the abstract:

This Essay attempts to determine the correct regulatory takings compensation policy given the general doctrinal framework in other bodies of American law. In particular, it addresses the following questions. First, given a compensation requirement for eminent domain, is it sensible to interpret the government's regulatory authority as permitting the elimination of property value without compensation? Second, since regulations often produce benefit as well as harm, how can a regulatory givings be incorporated into a consequentialist analysis of regulatory takings compensation? Should the right of property owners to benefit from capital appreciation caused by regulations without returning the windfalls to the government be interpreted as implying a denial of right to receive compensation where the regulations produce adverse effects? Third, given the likelihood that overlapping regulations will produce both benefit and harm for property owners over time, should land use regulations remain uncompensated in light of the probability of a future or past beneficial land use regulation? Fourth, in light of the ubiquity of ad valorem property taxes, should regulations that adversely affect property be seen as implicitly accompanied by compensation given that a reduction in housing values will lead to lower tax payments just as an increase in property prices caused by a public action will increase tax liabilities for property owners?

The findings of the Essay may be summarized as follows. The case for takings compensation is far from perfect, and serious arguments can and have been made against compensation. However, once compensation is a required accompaniment to eminent domain takings, it is extremely difficult to draft a cogent argument for ruling out compensating for regulatory takings in general. Adding consideration of givings and taxes to the picture further demonstrates the problematic nature of much of the law of takings, but does not make a compelling case against compensating for regulatory takings.

Ben Barros

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Evictions from State-Owned Land in Hawaii

The Honolulu Advertiser brings news of evictions of residents from state land on the north shore of Oahu.  We hear another lesson in what we might call legal realism:

Each family is being evicted for various reasons, said Ervin Kahala, who was told in 2000 that he would get a lease, but earlier this year learned that a new interpretation of the law forbids the state from issuing new leases even though he grew up in the valley and has ancestral ties to it.

"I'm not prejudiced but (the state) is using white man's law as an excuse," Kahala said.

Alfred Brophy

Roark on Fixtures Under Article 9

Marc Lane Roark (University of Missouri School of Law) has posted 'Groping Along...Between Things Real and Things Personal' A New Hermeneutic of Fixtures under UCC 9-334 on SSRN.  Here's the abstract:

What are the defining characteristics of fixtures under the Uniform Commercial Code? Since the Code's inception, courts have interpreted the fixtures definition as incorporating state law on fixtures. Even after drafters revised the definition away from an explicit incorporation of state realty law, courts continued to interpret the provision as if no change were made. This Article argues that the doctrinal development of fixtures, the drafting attempts to define fixtures provisions, and the current version of 9-334 articulate a definition of fixtures tied to attachment. In reaching that conclusion, the Article proposes a "new hermeneutical reading of 9-334 focusing on (1) the doctrinal movement of fixtures to third-party interests; (2) the inference of meaning found in changes to the fixtures provisions; (3) the lack of discernable intent by the drafters either from the comments or other materials; and (4) a reading of 9-334 that concludes meaning from the provisions, rather than one that redacts meaning depending on the definitional base.

Bonus points for Marc for using "hermeneutic" and "Article  9" in the same sentence. 

Ben Barros

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Nave on Housing Remedies in School Segregation Litigation

Erin C. Nave (Washington University, St. Louis) has posted Getting to the Roots of School Segregation: The Challenges of Housing Remedies in Northern School Desegregation Litigation on SSRN.  Here's the abstract:

The critical relationship between racially identifiable neighborhoods in northern cities and school segregation has been recognized by scholars, lawyers and courts for decades. However, despite this close interrelationship, civil rights attorneys have been frustrated in attempts to gain the courts' approval of combined school and housing remedies. This essay seeks to illustrate the challenges of winning housing remedies in northern school desegregation cases: (1) proving causation in combined school and housing claims is difficult and requires more resources than most plaintiffs are willing or able to expend; and (2) the Justice Department remains either unable or unwilling to tackle both issues at once. Despite these obstacles, evidence of residential segregation has still historically played a significant strategic role. This essay highlights the Indianapolis Public Schools litigation, U.S. v. Board of School Commissioners of the City of Indianapolis, as an example of how litigators were able to gain an interdistrict school desegregation plan which included a significant, though limited, housing remedy. As the isolation and re-segregation of urban school districts in northern cities continues, it is essential that the Justice Department and civil rights organizations re-examine the critical relationship between housing and schools. This article is also available at the Civil Rights Litigation Clearinghouse.

