PropertyProf Blog

Shrinky Dinks

There was a really short but gripping article in the New York Times about how to manage declining cities.  From the intro:

Dozens of proposals have been floated over the years to slow [Flint, Michigan’s] endless decline. Now another idea is gaining support: speed it up. Instead of waiting for houses to become abandoned and then pulling them down, local leaders are talking about demolishing entire blocks and even whole neighborhoods. The population would be condensed into a few viable areas. So would stores and services. A city built to manufacture cars would be returned in large measure to the forest primeval.

(For other commentary see here and here.) Although the topic of population decline merits more attention,  it seems like there are lots of problems with Flint's proposal.  How exactly will local governments figure out what areas are “viable?” Does this do anything to bring back jobs to the Rust Belt?  How does block-wide demolition address the larger regional morass?  Does this destroy cultural heritage?  Is destruction really better than focused rehabilitation?   Won't this kind of thing just happen naturally, without government involvement?  Would demolition money be better spent on cops and schools? 

Steve Clowney

On the Subject of Post-Kelo Eminent Domain Reform . . .

The new issue of the Review of Law and Economics has an article titled Pass a Law, Any Law, Fast! State Legislative Responses to the Kelo Backlash, by Edward J. Lopez (San Jose State), R. Todd Jewell (U. North Texas) and Noel D. Campbell (U. Central Arkansas).  Here's the abstract:

In Kelo v. City of New London, the U.S. Supreme Court left it to the states to protect property against takings for economic development. Since Kelo, thirty-seven states have enacted legislation to update their eminent domain laws. This paper is the first to theoretically and empirically analyze the factors that influence whether, in what manner, and how quickly states change their laws through new legislation. Fourteen of the thirty-seven new laws offer only weak protections against development takings. The legislative response to Kelo was responsive to measures of the backlash but only in the binary decision whether to pass any new law. The decision to enact a meaningful restriction was more a function of relevant political economy measures. States with more economic freedom, greater value of new housing construction, and less racial and income inequality are more likely to have enacted stronger restrictions, and sooner. Of the thirteen states that have not updated, Arkansas, Oklahoma and Mississippi are highly likely to do so in the future. Hawaii, Massachusetts and New York are unlikely to update at all.

Ben Barros

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WSJ on Blight and Eminent Domain

Today's W$J has an article on blight and post-Kelo eminent domain, featuring a scintillating and profound quote from yours truly.  Okay, maybe neither scintillating or profound.  But I'm quoted, which should make my Dean happy, and that's all that matters, right?

Ben Barros

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Phoenix Housing Prices Fall By 50% in Less Than Three Years

From the NY Times:

Phoenix has achieved the unwelcome distinction of becoming the first major American city where home prices have fallen in half since the market peaked in the middle of the decade, according to data released Tuesday.

Ouch.

Ben Barros

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More Entry Level Hires

Legal Theory Blog has updated its 2009 Entry Level Hiring Report.  Here are a few more hires with interests in Property stuff:

Richard B Graves (Northern Kentucky)
Irina Manta (Case Western Reserve)
Talha M. Syed (Berkeley)
Anastasia Telesetsky (Idaho)

Steve Clowney

Mossoff on Patent Thickets at the VC

Adam Mossoff is blogging this week at the VC on his article on The Rise and Fall of the Sewing Machine Patent Thicket.  Very interesting stuff.

Ben Barros

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The Way of the Dodo

America's Most Endangered Places.

Pic: Lanai City - Lanai, Hawaii. In 1922, James Dole, the president of Dole Food Company bought the entire island of Lanai and turned it into the world's largest pineapple plantation.  Laborers from the Philippines, Korea, Japan, China and Portugal worked the pineapple fields and lived in the "plantation houses" that are now at risk.  Commercial development and increased tourism threatens to overwhelm the old plantation town.

Steve Clowney

A Coney Island of The Mind

 The New York Daily News recounts the historic zoning battle that's shaping up over Coney Island:

Coney Island is facing the most important neighborhood rezoning in the history of New York City. What happens here affects the economic future of South Brooklyn’s coast and the entire borough. It will severely impact New York’s tourism figures and global reputation as a city that can care for its historic yet decaying neighborhoods, or one that cannot.

