PropertyProf Blog

Saxer on Property and Speech

Shelley Ross Saxer (Pepperdine) has posted A Property Rights View: Commentary on Property and Speech by Robert A. Sedler on SSRN.  Here's the abstract:

This Article, published as part of a Symposium on “The Rehnquist Court and the First Amendment,” responds to another Article, titled “Property and Speech,” by Professor Robert A. Sedler. In the Article, Professor Saxer builds upon Professor Sedler’s analysis that the First Amendment can be used as a “sword” against property owners who seek to exclude free expression with claims of private ownership rights and as a “shield” against government attempts to restrict individual rights by regulating property use. While Professor Sedler concludes that, because the First Amendment has been used to significantly interfere with property rights, protection of free expression is strong in the United States, Professor Saxer posits that such a conclusion may show just how weak property rights have become. Professor Saxer argues that the Rehnquist Court has reduced the protection of private property rights against government action, while restricting private property owners’ rights to exclude private actors who trespass or substantially interfere with their use and enjoyment of property interests.

Professor Saxer also addresses a category of government action not mentioned by Professor Sedler – the government’s use of eminent domain, which can be used as a “sword” against undesirable land uses, even if those uses are protected by the First Amendment. Professor Saxer contrasts the treatment of church property and adult businesses in the eminent domain context. The Religious Land Use and Institutionalized Persons Act (RLUIPA) acts as a “shield” against government land use decisions that impact religious land uses by requiring heightened judicial scrutiny. However, adult business land uses are not similarly protected against eminent domain actions.

Ben Barros

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

Tate on Assignability of Charitable Trust Enforcement Rights

Joshua C. Tate (SMU) has posted Should Charitable Trust Enforcement Rights Be Assignable? on SSRN.  Here's the abstract:

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are spelled out in the trust instrument? How many potential assignees may the settlor properly select? Once the right has been assigned to a third party, should that third party also retain the right of assignment, so that the right can potentially be passed from one individual to the next in perpetuity? What would be the ramifications of granting a right of assignment to the settlor’s personal representative? Any resolution of these issues must protect the interests of charitable beneficiaries, but also be fair to trustees and not overwhelm the courts with frivolous litigation.

Ben Barros

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

Rosser on Indians and Judicial Humility

Ezra Rosser (American University) has posted Assumptions Regarding Indians and Judicial Humility: Thoughts from a Property Law Lens on SSRN.  Here's the abstract:

Negative assumptions regarding Indians can be found in the recent decisions of the U.S. Supreme Court and attention to these assumptions is required if courts are to base their decisions on how Indians and non-Indians actually impact each other. This brief article uses a property and liability rules framework to argue for judicial restraint when considering cases that could limit tribal soveriegnty

Ben Barros

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

Saxer on Eminent Domain and First Amendment Land Uses

Shelley Ross Saxer (Pepperdine) has posted Eminent Domain Actions Targeting First Amendment Land Uses on SSRN.  Here's the abstract:

This Article explores constitutional and statutory limitations on land use regulations where First Amendment rights are implicated. The government’s eminent domain power can weaken the protection due undesirable land uses under the First Amendment. Professor Saxer advocates that courts should distinguish between the government exercising eminent domain and the government using typical land use regulation and should impose stricter constitutional limitations on the eminent domain power.

In particular, this Article focuses on how courts have dealt with eminent domain actions targeting adult business and religious land uses. Although these two types of uses are strange bedfellows, they are the land uses that typically involve First Amendment rights and that tend to generate emotional responses from the community leading to content-based regulation. Issues examined in this Article include: eminent domain actions against religious land uses protected under state and federal constitutions, state Religious Freedom Restorations Act (RFRA) statutes, and the Religious Land Use and Institutionalized Persons Act (RLUIPA).; government motivations for targeting protected land uses; and special valuation considerations for just compensation determinations.

Ben Barros

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

Bennett's Bibliography on Condos

Donna S. Bennett (Northern Kentucky) has posted Condominium Homeownership: A Selected Annotated Bibliography of Legal Sources on SSRN.  Here's the abstract:

Following a brief historical sketch of the condominium concept, this bibliography focuses on the development and growth of condominium homeownership in the United States.