Ben Barros

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Chen on The New Chinese Property Code

Lei Chen (Stellenbosch University) has posted The New Chinese Property Code: A Giant Step Forward? on SSRN.  Here's the abstract:

This article examines the significance of the new Chinese Property Code from a comparative perspective. The new code aims to tackle intractable disputes that its outdated property law regime faces by elevating private property rights and providing a clear demarcation of property rights. This article first presents the social and legislative background of recent developments in Chinese property law, explaining why the enactment of the Property Code is urgently needed. Subsequently, the article analyses the selected primary principles and main elements of property law such as ownership, rights of use and enjoyment, and rights of security. The comparative approach - utilising systems of property rights in other jurisdictions - is used to evaluate property regimes. The conclusion is that, ultimately, the life of the law lies in its application. Although it is widely acknowledged that the new Chinese Property Code is of milestone significance in Chinese legal development, the success of nascent legislation will rely on the state's approach to enforcement. A number of special statutes pertaining to specific institutions are therefore needed to rectify the problems the code does not deal with and to substantiate Chinese property law.

Ben Barros

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Zoning Law v. The Bubble

From the AP:

Ten hours a day, every day, Elizabeth Feudale-Bowes confines herself to a galvanized-steel-and-porcelain shed outside her house. Inside are a toilet, a metal cabinet, a box spring with the metal coils exposed, and a pile of organic cotton blankets. Aluminum foil covers the window. The place is as austere as a prison cell - but it's also her sanctuary from an outside world that she says makes her violently ill.

She and her husband call the structure "the bubble."

This bubble, though, may be about to burst: A judge has ordered it taken down by the end of the month.

Some of the couple's neighbors in suburban South Whitehall Township complained that the 160-square-foot building is unstable and so unsightly it could drag down their property values. The couple also hooked up electrical, water and sewer service without securing permits.

"For the wife's medical problems, there is sympathy. For the owner's defiance of the township's lawful directives, there is no excuse," Judge Carol McGinley ruled earlier this month.

Ben Barros

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Money and Politics in Zoning -- Who Would Have Thought?

The Chicago Tribune has a remarkable series of stories based on an investigation into Chicago zoning practices.  From their summary:

In an unprecedented investigation, the Tribune analyzed a decade of zoning changes to detail how real estate interests have funneled millions of dollars to the aldermen who dictate what can be built. The series has examined how aldermen ignore city planners and frustrated residents as they frequently permit new and bigger buildings that leave neighbors in their shadows.

Ben Barros

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At the Intersection of Property and Remedies

From today's news, we hear of a Florida man who was jailed for contempt of court after he failed to abide a judge's order to take care of his lawn, as required by covenants on his property.  I might have thought everyone had a bit more productive use of their time.  But, hey, it gives us something to talk about in two of my favorite classes!

Alfred Brophy

Krier on the Evolution of Property Rights

James E. Krier (Michigan) has posted The Evolution of Property Rights: A Synthetic Overview on SSRN.  Here's the abstract:

In this paper I review, extend, and critique two contrasting approaches to the evolution of property rights. The legal literature on the subject is dominated by a conventional approach, which holds a virtual monopoly despite its many shortcomings, and the literature neglects an alternative approach, despite its many virtues (including, but not limited to, the virtue of responding to many of the conventional approach's deficiencies). The paper provides an overview of both approaches, including a brief intellectual history of each - and should thus inform readers without specialized knowledge of the subject but nevertheless interested in it - and aims among other things to make the alternative approach salient, in particular because an integrated treatment that draws on a combination of the two approaches does more explanatory work than can either approach on its own.

I saw Jim present an early version of this paper -- it is very interesting!

Ben Barros

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Piccard on Residential Evictions in Florida

Ann Piccard (Stetson) has posted Residential Evictions in Florida: When the Rent is Due, Where is the Process? on SSRN.  Here's the abstract:

Florida's residential eviction statute requires that a tenant who is sued for eviction must deposit into the registry of the court any alleged past-due rent. This never happens because tenants are either ignorant of the requirement, are unable to deposit the money, or choose to simply move on. If the past-due rent is not deposited with the court, the tenant is not permitted to raise any defenses in court, meaning the landlord always wins. It is wasteful to require landlords and courts to address issues the results of which are virtually always in favor of one party. Further, the law ignores basic notions about the human need for housing. The law serves no purpose, and should be changed.

Ben Barros

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Singer on Property in a Free and Democratic Society

Joseph William Singer (Harvard) has posted Democratic Estates: Property Law in a Free and Democratic Society on SSRN.  Here's the abstract:

How should we think about property and property law both descriptively and normatively? This article suggests we consider this question by focusing on justifications for the estates system which limits the bundles of property rights in land that are recognized by the legal system. Thomas Merrill and Henry Smith have usefully argued that what they call the "numerus clausus" principle is justified because it lowers the information costs of property. While there is a lot to this argument, I suggest that if we look, not only at the traditional rules governing future interests but at all the statutes that regulate property and market relationships, as well as the social customs embodied in our property institutions, we can see that our legal system regulates the bundles of property rights that can be created and enforced, not only to improve efficiency, but to shape the contours of social relationships so that they comply with the norms defining a free and democratic society.

Some of those regulations attempt to prevent the negative externalities that flow from unregulated property bundles, such as the current financial crisis which appears to have been caused by the marketing of subprime, variable rate mortgages that were securitized into incomprehensible packages whose real market value hidden from purchasers who took unreasonable risks in buying them. But other laws regulating property bundles are based on norms that define our way of life, such as those that outlaw property relations characterized by feudalism, slavery, indentured servitude, or racial and religious restrictions on land ownership. Still others protect consumers by setting minimum standards for property and other market transactions.

