PropertyProf Blog

Squatting in Foreclosed Homes

From today's NY Times:

Ms. Omega, 48, is one of the beneficiaries of the foreclosure crisis. Through a small advocacy group of local volunteers called Take Back the Land, she moved from a friend’s couch into a newly empty house that sold just a few years ago for more than $400,000.

Michael Stoops, executive director of the National Coalition for the Homeless, said about a dozen advocacy groups around the country were actively moving homeless people into vacant homes — some working in secret, others, like Take Back the Land, operating openly.

In addition to squatting, some advocacy groups have organized civil disobedience actions in which borrowers or renters refuse to leave homes after foreclosure.

The groups say that they have sometimes received support from neighbors and that beleaguered police departments have not aggressively gone after squatters.

Ben Barros

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Using Eminent Domain to Take the Preakness?

Ilya Somin at the VC has some details.  A taste:

Maryland state legislators are considering legislation that would enable them to use eminent domain to condemn the Preakness Stakes horse-racing track, as well as the trademark and other intellectual property rights associated with the famous race which is part of the Triple Crown [HT: VC reader John Thacker]:

Under the bill, the state could seize the tracks as well as the Woodlawn Vase and Preakness-related trademarks, copyrights and contracts, if doing so prevents "the loss of the historically, culturally, and economically important" horse racing legacy . . .

The last-minute legislation was prompted in part by reports that Pikesville developer Carl Verstandig was interested in razing Pimlico and turning the Northwest Baltimore property into a shopping center. He has since said he would prefer to keep the Preakness at Pimlico, as have other potential bidders.

Magna Entertainment Corp., the firm that currently owns the Preakness and the Pimlico race track, is facing bankruptcy. And Maryland officials, including the governor, claim that the threat of eminent domain is needed to keep the Preakness from being moved out of state, as the Baltimore Colts were in 1984.

Ben Barros

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A Plug for Urban Legal History

This semester I taught a seminar on the history of the physical development of Lexington, Kentucky, the town where my law school is nestled.  I stole the idea whole cloth from Bob Ellickson, who has offered a similar course at Yale for the last fifteen years.  In the class, titled Urban Legal History, we began by examining the founding of Lexington in 1779.   Then, we traced the city’s growth from a wilderness trading post to the world capital of bourbon and horses, paying particular attention to local politics and municipal regulations (zoning, building codes, etc).  After wading through the rough drafts of 17 seminar papers, I would say that every PropertyProf looking for a new course should think about crafting a syllabus from the history of their local municipality.  Personally, I’ve learned a ton about the greater Lexington area (balancing the demands of growth versus the desire to preserve the area’s rural heritage creates all kind of thorny land use problems). The students, for their part, have responded well to the opportunity to dig through our local libraries and government records for original source material.  I also think the course provides a nice counter balance to the heavy dose of federal law they receive in the rest of their time here.  And, from a teaching standpoint, it can’t be overlooked that the seminar papers have been (more or less) a joy to read - I've had projects covering everything from postcard to ferries.  For anyone that might be interested, I found a copy of Ellickson's inventive syllabus online.

pic:  The original subdivision of land in Lexington, KY    

Steve Clowney

Rose on Servitudes

Carol M. Rose (Arizona) has posted Servitudes on SSRN.  Here's the abstract:

Traditional servitudes running with the land bristled with complex legal limitations, but those limitations served three comprehensible overlapping goals: assuring that potential future landowners would learn about servitude obligations, that they could renegotiate obligations, and that the obligations themselves served useful purposes. This chapter argues that changes in recording and equity jurisprudence permitted simplification of servitude law. But it further argues that simplification has had dynamic effects: developers and other real estate innovators have responded by "pushing the envelope," extending servitudes into new areas, ultimately re-creating, in different guises, the problems addressed by older servitude law. It illustrates this dynamic with three different types of servitudes: the rise and demise of racially restrictive covenants; the use of servitudes in common interest communities; and the new uses of servitudes for conservation purposes.