Ben Barros

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

Johnson et al. on No Walmart in My Backyard

Daniel K. N. Johnson, Kristina M. Lybecker, Nicole Gurley, Alex Stiller-Shulman, and Stephen Fischer (all of Colorado College) have posted The NWIMBY Effect (No Walmart in My Backyard): Big Box Stores and Residential Property Values on SSRN.  Here's the abstract:

Recent Wal-Mart openings have been accompanied by public demonstrations against the company’s presence in the community, asserting (among other things) that their presence is deleterious to residential property values. This study empirically evaluates that claim, analyzing the spatial correlation between Wal-Mart locations and residential property values, while comparing Wal-Mart with other big-box retailers for a frame of reference and controlling for other important aspects of a home’s market value. We recognize that market value may represent a trade-off between price and patience, so perform a similar analysis using a property’s days on the market to evaluate any big-box effect. Finally, we interpret the resulting effects in two ways, from both the resident’s and retailer’s point of view, casting new light on the NWIMBY effect.

Ben Barros

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

Salkin on Alternate Members of Planning and Zoning Boards

Patricia Salkin (Albany) has posted Providing for Alternate Members of Planning and Zoning Boards: Drafting Effective Local Laws on SSRN.  Here's the abstract:

It is not uncommon for members of planning and zoning boards to have conflicts of interest with repsect to applicants and applications before the board. When these members disclose and recuse themselves from further involvement in pending matters, it can lead to problems including a lack of quorum for the conduct of business and to tie votes resulting in either inaction or in default approvals. A number of states specifically authorize, but do not require, the appointment of alternate members to these local land use boards. However, many of these statutes fail to provide necessary guidance as to how alternate members are to be selected and appointed, and what their responsibilities and powers are during their term of office. This article offers lawyers, municipal officials and other community leaders best practices with respect to the drafting of effective local laws for the appointment of alternative members of planning and zoning boards.

Ben Barros

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

Green and Wachter on The Housing Finance Revolution

Richard K. Green (George Washington) and Susan M. Wachter (Wharton) have posted The Housing Finance Revolution on SSRN.  Here's the abstract:

While other countries dismantled their segmented housing finance systems and linked housing finance to capital markets through deregulated depositories, the US linked housing finance to capital markets through depository deregulation and securitization. Elsewhere securitization has not developed. The US provided the underpinnings for its mortgage security infrastructure with the creation of FNMA in 1938 and in order to create liquidity in the mortgage market required the standardization of mortgage documentation and more fundamentally required that home mortgages within securities would be sufficiently homogeneous that they could trade in liquid markets. These developments allowed 22 years of uninterrupted liquidity in the market for conventional conforming mortgages, to be followed by the creation of a subprime mortgage market backed by securities that were illiquid, nonstandardized and marked to model not to market which allowed systemic underpricing of risk. This paper presents the recent history of the linkage of mortgage funding to financial markets in the US and elsewhere and specifically in the US suggests how the housing finance revolution resulted in the "terror" which has brought down global financial markets.

Ben Barros

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

Pavlov and Wachter on Subprime Lending and Real Estate Prices

Andrey D. Pavlov (Simon Fraser) and Susan M. Wachter (Wharton) have posted Subprime Lending and Real Estate Prices on SSRN.  Here's the abstract:

This paper establishes a theoretical and empirical link between the use of aggressive mortgage lending instruments, such as interest only, negative amortization or subprime, mortgages, and the underlying house prices. Such instruments, which come into existence through innovation or financial deregulation, allow more borrowing than otherwise would occur in previously affordability constrained markets. Within the context of a model with an endogenous rent-buy decision, we demonstrate that the supply of aggressive lending instruments temporarily increases the asset prices in the underlying market because agents find it more attractive to own or because their borrowing constraint is relaxed, or both. This result implies that the availability of aggressive mortgage lending instruments magnifies the real estate cycle and the effects of fundamental demand shocks. We empirically confirm the predictions of the model using recent subprime origination experience. In particular, we find that regions that receive a high concentration of aggressive lending instruments experience larger price increases and subsequent declines than areas with low concentration of such instruments. This result holds in the presence of various controls and instrumental variables.

