PropertyProf Blog

The Blazed Locust Tree

I haven't been blogging that much lately, in part because my wife and I are in the process of buying a new house.  The house was built in 1810, and the property is in a pretty rural area.  The property description includes these gems:  "BEGINNING at a point immediately southeast of a white oak tree . . . thence by same, South 60 degrees East, 278.25 feet, more or less, to a blazed locust tree . . ."  We're having a survey done . . .

Ben Barros

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Acceptable Deviance and Property Rights: a shameless plug and request for feedback

A draft of my article Acceptable Deviance and Property Rights (forthcoming, Connecticut Law Review, which I link to here because it has an uncommonly gorgeous website for a law review) is finally up and running at SSRN.  Frankly, I already have some changes in mind for it.  I would really appreciate any feedback anyone would care to give.  You can e-mail me any suggestions at mark.edwards at wmitchell.edu, or post them in the comments section.  Here's the (admittedly rather abstract) abstract:

Compliance with – or deviance from – law is often dependent upon the law’s convergence with – or divergence from – normative sensibilities. Where the legality and social acceptability of behavior diverge, deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.

Mark Edwards

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The Extraordinary Story of Dr. Karel Des Fours Walderode, Part II

When we last left off, our protagonist Dr. Walderode was a citizen and permanent resident of the newly created Czech Republic.  [For those keeping score, his family estate in Bohemia had, by this time, been situated at different times in six different countries, and controlled at various points by an empire, a fascist dictatorship, a communist dictatorship, and -- on 3 occasions -- a republic].

In 1992, having met all the conditions for restitution of property seized under the Benes Decrees, Walderode filed his claim for restitution of his family estate, parts of which were now owned by 4 Czech state agencies, one town, and several private companies.  And that, believe it not, was when things started to get really complicated. 

Walderode's petition for restitution was a political hot potato, and then-Prime Minister, now President Vaclav Klaus, who is notoriously against restitution claims under the Benes Decrees, decided to enter the fray.  He sent a "legal opinion" to the relevant agencies, stating that Walderode's claim was "legal" but "unacceptable."  Nevertheless, for a time Walderode was successful: the Czech Central Land Office granted his petition, and he took possession of his lands in September 1993.

But opponents of the restitution did not give up.  For two years they kept up the political pressure, and finally in November 1995 the Central Land Office annulled its previous decision and the petition was re-opened.  In February 1996, the Czech parliament passed what was popularly known as "Lex Walderode," amending the restitution law to require that claimants could demonstrate uninterrupted Czech citizenship from the time their property was seized under the Benes Decrees.  Because Walderode's citizenship was revoked by the Communists when he went into exile, he could no longer meet the conditions for restitution.  At age 92, Walderode lost his property again.

That year, he took his case to the UN Human Rights Committee; by the time it issued its opinion in his favor in 2001, he was already dead.  The Czech government did not re-open the case. 

Walderode's surviving spouse, Dr. Johanna Kammerlander, is a lawyer and has continued to fight for restitution of the estate.  In September 2008, the Czech Supreme Court found in her favor -- with regard to about a half acre of forest.  But the precedent set in that case is expected to lead to the return of much of the estate.  

We'll have to see what happens: the extraordinary story isn't finished yet.   

Mark Edwards

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The Extraordinary Story of Dr. Karel Des Fours Walderode

If the history of the 20th century in Europe could be encapsulated in the life of one man, that man might be Dr. Karel Des Four Walderode. 

He was born in 1904 and died in 2000, and his life sat at the intersection of the social and political upheaval that radically transformed, and re-transformed, and re-transformed again property rights in Europe.

Of French and German descent, he was born in the Kingdom of Bohemia, then part of the Austro-Hungarian empire, where his wealthy family had lived since the 17th century and owned, among other property, vast estates and a castle.  Until age 14 he was a citizen of the Austro-Hungarian empire.  But the Austro-Hungarian empire ceased to exist in 1918 with the reformation of Europe following World War One.  Walderode found himself situated in the newly formed Czechoslovak Republic, of which he was now a citizen.

In 1939, Germany invaded and occupied the parts of the Czechoslovak Republic it had not already grabbed under the Munich Agreement of 1938.  Germany dissolved the Czechoslovak Republic, and proclaimed the creation of a new state: the German Protectorate of Bohemia.  Walderode now found himself not only living in the German Protectorate of Bohemia, but also declared by Germany a German citizen, because his first language was German. 