Ben Barros

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Klass on Carbon Sequestration and Property Rights

Alexandra B. Klass (Minnesota) has posted Climate Change, Carbon Sequestration, and Property Rights on SSRN.  Here's the abstract:

This Article considers the role of property rights in efforts to sequester underground hundreds of millions of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to mitigate climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement this technology, future CCS operators must be able to access hundreds of millions of acres of "pore space" roughly a kilometer below the earth's surface in which to store CO2 for hundreds to thousands of years. Here, we explore questions relating to ownership of subsurface pore space, physical takings, regulatory takings, and just compensation that will necessarily accompany the implementation of CCS in the United States. In order to accommodate the full range of property rights and takings issues that will arise with CCS, we propose a regulatory framework based in part on the Natural Gas Act to address these issues in connection with subsurface CO2 storage.

Ben Barros

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Reiss on Regulation of Subprime and Predatory Lending

David J. Reiss (Brooklyn Law School) has posted Regulation of Subprime and Predatory Lending on SSRN.  Here's the abstract:

This is an entry on the Regulation of Subprime and Predatory Lending for THE INTERNATIONAL ENCYCLOPEDIA OF HOUSING AND HOME (Elsevier Ltd, 2010). This entry provides a brief introduction to the explosive development of the subprime mortgage market. It then enumerates the abusive practices that were found in that market until it was effectively shut down at the outset of the ongoing credit crisis. It then reviews the limited federal and state legislative and regulatory responses to various abusive practices. It concludes that abusive practices will likely resurface once underwriting standards loosen, as they inevitably will.

Ben Barros

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A Room With a View

From Forbes Traveler, pictures of the world's best skylines....

Steve Clowney

Rose on Ellickson's Property Scholarship

Carol M. Rose (Arizona) has posted Of Natural Threads and Legal Hoops: Bob Ellickson's Property Scholarship on SSRN.  Here's the abstract:

This brief retrospective identifies several of the constant ideas that have run through Robert Ellickson's property scholarship over a very long period. One theme that has emerged ever more strongly is the idea that property has a natural character: left to themselves, people organize their properties in a relatively limited number of predictable mixes and matches of individual and common ownership. Ellickson's earlier work on social norms and ancient law focused on neighbors and communities, while his latest work extends this idea of a natural order to the household. Implicit in much of his writing is a skepticism about governmental intervention, with its disruption of the norms upon which a natural set of property relationships emerge. But at bottom, the Ellicksonian natural order itself can only exist in the context of a certain kind of limited, non-interventionist ideal type of government.

Ben Barros

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Salkin on Climate Change and Local Government

Patricia Salkin (Albany) has posted New York Climate Change Report Card: Improvement Needed for More Effective Leadership and Overall Coordination with Local Government on SSRN.  Here's the abstract:

New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the fact remains that there has been little public sector benchmarking to determine whether the quantity of programs is yielding quantifiable results to ensure that investments are being made wisely. Further, there is a lack of overall state-level coordination among the dozens of programs and resulting initiatives leading to confusion, potential diffusion of state resources, less than perfect communication within and between the executive and legislative branches of government, and missed opportunities.

While meaningful State-level programs are vital to achieving emissions reductions goals, a state cannot be successful without collaboration and partnerships with its local governments. Fortunately, many New York cities, towns and villages have also been at work trying to develop and implement strategies to curb emissions. Municipalities are choosing to adopt clear statements and action items in their comprehensive land use plans; they are creating climate change or sustainability task forces and developing strategies; and they are enacting regulations to promote green building and alternative energy development. Unfortunately, while somewhat anecdotally it appears that roughly one hundred local governments have adopted serious climate change and energy efficiency initiatives, this number is dwarfed by the realization that New York is home to approximately 1,600 units of local government. New York must do more to recognize the importance of local action through a combination of incentives and technical assistance that includes access to reliable data and other related information.