Ben Barros

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

Novikov on Solar Rights in the US

Igor V. Novikov (Suffolk) has posted State of Solar Rights Across the United States on SSRN.  Here's the abstract:

Solar energy is cheap, abundant, and readily available. Solar energy could help the United States to decrease (and, potentially, eliminate) its dependency on oil imports. However, the rate of solar technology adoption has been slow, to say the least. This paper is an attempt to summarize different ways in which state and local governments, courts, and private citizens address challenges arising from solar power adoption.

Ben Barros

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

Kennedy on Property and Economic Development

David W. Kennedy (Harvard) has posted Some Caution About Property Rights as a Recipe for Economic Development on SSRN.  Here's the abstract:

In recent years, enhancing the security and clarity or formality of property rights has become something of an idée fixe among global development policy experts. This is more ideological assertion than careful history, however. Western economies have experienced periods of aggressive industrialization and economic growth with a wide range of different property regimes in place. Throughout the West, property rights have always been embedded in a complex legal fabric which modifies their meaning and qualifies their enforcement. In fact, most proposals for “strong and clear” property rights rest, at least in part, on lay conceptions about the legal order which are simply not warranted. These include the following: that “property rights” have an ideal form which can be disentangled from the warp and woof of social and economic struggle in a society; that “private order,” including property rights, and “public regulation” can and ought to be cleanly separated, the one supporting the market, the other potentially distorting it; that “strengthening” property rights has no distributive implications, if only because property law concerns the “rights” of individuals over things rather than complex relations of reciprocal rights and duties among people with respect to things; that concerns about social uses and obligations are only properly pursued outside the property regime, through social regulation of one or another sort; that in a well functioning market economy, all “private” rights can and will be freely rearranged by market forces, rendering decisions about their initial allocation unimportant; or that the formalization of property rights leads cleanly to both efficiency and growth, eliminating the need for policy judgment about the desirability of alternative uses and distributional arrangements.

Each of these six ideas supports the notion that the development of a proper law of property can be accomplished without facing complex questions of social, political and economic strategy. But each is incorrect. Property law is a critical domain for engaging, debating and institutionalizing development policy, but it is not a substitute for strategic analysis and political choice. In this short essay, I review these common, if mistaken, ideas about property rights in the West in light of the Western experience. My objective is to place the strategic choices embedded in any property regime in the foreground and lead one to hesitate before accepting conventional neo-liberal wisdom about the importance of “clear” or “strong property rights” for economic development.

Ben Barros

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

The History of Pierson v. Post

Daniel R. Ernst (Georgetown) has a fantastic summary of the recent scholarship on the history of Pierson v. Post in the Green Bag.

Ben Barros

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

The Creed in the Deed

Ralph Waldo Emerson said as a part of his eternal wisdom: "go put your creed into the deed, nor speak with double talk."  Apparently, some people took Waldo (as he affectionately preferred to be called) seriously -- (Ok, so the groups that undertake this practice are very unlikely to draw wisdom from a transcendentalist, but hey, its a good hook).  

During the late 19th century and continuing until even recently, at least one American church group included in its property deeds certain creedal statements of faith.  Here is one example: 

"To have and to hold the aforementioned real estate with all the appurtenances and hereditaments "hereunto belonging or any wise appertaining unto the said trustees for the (Name) Church of Christ, its heirs and assigns in fee simple forever.

"Included in the deed and expressly made a part of the conveyance are the purpose and limitations for which the lot hereinbefore described was purposed, to wit: to be used by the said (Name) Church of Christ for as long as the following practices of worship and work by the said (Name) Church of Christ are maintained.

1. The Holy Scriptures shall be taught and accepted as the final, all-sufficient revelation from God to man, and regarded as an infallible rule of faith and practice.
2. Mechanical instruments of music shall never be permitted to be brought on to the premises, for the purpose of being used in worship, or for any other purpose, use or design.
3. No teacher or preacher shall be allowed use of the building, its premises, and grounds for the purpose of advocating any doctrine or practice which conflicts with the teaching and practice of the (Name) Church of Christ as taught in the Bible and as currently held by the elders, trustees, or members responsible for the execution of this deed. Expressly excluded from such use are any and all teachers, preachers and others who hold to any form of liberalism, modernism, or premillennialism, along with all hobby-riders, factionists and divisive persons, who advocate any doctrine or practice in conflict with the teaching and practice now current in said (Name) Church of Christ.

"After such a time the property shall be held in trust for such members only which remain faithful to the purposes for which this conveyance is made, and for no others; and, when there are no others, the property shall revert to the (Neighboring) Church of Christ, now meeting at (address)."