In 1945, with the defeat of Germany, the German Protectorate of Bohemia ceased to exist.  The Czechoslovak Republic came back into existence.

The restored democratic Czechoslovak government under Edvard Benes issued what are now known as the Benes Decrees.  Under the Benes Decrees, people of German descent were presumed to have aided the German occupation.  As a result, they had their property confiscated without compensation, had their citizenship revoked, and were expelled from the country (although expulsion is not required under the Decrees, people who lost their citizenship were in fact expelled).   If, however, people of German descent could prove their loyalty to the Czechoslovak Republic during occupation, they could retain their citizenship and stay in the country.  Walderode was one of the very few able to prove that he remained loyal to the Czechoslovak Republic during the occupation (even though he had been conscripted for a year into the Wehrmacht), so he retained his Czechoslovak citizenship and was not expelled.  However, he still lost his property rights in his family's estates.  [You can read more about the seizures of property and expulsions under the Benes Decree in this excellent article by Timothy William Waters].  

In 1948, the Communists seized power in the Czechoslovak Republic, eventually renaming the country the Czechoslovak Socialist Republic.  Walderode was forced into exile by the Communists, who didn't care for his privileged lineage and most certainly were not impressed by that fact that he had recently proven his loyalty to the democratic government that they had just overthrown.  When he went into exile, the Czechoslovak Socialist Republic revoked his citizenship.

In 1991, after democratic government had been restored, he returned to a country now named the Czechoslovak Federative Republic and settled in Prague.  He was made a Czechoslovak citizen again in 1992.  Also in 1992, the Czechoslovak Federative Republic passed a law for the restitution of agricultural and forest property seized under the Benes Decrees, provided the claimant could demonstrate: (1) he had been a citizen at the time the property was seized; (2) he was now a permanent resident of the country; (3) he was loyal during the German occupation; and (4) he was a citizen at the time he submitted his claim for restitution. 

6 months later Czechoslovak Federative Republic itself ceased to exist, with the creation of separate Czech and Slovak Republics.  Walderode now found himself living in the Czech Republic.  The Czech Republic retained the restitution law.  Walderode met all four of the conditions for restitution, and so submitted his claim.  But . . .  .

What happened next will appear in Part II of this post!

Mark Edwards

Salkin on Renewable Energy and Land Use Regulation Parts I and II

Patricia Salkin (Albany) has posted Renewable Energy and Land Use Regulation (Part 1) and Renewable Energy and Land Use Regulation (Part 2) on SSRN.  Here are the abstracts:

Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Ben Barros

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Chiappetta on The Practical Meaning of Property

Vincent Chiappetta (Willamette) has posted The (Practical) Meaning of Property on SSRN.  Here's the abstract:

The paper argues that defining property functionally – as a flexible tool for implementing all manner of social decisions allocating control over available resources rather than in terms of fixed attributes or outcomes – substantially clarifies related public policy debate. The approach reveals we should reject characterizations of property as “good or bad” or as a “yes-or-no” proposition to which we react as well as the assumption that those with whom we disagree about its proper deployment are fools badly in need of enlightenment, or worse. These false dichotomies distract us from the core difficulty in property debate – our honestly and strongly held but conflicting beliefs regarding what constitute “just” resource control outcomes; a disagreement we should acknowledge cannot be fully resolved by reason, much less passion. Finally, the functional approach keeps us resolutely focused on the practical effects of our respective normative positions and, in particular, on the consequences if the resulting property rules fail to adequately “deliver the goods” to all concerned. When a society’s property law does not produce “enough and good enough for all” those suffering the adverse effects must ultimately abandon the joint enterprise, a process history shows to be both unpleasant and unpredictable regarding winners and losers (if those terms can be said to apply at all). This practical distributional inquiry does not (and cannot) mandate individual or group action, but it does merit serious consideration every time we find ourselves debating how “best” to use property law to allocate control over increasingly scarce and contested resources.

Ben Barros

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Hudson on The Public Trust and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand on SSRN.  Here's the abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Ben Barros

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Singer on Original Acquisition of Property

Joseph William Singer (Harvard) has posted Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity on SSRN.  Here's the abstract:

First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.

Ben Barros

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Sandercock and Lebovits on NY Landlord-Tenant Law

Margaret B. Sandercock and Gerald Lebovits (St. John's) have posted New York Residential Landlord-Tenant Law 101 for the Transactional Attorney on SSRN.  Here's the to-the-point abstract:

This article discusses the basics of New York residential landlord-tenant law for the transactional attorney.