This article is not intended to critique all of the state-level programs and initiatives in New York. Rather it seeks to demonstrate that while there is a substantial level of activity in New York with respect to climate change and energy efficiency issues, the true potential of these programs will not be fully realized because New York lacks a coordinated, comprehensive and fully integrated inter-jurisdictional approach to addressing these challenges. Although New York is selected as the focus of study, similar observations may be made in jurisdictions throughout the country, and the recommendations are equally portable. Part II focuses on local governments as the laboratories of innovation, highlighting a number of creative and ambitious programs adopted and tools and techniques employed to address climate change issues at the municipal level. This part contains a brief mention of federal and state preemption issues, as a reminder that all levels of government must be working together with the same goals in mind. Part III offers recommendations as to what the State can do to encourage more activity at the municipal level where change in behavior and regulatory reform has great potential to quickly reduce the carbon footprint in communities across the State.

Ben Barros

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Massey on Church Property

Calvin R. Massey (Hastings) has posted Church Schisms, Church Property, and Civil Authority on SSRN.  Here's the abstract:

When the Supreme Court decided Jones v. Wolf it required courts to use secular criteria to decide church property disputes, yet there remains considerable uncertainty about the permissible latitude of those secular principles. This stems from the Court's attempt to honor three principles that are in tension with one another: 1) autonomous church governance, which the Court sees as an aspect of the free exercise of religion, 2) the need to prevent civil courts from deciding issues of religious doctrine, an aspect of the ban on governmental establishments of religion, and 3) preservation of state autonomy to decide how best to accommodate these twin goals, an aspect of federalism. There are three principal problems with this tripartite objective. First, sometimes they conflict with each other. Second, and worse, this framework fails to take into account adequately the interest of individuals united in local congregations of religious believers freely to exercise their religious beliefs. Finally, embedded in this framework is a generally unrecognized potential violation of the establishment clause: the provision by states of special advantages to hierarchical churches that allow them unilaterally to impose trusts for their benefit upon property held by local congregations.

This article seeks to expose these problems and present an approach that better protects the interest in religious freedom of local congregants while still preserving autonomy of church governance and limiting civil courts to adjudication of secular issues. When hierarchical churches divide into factions the principles of religious freedom embedded in the religion clauses compel civil courts to recognize the religious beliefs of a majority of the local congregation in deciding which faction of the divided church is entitled to the use of the local congregational property, absent some clear and wholly secular indication that the local congregation has given control of its property to the general church. The cost of this approach is a slight reduction in the discretion of states to specify decision rules for church property disputes, and a somewhat more controversial reduction in the degree of deference that civil courts should pay to internal church governance rules when churches divide into factions as a result of religious schism.

When the Supreme Court decided Watson v. Jones in the late nineteenth century and adopted deference to internal church governance as a standard for resolution of church property disputes, the religion clauses did not apply to the states. While the Court couched its reliance upon internal governance as an implication flowing from the ideals of religious freedom, it did not have to examine that premise critically. When in Jones v. Wolf the Court perpetuated this principle as an option for resolution of church property disputes it may have thought that deference to internal governance rules of hierarchical churches promotes religious freedom. Sometimes it does, but not always. Civil judicial interference with a hierarchical church's control of its clergy is the paradigmatic case of impermissible interference with the free exercise of religion. By contrast, permitting a hierarchical church unilaterally to impose trusts in its favor upon property held for the benefit of local congregations either creates an establishment clause violation (if secular charitable entities are denied this state-created benefit or if there is no plausible secular purpose for this benefit) or cuts deeply into the practical reality of how individual believers gathered in local communities manifest their religious conduct. This problem is exacerbated when a hierarchical church divides amid doctrinal disagreement. At that point, courts should apply a rule of local option, permitting each congregation to decide for itself which branch of the divided church will have its fealty and its property. Only by applying such a rule can a proper balance be struck between the splintered autonomy interest of a hierarchical church and the interest in religious associational freedom of local congregations and their individual members. The reflexive reliance of courts upon internal governance rules to decide property issues amid schism has obscured the interests in religious freedom that are at stake.