A couple of comments.  Isn't amazing the intersection of our deeply held values with the tangible things we hold.  This strikes me as very similar to the article Al Brophy wrote several years ago on covenants against Yankees: Whistling Dixie: The invalidity and unconstitutionality of covenants against yankees,10 Villanova Environmental Law Journal 57. One of the covenants uncovered by Brophy and Gnosh in that article was this one: 

The property shall never be leased, sold, bequeathed, devised or otherwise transferred, permanently or temporally, to any person or entity that may be described as being part of the Yankee race. "Yankee" . . . shall mean any person or entity born or formed north of the Mason-Dixon line, or any person or entity who has lived or been located for a continuous period of one (1) year above said line.

Brophy's account traces the unlikely tale of a recent southerner who had not forgotten the war (at least as late as 1998) who attempted to enforce a covenant against yankees in the sale of certain property in Georgia. Like this case, certain church members used the courts (or so I am told) to enforce these creeds against apostates of the faith. Church folk, like Southerners after the war, are greatly invested in their larger normative beliefs, and for some, the best way of expressing it is through the material intrusions of this world -- like property.(Ever wonder why the Catholics and Lutherans disagreed so adamantly in the sixteenth century -- whether the bread and the wine actually became the body and blood of Christ (transubstantiation) or whether it only spiritually became the body and blood of Christ (consubstantiation)). The fact that the idea of the South became a spiritual idea, as Robert Penn Warren wrote, rather than a geographic one after the war, makes the analogy even more appropriate.  Some people just want their religion to touch real dirt. 

And perhaps the law is willing to give a little to allow these covenants to exist.  Brophy notes in his part that the covenant against Yankees may be preserved if the potential owner accedes to the seller's demands to take a loyalty oath to the south.  But, likely the restraint is unenforcible even with an oath.  Again, Brophy: 

Mr. Ingram's offer to allow Yankees to purchase the property if they take a Southern loyalty oath may offer some hope of saving the covenant from invalidation. Even with the dispensation for those Yankees willing to take the oath, a direct restraint on alienation remains, which may be invalid. That is, the oath may not sufficiently free the land from the covenant's restraint on alienation. The oath is difficult to police, which will counsel against enforcement through injunction.

So here's the lesson.  Go ahead and take the apostate down to the river to be baptized -- but don't expect that the deed will prevent him from defying the creeds of the church. 

***

As a matter of full disclosure, I grew up since I was twelve in Church's of Christ.  My wife and I now belong to a denomination that traces its roots to the same movement that spawned Church's of Christ, but is more socially progressive and theologically ecumenical (the Christian Church, Disciples of Christ).  The selection above is from a book written by a Church of Christ minister, Cecil Hook, titled Free as Sons, in which is describes the Creed in the Deed as being against faithful discipline.  I know of no instance as Cecil describes in which Churches actually litigated their creeds, though I also have no reason to dispute his claim. If you are aware of any examples, I would love to know about them, as well as any other instances of faith bodies utilizing their deeds to inject their creeds. 

Marc (MLR)

The Image is of the building at Cane Ridge, where the Cane Ridge Revival took place in 1801, spawning the American Restoration Movement.   

There may be a delay in comments as they are approved.  

Atuahene on Property and Social Transformation

Bernadette Atuahene (Chicago-Kent) has posted Property Rights & the Demands of Transformation on SSRN.  Here's the abstract:

The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classic conception of property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and can serve as a sanctuary for enduring inequality. This is particularly true in countries where ownership is contested and land reform is essential due to pervasive past property theft. Oddly, the classical conception is flourishing in transitional states, like South Africa and Namibia, where transformation of the property status quo is essential. The specific question this Article addresses is: for states where past property dispossession threatens to destabilize the current state, is the classical conception appropriate or do these states require an alternative conception of real property? In this Article, I develop the transformative conception of real property to explore how the exigent need for societal transformation should inspire us to rethink property rights.

Ben Barros

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

Material Girl ... Soon To be Homeless?

Just last week I gave my property students a practice problem about "purple pain for Prince's landlord." (You never know when a propertyprof post from years and years ago will come in handy).  Now I see that Madonna's being sued by a neighbor (in the Dakota?) for disturbing her neighbors.  Sounds like the makin's of a great class discussion.