That’s why the mayor’s office, committed to a five-borough plan, has moved full-force ahead with revitalizing the area. It’s also why special-interest groups, city departments, land developers, neighborhood planners, architects and old-time Brooklynites have such strong opinions. All matter, but some serve only to encumber development of a once-glorious city icon that now looks like a war zone in winter and a hodgepodge of amusements in summer.

Steve Clowney

Renting the Land of Milk & Honey?

David Plotz read every word of the Old Testament and blogged about the experience on Slate.  One of Plotz's take home points is that in "the Bible there's more about real estate than there is about the Lord." As he said in an interview with the New Yorker:

The overarching theme of the Bible, particularly of Genesis, is real estate. God is Trump-like, constantly making land deals (and then remaking them, on different terms). When Sarah dies, for example, there are two verses about her death, and a whole chapter about Abraham negotiating to buy a burial site for her in Hebron. It’s not just land that the Bible is obsessed with, but also portable property: gold, silver, livestock. There’s a great book to be written—not by me—about Biblical economics, and what all these transactions indicate about the nature of Judean society. I’m not sure what it tells us about the current housing crisis, except perhaps that the Israelites were just as maniacal about land ownership as we are. None of them wanted to rent in the Promised Land. They all wanted to own (and there wasn’t even a mortgage interest deduction).

Hat Tip: Andrew Sullivan

Steve Clowney

Killing Trees

Students have many reasons to loathe law school textbooks; the back-breaking size, the low-quality paper, the unanswered questions in the notes between cases (Do you see why?).  The biggest gripe among my students, however, is the price of their materials (textbook prices rose by 186 percent between 1986 and 2006).  Thinking that I might be able to get a better deal for my books, I took a look at the price of some of the leading property texts:

Dukeminier, Krier, Alexander, Schill  $149
Merrill and Smith $146
Singer $146
Rabin, Kwall, & Kwall  $144
Nelson, Stoebuck & Whitman $143
Casner, Leach, French  $143
Freyermuth, Organ, Noble-Allgire and Winokur: $142
Sprankling & Coletta: $132
Bruce and Ely  $129

This seems problematic.  Is the difficulty, as Ian Ayres said, "the lack of price competition?" Is it that we just don't pay attention to prices?  Should I run for state senate on a platform of breaking the textbook monopoly?

Steve Clowney

Krier on Evolutionary Theory and the Origin of Property Rights

James E. Krier (Michigan) has posted Evolutionary Theory and the Origin of Property Rights on SSRN.  Here's the abstract:

Legal scholars have never settled on a satisfactory account of the evolution of property rights. The touchstone for virtually all discussion, Harold Demsetz's Toward a Theory of Property Rights, has a number of well-known (and not so well-known) shortcomings, perhaps because it was never intended to be taken as an evolutionary explanation in the first place. There is, in principle at least, a pretty straightforward fix for the sort of evolutionary approach pursued by followers of Demsetz, but even then that approach - call it the conventional approach - fails to account for very early property rights, right at the genesis. The early developments are better explained by a very different approach based on evolutionary game theory. The game theoretic approach can account for a basic system of property rights rooted in possession; it cannot, however, account for complex property systems. To explain the latter requires the conventional approach. Hence, the two approaches combined suggest a satisfactory account of the origins and development of property rights systems.

Ben Barros

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A Gift to be Simple, A Gift to be Free

For anyone with an interest in Utopian communities, the New York Times Magazine ran a long article on the Transition Initiative:

The Transition movement ... shares certain principles with environmentalism, but its vision is deeper — and more radical — than mere greenness or sustainability. “Sustainability,” Hopkins recently told me, “is about reducing the impacts of what comes out of the tailpipe of industrial society.” But that assumes our industrial society will keep running. By contrast, Hopkins said, Transition is about “building resiliency” — putting new systems in place to make a given community as self-sufficient as possible, bracing it to withstand the shocks that will come as oil grows astronomically expensive, climate change intensifies and, maybe sooner than we think, industrial society frays or collapses entirely. For a generation, the environmental movement has told us to change our lifestyles to avoid catastrophic consequences. Transition tells us those consequences are now irreversibly switching on; we need to revolutionize our lives if we want to survive.