Ben Barros

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Town Can't Close Road at Border

A town in Connecticut tried to close a road at the town line to prevent the road from being used for access to a major residential development in the adjoining town.  No way, said the Connecticut Supreme Court.  From the Hartford Courant:

The town of Hebron has no right under state law to close one of its roads at the town line just to cut off access to a proposed residential development in a neighboring town, the state's highest court has ruled.

In a unanimous opinion written by Chief Justice Chase T. Rogers and released Monday, the state Supreme Court determined that the Hebron Board of Selectmen exceeded its authority when it voted in 2005 to block access to Wellswood Road at the Columbia town line.

Among the reasons the selectmen had cited for closing the road was to protect it and the neighborhood from excess traffic from the proposed development in Columbia. That, however, and Hebron's stated concerns about traffic safety and determining which town will provide emergency services to the development were not sufficient reason, the justices concluded.

"We agree that Hebron has the power to build roads within the limits of the town," Rogers wrote. "That does not mean, however, that it has the power to close roads at the town border for the sole purpose of preventing residents of adjoining towns from using town streets."

H/T Matt Berger

Ben Barros

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Legal Education and the Housing Bubble

Over at the Conglomerate Blog, Christine Hurt (Illinois) has an interesting post comparing law school debt to the sub-prime mortgage market.  Here's a taste:

For a couple of decades now (and until a few years ago), the conventional wisdom was that real estate would always rise in value and that the world would always need lawyers.  Home ownership at whatever cost, particularly with tax-deductible interest rates, was better than alternatives such as renting; financing a law degree with student loans, some of which was low-interest and tax-deductible, was an equally good investment given the value of the law degree.  Just as something about home ownership seemed intrinsically good, so did getting a law degree, from any law school. . . .  Anyway, more and larger houses were built; more and larger law schools were built.  Then, as if on a dime, the world changed . . . .

This post was included in a flurry of recent posting at the Conglomerate about the future of lawyering and legal education.  Interesting stuff!

Mike Kent

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Aesthetic Nuisance in the News

You just have to read a news story that begins like this:

They say a man's home is his castle, but does that include the right to turn it into an eyesore?

On a quiet side street south of Daytona Beach, Robert Hodges' corner house is painted randomly with purple, yellow, orange, green and pink. A toilet and rusting bike stand by a tree, old pieces of a wood deck are scattered and a large sand mound is decorated with skis, golf clubs, plastic ducks and Christmas ornaments. Criss-crossing the front yard are several clotheslines featuring boxers, a pair of hot-pink feathery skivvies and colorful extra-large bras.

"Oh, yes, it's beautiful!" declares Hodges, a snowbird retiree from Memphis, Tenn. who prefers the moniker Prince Mongo. "It's absolutely gorgeous."

And it's his own personal protest.

Upset at complaints by neighbors over a wood deck that prompted county officials to cite him for a code violation, he transformed a $300,000 beachside home into a wildly provocative property that stands out as much as he does.

(H/T Daniel Ernst)

Ben Barros

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Historic Preservation and Takings

My property class did Penn Central late last week.  With impeccable timing, the St. Petersburg Times ran a story this weekend about a somewhat similar lawsuit arising out of local historic preservation regulations.  The City of St. Petersburg has designated the Hotel Detroit, built in the late 1880s, as an historic property.  According to the owners of the building, which is now used to house condominiums, the designation effectively thwarts their plans to demolish the structure and build a new high-rise in its place.  As this story shows, more than 30 years later, the debates in Penn Central remain alive and well.

Mike Kent

P.S.  Thanks to Stetson law student Megan Robison for bringing the case to my attention.

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Is that Property which the Law Declares to be Property?

In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves.  Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation.  Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.

Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property."  For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property.  They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt.  Generations had relied on the law, and the law told them that slaves were property. 

Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a  legally wrong, unconstitutional act.  So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise).  I then told my class to explain, if they thought I was wrong, why.

I made them focus on whether slaves had ever really been property, as the law had said they were.  I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor.  There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim.  So I insisted they tell me: is that property which the law declares to be property?   

It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning.  I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it.  But if that's true, then what is the source of authority that says otherwise?  Something greater than the Constitution?  And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not?  Isn't that the essence (so to speak) of natural law?

Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.