Another case that could be in the law of people magazine, no doubt.

DiLorenzo on Equity Stripping

Vincent DiLorenzo (St. John's) has posted Mortgage Market Deregulation and Moral Hazard: Equity Stripping Under Sanction of Law on SSRN.  Here's the abstract:

This article examines the failure of the current regulatory structure to adequately protect consumers against risks in a home mortgage lending market characterized by complexity and limited transparency. It explores the reliance of bank regulators, particularly the Federal Reserve Board, on market discipline to control risks and the failure of market discipline. It also explores the Federal Reserve’s view that market intervention is only justified based on net societal benefits. This is a viewpoint that prevented regulatory intervention until the financial sector was in crisis, and a viewpoint that is at odds with the view of the Congress. This article urges a rejection of the net societal benefits standard as the determinant of regulatory intervention in the mortgage market.

Ben Barros

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

Reiss on Landlords of Last Resort

David J. Reiss (Brooklyn) has posted Landlords of Last Resort: Should the Government Subsidize the Mortgages of Privately-Owned, Small Multifamily Buildings? on SSRN.  Here's the abstract:

The absence of stable financing options has long caused difficulties for owners of small multifamily buildings. Despite the ongoing maturation of a secondary mortgage market for small multifamily mortgages, this housing stock continues to shrink due to abandonment, demolition, foreclosure and other causes. As these buildings house many low-income households, some have suggested subsidizing the financing costs for the owners of these buildings. Any proposal to subsidize these landlords to meet affordable housing goals, however, should be predicated on determinations that (i) it is an efficient means to provide housing to the neediest tenants and (ii) the multifamily mortgage market is subject to failures that make such government intervention appropriate.

This article first describes what little is known about small multifamily properties and their owners. It then describes the lending environment for real estate entrepreneurs over the last hundred years. Finally, it evaluates the role the government should play in the small multifamily mortgage sector. The article concludes that subsidizing owners of small apartment building is an inefficient and unwarranted affordable housing policy and that more direct subsidies to low-income households, such as housing vouchers, are preferable.

Ben Barros

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

New Briefs in Stop the Beach

A host of new amicus briefs in the Stop the Beach case are now available online.  Of particular note is the U.S. Solicitor General's brief in support of respondents.  It is, unsurprisingly, very strong.  One thing that emerges from this and other opposition briefs is that this case may not be a good vehicle for considering the judicial takings issue.  So one very real possibility is that Stop the Beach will turn into another Agins or San Diego Gas & Electric.  In those cases, cert was granted to resolve a specific issue (the availability of the inverse condemnation remedy), but various problems with the record led the court to leave that issue to another day. 

Ben Barros

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

LaCroix on Urban Agriculture and the City

Catherine J. LaCroix (Case Western) has posted Urban Agriculture and Other Green Uses: Remaking the Shrinking City on SSRN.  Here's the abstract:

For many decades, the primary challenge of land use law has been how to promote and channel growth and development. Nobody wants stagnation; the cure is growth, and lately the cure has been “smart growth.” In the last several years, however, some cities have begun openly to address a previously unacknowledged truth: some cities will and do shrink. They lose population and have no foreseeable prospect of ever regaining it. The land use planning community has begun to grapple with the issue of the shrinking city, asking how we can achieve managed, “smart” shrinkage To some extent, the answer is to shift density and promote green uses of various kinds This brings us to the legal question Does an organized effort to help a city shrink pose any distinctive legal issues? What constraints might the law impose on a city’s goals of diminishing its infrastructure responsibilities, downzoning its land to less intensive uses, or taking other steps consistent with a goal of managed shrinkage This paper explores a few of those issues, using Cleveland, Ohio as an example. It considers legal challenges the shrinking city might face, particularly when downzoning urban property to promote urban agriculture and other green uses, focusing on the application of takings law It also briefly considers the fairness issues associated with downzoning and the limitations of the current legal structure for revitalizing Brownfields in a setting where traditional redevelopment is unlikely.

Ben Barros

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

Ostrom Wins Nobel Prize in Economics

Elinor Ostrom, whose work has been very influential in property scholarship, will share this year's Nobel Prize in Economics.  If you are not familiar with her work on common pool resources, you should be.

Ben Barros

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