Although it's somewhat difficult to mine specifics from the group's website, the Initiative seems to have mixed views on the benefits of communal property.   As one of the group's websites states "land and natural resources will no longer be regarded as private property that can be owned by individuals, corporations and companies.  However all improvement on the land such as houses, factories, gardens, farm infrastructure, being wealth will all be subject to private ownership."

Steve Clowney

Blogging the Bluegrass

Lexington, Kentucky is a wonderful place to live and work.  Founded in 1779, Lexington is the self-proclaimed "Horse Capital of the World," Kentucky's second largest city, and home to (arguably) the oldest law school in the country. 

Kentucky is also a fun place to teach property.  Under the guidance of Jesse Dukeminier, Kentucky adopted a wait-and-see approach to the Rule Against Perpetuities (and allows judicial reformation of violations!). Another great property fact about the Bluegrass State: Kentucky remains one of the few places where you can get full title to government land by adverse possession.  So, if you ever pass through Kentucky, look me up - I'll be the guy camping out behind City Hall, trying to start a real estate empire.

Pic: Manchester Farm - Lexington, Kentucky

Steve Clowney

Treehouses: A Growing Menace

Advocates of strong zoning controls should consider themselves on notice; The treehouse construction industry is slowly undermining the land use system.

Recently, there has been a wonderful string of news articles about confrontations between neighbors over the zoning of (really large!) treehouses (see here, here, and here). These cases illustrate all of the best things about property (how nasty disputes between neighbors turn into bitter rivalries, the difficulty of balancing rules and standards, the role of community norms, the proper role of government). But my favorite thing about these online stories is the comments left by members of the public.  They show just how much people care about local property issues. 

The picture at left is from the endearing website, www.saveourtreehouse.com, which chronicles the struggle of Scot and Mary Welch against the zoning powers of Clinton, Mississippi.  The parties spent over $50,000 on attorneys' fees, the case went all the way to the Mississippi Supreme Court, and, awesomely, the courtroom was packed during the oral argument.

Steve Clowney  

Bedbugs and the Implied Warranty of Habitability

I was recently asked whether a bedbug infestation might support an implied warranty of habitability claim.  I thought that it probably would.  A quick Google search quickly turned up a story about a New York court decision holding that a bedbug infestation would, indeed, support a claim under the IWH.  The same Google search also unfortunately turned up this post from the Rental Protection Agency website.  A person had asked the bedbug/IWH question, and had received some answers that struck me as misleading at best.  That, I suppose, is what happens when you turn to random internet forums for legal advice.

Ben Barros

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Prefab Housing for the Homeless

Vancouver recently announced plans to construct 190 prefabricated, modular housing units on city-owned land adjacent to the Drake Hotel in the Downtown area.  It seems the units will be operated by the City of Vancouver, and used as semi-permanent housing for the city's indigent population.  As one local housing advocate stated, "When a person gets into permanent housing it's then when they can deal with their abuses and traumas in their life and become part of a community."  This article raises a number of questions. First, has Canada had a different experience with government owned housing than the U.S.?  The trend here runs strongly against project-style housing.  Second, where are the NIMBY complaints in these stories?  Finally, does small-scale, modular housing provide a long-term solution to the struggle to find affordable housing?  Could these brightly-colored, cheap ($1500 a unit) little homes become the socially acceptable SROs of the future?

For more pictures modular housing units, check out Witold Rybczynski's slideshow at Slate.

pic:  Houses designed by students at Emily Carr University of Art & Design

Steve Clowney

Lehavi on Taxing and Taking

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Strand Not Taken: The Taxing/Taking Taxonomy in American Property Law on SSRN.  Here's the abstract:

Takings jurisprudence is struggling with a constant paradox. It is conventionally portrayed as chaotic and “muddy,” and yet attempts by the judiciary to create some sense of order in it by delineating this field into distinctive categories that apply to each a different set of rules are often criticized as analytically incoherent or normatively indefensible.