Adoption of the local congregational option principle leaves hierarchical churches with many avenues to secure congregational property for the benefit of the general church. First, they can avoid rupture by finding sufficient common ground in their religious doctrine to accommodate their body of believers. Second, they can insist that local congregations explicitly place their property in trust for the benefit of the general church as the price of continued affiliation with the general church. What they cannot do is create such trusts by the ipse dixit of the hierarchical church.

Ben Barros

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Hirokawa From Texas Weslyan to Albany

This is slightly old news, but PropertyProf Keith Hirokawa is moving from Texas Weslyan to Albany.

Ben Barros

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Global Warming as Property Problem

Matt Yglesias recently posted a report that discusses how global warming may force the redrawing of international borders:

Melting glaciers in the Alps may prompt Italy and Switzerland to redraw their borders near the Matterhorn, according to parliamentary draft legislation being readied in Rome […] “This draft law is born out the necessity to revise and verify the frontiers given the changes in climate and atmosphere,” Narducci said. “The 1941 convention between Italy and Switzerland established as criteria [for border revisions] the ridge [crest] of the glaciers. Following the withdrawal of the glaciers in the Alps, a new criterion has been proposed so that the new border coincides with the rock.” […] Narducci said the same negotiation will be proposed to France and Austria.

 Just more proof that property descriptions have real world implications...

Steve Clowney

Teaching the Rule Against Perpetuities

The latest issue of The Law Teacher has a short essay by Diane J. Klein (La Verne) titled Why Teach The Rule Against Perpetuities:  Four Good Reasons.  Here are the reasons:

(1) Studying the Rule Against Perpetuities Makes You Smarter

(2) Studying the Rule Against Perpetuities is one of the Most Difficult Things You Will Do In Law School

(3) RAP Problems Have Right and Wrong Answers

(4) The Study of RAP is an Initiation Into Law and Law School

I like the essay, but I think that only point (1) is actually a reason to study the RAP (and a questionable one at that); the rest are reasons to put up with the burden.  I taught the RAP in Property for one major reason:  it is a subject that no lawyer would want to learn on her own in practice.  Teaching the RAP, though, has real costs, in terms of class time that could be better spent on other matters.  Once Pennsylvania (where the vast majority of my students practice) abolished the RAP, teaching the RAP lost out on the cost/benefit analysis.

Ben Barros

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AALS Call For Papers

From Carol Brown, Chair of the AALS Property Section:

The Sections on Property Law and Real Estate Transactions are co-sponsoring an extended program at the 2010 AALS Annual Meeting in New Orleans, Louisiana.  The program theme is law as transformative agent, and the program goal is to explore the transformative potential of property law theory and property praxis in the transactional setting.  The national mortgage foreclosure, credit, and housing crises have prompted re-examination of traditional categories of thinking in those areas.  The Sections recognize, however, that scholarly innovation is wide-ranging, and the Sections encourage authors to take a broad view of the law as transformative agent.  The Sections seek two or three papers pertaining to this subject.  Papers will be presented at the program of the Sections at the 2010 AALS Annual Meeting and will be published in the Indiana Law Review.
 

Abstracts of one page or less should be submitted by e-mail to Lloyd T. Wilson, Jr. (Chair, Section on Real Estate Transactions) at [email protected] and to Carol N. Brown (Chair, Section on Property Law) at [email protected] by August 1, 2009.  Selection will be made by the Section Chairs in consultation with Section officers.  Those who submit abstracts will be notified of the Chairs’ selection by September 1, 2009.  To assure timely publication, selected authors should plan to submit their papers to the Indiana Law Review by December 15, 2009.  Questions should be directed to Professors Wilson or Brown at their e-mail addresses.

Ben Barros

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A Thousand Words?