This approach to property differs from the traditional alienability approach, the legal realist bundle of rights approach, the efficiency approach, the libertarian and liberal egalitarian approaches, and the personality, human flourishing, and virtue ethics approaches by framing descriptive and normative inquiries about property and property law by reference to the quasi-constitutional, structural role that property law plays in defining the appropriate contours of human relationships in a free and democratic society.

Ben Barros

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Morriss on Politics and Property in Natural Resources

Andrew P. Morriss (Illinois) has posted Politics & Property in Natural Resources on SSRN.  Here's the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Ben Barros

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Who Says You Can't Physically Partition a Single Family House?

CNN has a fascinating story about a Cambodian couple who cut their house in two when they divorced.  (More accurately, the husband cut the house in half and moved his part to land owned by his parents).  You MUST click through to see the picture.

Ben Barros

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Even on Appropriability and Property

Yonatan Even (Columbia) has posted Appropriability and Property on SSRN.  Here's the abstract:

This paper challenges the malleability of the idea of property as a relative, indeterminate "bundle of rights", which appears to dominate property doctrine at least since Ronald Coase's "The Problem of Social Cost". Focusing on the core goals of property regimes, the paper proposes an alternative view of property rights - one that is centered on the ability of owners to appropriate the benefits of their assets in the face of a threat from numerous potential adversaries, rather than their ability to contract such assets away within a bilateral context. The paper demonstrates how the shift to a multilateral, appropriability-based analysis allows for a fuller account of what must be the "core" or "baseline" of property rights. Using this account, the paper offers an evaluation of the relationship between such "core" rights and other types of rights traditionally associated with property doctrine, such as rights that have historically been granted to owners under the guise of property rights, contractual rights vis-a-vis third parties and constitutional rights against the public at large.

Ben Barros

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RLUIPA Podcasts

Over at Law of the Land, Patty Salkin has links to the podcasts of what looks to have been an outstanding symposium on RLUPIA.

Ben Barros

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Takings for Private Use in India

NPR has an interesting story about controversy surrounding the building of an auto factory in India.

Thanks to Eduardo Penalver for the tip.

Ben Barros

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A Haunted House and a Rescission?

Because I know how much Ben loves Stambovsky, I thought I'd post a link to Fox News' discussion of whether some buyers can rescind their purchase of a "haunted house," Clifton Hall.   By the way, I don't think this has anything to do with the implied warranty of habitability.  I think the defect is patent.

Alfred Brophy 

Teaching With Popper's Bordering on Madness

Carolina Academic Press is issuing a second edition of Andrew F. Popper's novel Bordering on Madness:  An American Land Use Tale:

Bordering on Madness is a novel about a battle between a university and a community over proposed construction of a new campus facility. As the land use fight ripens, the homeowners and university become combatants. The opposition becomes the enemy, depersonalized and reprehensible.

From a teaching perspective, the novel allows for discussion of conventional and unconventional land use strategies as well as the development of a number of issues: When does one person have the right to control the lawful use of property owned by another? When does aggressive advocacy become unethical, unacceptable misconduct? What is the role of government when it comes to disputes between those opposed to development and those seeking approval of a proposed project? What are the best ways to handle the anger and frustration of individuals threatened by what they perceive as destructive change?

At the same time, CAP is publishing a companion casebook, co-authored by Popper and land-use experts Patty Salkin David Avitable:

Professor Andrew F. Popper’s new innovative casebook A Companion to Bordering on Madness: An American Land Use Tale delves into the legal, political, and strategic issues raised in his recent novel, Bordering on Madness, a tale about a university and a community who go to war over a building proposal.

Using the plot of the novel as a starting point, the Companion provides commentary as well as numerous edited cases and articles to discuss the conflict between those who seek to develop land and those who oppose that development.

“The notion of using fiction as a building block to teach a field is fairly common – but the idea of a casebook that addresses in depth the areas raised in a full-length novel is unique,” said Popper. “The novel touches on cutting-edge legal issues that could not be explored adequately. The Companion provides a wonderful opportunity to set out those issues and strategic challenges and explore the pertinent judicial decisions and scholarship in the field, something that cannot – and should not – be done with fiction.”

The story in the novel is a familiar one in higher education and many other fields. Battles between local residents and universities or other institutions are legendary and the novel and Companion build on one of those legends: the complex dispute some years ago between American University Washington College of Law and some of the surrounding residential communities over the construction of a new law school building.

“At any one time, throughout the United States, there are thousands of battles of this type,” Popper said. “Universities, hospitals, churches, commercial developers and even homeowners who want to put an addition onto their homes find quickly that owning land does not mean necessarily having the right to use land – even when those uses are perfectly consistent with the laws and regulations applicable to the subject property.”

Looks like a very innovative way of presenting these issues!

Ben Barros

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