This Article offers an innovative approach to the taxonomic enterprise in takings law, by examining what is probably its starkest and most entrenched division: that between takings and taxings. American courts have been nearly unanimous in refusing to scrutinize the power to tax, viewing this form of government action as falling outside the scope of the Takings Clause. Critics have argued that the presence of government coercion, loss of private value, and potential imbalances in burden sharing mandate that the two instances be conceptually synchronized and subject to similar doctrinal tests.

The main thesis of the Article is that this dichotomy, and other types of legal line-drawing in property, should be assessed not on the basis of a “pointblank” analysis of allegedly-comparable specific instances, but rather on a broader view of the foundational principles of American property law and of the way in which takings taxonomies mesh with the broader social and jurisprudential understanding of what “property” is.

Identifying American property law as conforming to two fundamental principles -- formalism of rights and strong market propensity -- but at the same time as devoid of a constitutional undertaking to protect privately-held value against potential losses as a self-standing “strand” in the property bundle, the Article explains why prevailing forms of taxation do seem to be disparate from other forms of governmental interventions with private property. Focusing attention on property taxation, the Article shows why taxation is considered a “lesser evil” type of government coercion, how the taxing/taking dichotomy better addresses the public-private interplay in property law, and why taxation is often viewed as actually empowering property rights and the control of assets.

This type of systematic inquiry is very timely. American property law is nowadays located at a crucial crossroad, with its longtime foundational premises and convictions being vigorously reexamined in the face of the domestic and global economic crisis. Although it remains to be seen whether government measures taken in the months and years to come will create a major upheaval in the fundamentals of property law, it should be clear that any such major shifts will have inevitable profound influences on what may be wrongly viewed as “isolated” legal doctrines, including the taking/taxing taxonomy.

Ben Barros

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From bollards to bulb-outs

GOOD Magazine has a interactive graphic explaining what makes a street pedestrian-friendly.

Steve Clowney

Should We Care About Detroit?

Detroit is sick:  Unemployment has swept through the town like a grass fire.  The automobile industry continues to spiral toward collapse.  Buildings lay abandoned. Housing prices have crumpled - the median price of a home sold in Detroit in December was $7,500 (not $75,000, but $7,500). And, most worrisome, residents are leaving the city at an alarming rate.  Demographers report that Detroit has lost 50% of its population in the last half-century (the 1950 census counted 1,849,568 Detroiters. In 2000 Detroit’s population was 951,270 and still decreasing).  Should we care?  

To clarify, I’m not asking whether we should ignore the people of the Motor City.  I think most folks agree that we should work to eliminate as much human misery as possible.  Rather, I want to question whether we should be concerned about Detroit as a place?   Should the federal or state government pour emergency funds into Southeastern Michigan in an attempt to save the particular history and culture of the once proud city?  If we allow Detroit to crumble will we have lost something important?

A recent article from the New York Times about the fall and eventual re-birth of Pittsburgh suggests that there might be some long-term advantages to letting Detroit take its lumps.  The Times chronicles (rather briefly) how Pittsburgh reinvented itself after the collapse of its industrial base.  The declining population of Western Pennsylvania kept housing prices low and forced the local government to find creative ways of attracting new, more sustainable (and environmentally friendly) industries. 

Pittsburgh is, by many accounts, a more pleasant place than it was during its industrial heyday.  Does it matter that the culture of the steelworker and the resulting sense of place has been lost?

 Thoughts?

Steve Clowney        

Painting the Foreclosure Mess

Designboom says:

amy casey is a painter based in cleveland, ohio. casey has a fascination with the urban landscape and its evolution and transformation. in her paintings, casey depicts scenes of buildings, homes and city infrastructure being upended. she explains that her work is a reflection of the nervous state of affairs in the world today. while on the surface her works resemble the result of natural disasters, casey also believes in the resilience of life and community. the structures in her works display this resilience as they are repaired, reassembled and salvaged to cope with disaster.

http://www.amycaseypainting.com

Steve Clowney