PowerPoint has caused a good deal of angst in the LawProf blogosphere.  Although I appreciate the arguments that it impedes learning, I'm firmly planted in the pro-PowerPoint vineyard.  I like being able to present complicated hypotheticals on the screen.  Moreover, writing the slides before class forces me to be concise and order my lectures with some precision.  But most of all, I love integrating pictures into the classroom narrative.  I think the class discussion really jumps to life when students can see exactly what's at stake.  With that in mind, I thought I'd try to round-up some of the best pictures I use in class.  The Dukeminier casebook has a link to a really neat series of slides on the Van Valkenburgh v. Lutz case.  Here's a picture of a duck decoy if you teach Keeble.  And, if you teach Armory v. Delamirie, there are a ton of wonderful pics of the real Paul de Lamerie and his work. If you have other pics that you wouldn't mind sharing (maybe you went on a Property Case Safari), send me an email and I'll post them on the website and praise your keen photographic eye.

pic: The Van Valkenburgh Property

Steve Clowney

 

The Coming Rental Revolution

In the last few weeks, The New York Times has run a series of unrelated articles exploring how the foreclosure crisis is affecting the rental housing market  (see here, here, and here).  The general thrust of these pieces is that renters have benefited from the foreclosure mess:

Rents are down throughout New York. According to the February Manhattan Rental Market Report produced by the Real Estate Group, a New York brokerage firm, rents in the borough have fallen “across the board." The biggest drop was in studio apartments in doorman buildings, which have fallen 8.33 percent from the same time last year.

As more and more families get pushed out of the market for single family homes (because of the tighter credit market and regulations mandating larger downpayments), I wonder if we're about to experience a new heyday for landlord tenant law.  If the demand for rental property increases will we see new laws making it easier to sublet?  Will renters receive more protection when their buildings fall into foreclosure?  Do we really need more regulations in this area of law?

Steve Clowney

Pritchett from Penn to Rutgers-Camden as Chancellor

UPenn's Wendell Pritchett is moving to Rutgers-Camden as Chancellor.  I'm not sure whether Wendell considers himself a PropertyProf, but I think it is fair to lay claim to him as one of our own because of his scholarship on housing and urban issues.

Ben Barros

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Best. Postcard. Ever.

Steve Clowney

More Waterblogging

Jack Shafer of Slate has posted a neat piece that attempts to dispel the myth that water shortages can lead to armed combat:

Water scarcity in the [Middle East] results in "conflict and tension," Barnaby adds, but the Israeli and the Palestinian officials have successfully used a committee (controlled by the Israelis) to peacefully resolve problems. In other places where competition for water should theoretically escalate into violence, Barnaby finds similar resolution. Egypt has become more fluid in its relations with its water neighbors because it wants to improve the climate for trade. Similarly, India and Pakistan, which war with each other with the same frequency that other nations exchange sister cities, have so far used a World Bank-arbitrated treaty to make water peace.

Shafer makes much of the fact that  "in the last five decades there have been no formal declarations of war over water."  He seems to be arguing that there's something so special about water that otherwise warring factions are willing to compromise over its allocation.  Of course, it's also possible that global water scarcity is just beginning.  We're only starting to come around to the idea that water is a market based commodity and that water shortages can limit a country's development.  Moreover, the article ignores the violence that erupted in Cochabamba, Bolivia when that city tried to solve its water problems through market pricing.   It's an interesting piece, but ultimately unsatisfactory. 

Steve Clowney

A Toast to Property

I came across a fun New York Times blog post about the trials and tribulations of trying to find one's "signature cocktail:"

If I had to guess, I’d say that many of us aren’t drinking what we’d truly like to drink.... I recently learned that my husband hated the taste of beer in high school and so insisted on White Mountain, a “malternative” beverage. And by insisted I mean that he forced the kid with the fake ID to not only risk his neck buying beer but also his reputation by adding a case of White Mountain with nary a teenage girl in sight. My husband also sometimes pours himself a glass of apple juice and nurses it, pretending it’s whiskey.... What are we all trying to prove?  

This, of course, got me to wondering if there are any decent property themed cocktails.  The best I could come up with was the Landed Gentry:

1 1/2 oz dark rum
1/2 oz Tia Maria coffee liqueur
1 oz heavy cream

Is this really the best we can do as a profession?  Coffee liqueur and heavy cream? 

Steve Clowney