Mark Edwards

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Neighbors v. Neighbors in New Jersey Beach Renourishment Dispute

The AP has a great story about a controversy brewing in Long Beach Island, New Jersey.  The beach is eroding, placing some beachfront homes at risk and endangering the community’s main recreational attraction.  But renourishment of the beaches would create dunes that would block some beachfront owners’ views of the beach.  When a nearby town used eminent domain to take an easement from some holdouts, the trial court gave a huge compensation award to the property owners.  So now the mayor and town officials of Long Beach Island are encouraging people to convince, and perhaps harass, their neighbors who are holding out.

Ben Barros

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Blacklisted

The New York Times ran a fascinating piece last week about tenant blacklisting.  Turns out there are over 600 firms in the country that collect and sell to landlords the names of people who've been in housing court eviction proceedings.  More startling, to me, is that at least in New York City, the courts themselves are selling the names to these firms. (To quote the Times, "As soon as an eviction case is put on the calendar by a clerk or lawyer, New York’s housing court system sells the names of tenants to screening companies. The court has sold case information since 1990.")

There are so many troubling things about this practice that it's difficult to know where to begin.

First, no distinction is made between tenants who are vindicated in court and those who aren't -- all are blacklisted.  The chilling effect on tenants who might otherwise rightfully withhold rent are obvious.

Second, names are collected -- so people with the same name as someone who once appeared in housing court are blacklisted.  But until recently, at least, they had no right to discover why their application to rent was denied.

Third, one of the most pernicious effects of the foreclosure crisis has been the eviction of blameless tenants.  When a property is foreclosed upon, leases are terminated -- even if the tenant has never missed a rent payment.  The practice is so normatively objectionable that the sheriffs of several major counties -- including, at various times, Cuyahoga, Cook and Wayne (homes to Cleveland, Chicago and Detroit, respectively) -- have refused to carry out evictions of blameless tenants.  Nonetheless, such tenants' names may be added to the blacklists, so that not only are they evicted through no fault of their own, but they may be unable to find another place to rent. 

Last, it is morally objectionable, in my opinion, that a housing court would have a profit interest in blacklisting tenants.  Nothing can or should prevent the companies from gathering the information for themselves, but courts have no business participating for profit in a practice that chills access by rightful claimants.

Fortunately, the New York City City Council just passed the Tenant Fair Chance Act, which requires landlords to disclose which companies they plan to use for background checks on potential tenants.  Tenants can then order their files from the companies, and at least have the chance to correct inaccuracies.

Mark Edwards

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The Policy Tensions of Non-conforming Uses

An article in this weekend's Sarasota Herald-Tribune provides a nice real-world example of the policy tensions that underlie the law of non-conforming uses, especially in developing areas that bring lots of new residents.  A family whose businesses have been allowed to continue since 1975, when the local zoning regime was adopted, appear to be coming under increasing pressure from newer residents who find the businesses incompatible with the current feel of the community.  As I've noted before, I like to provide students with examples of how the theories we study in class play out in real life situations, and these types of skirmishes help demonstrate the conflict that often arises between protecting individual property rights and establishing a more communitarian outlook.

Mike Kent

P.S.  Thanks to Stetson law student Kimberly Clark for bringing the article to my attention.

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Supreme Court Denies Cert in Marshall Islands Takings Case

Earlier this week, the Supreme Court denied a petition for certiorari filed by Marshall Islanders seeking to reverse a 2009 ruling of the Federal Circuit.  The case has a fascinating factual context and raises interesting questions about the relationship between the Takings Clause and sovereign immunity.

As explained here by the WSJ Law Blog, the litigation was based on damages resulting from U.S. nuclear testing in the Marshall Islands in the 1940s and 1950s.  In the early 1980s, groups representing descendants of the Bikini and Enewetak Atolls sued the federal government for just compensation, asserting that the destruction of land occassioned by the testing constituted a taking of property under the Fifth Amendment.  During the course of this litigaiton, the United States and Marshall Island governments entered a Compact of Free Association, subsequently adopted by Congress, that purported to settle the takings claims.  In exchange for the United States' acceptance of responsibility and the establishment of a tribunal to administer the just compensation claims, the Marshall Islands agreed to settle all past, present, and future claims based on the testing.  Additionally, the compact documents provided that no United States court would have jurisdiction to entertain such claims.

The tribunal subsequently awarded a total of $949,210,000 to the plaintiffs, even though Congress only appropriated $45,750,000 for payment of awards.  See People of Bikini v. United States, 554 F.3d 996, 998 (Fed. Cir. 2009).  To date, less than 1% of the tribunal's award has been paid, and only $1,000,000 remains in the claims fund.  See id.  In 2006, the plaintiffs again brought suit, asserting that they still had not received just compensation for the takings of their property.  In 2009, the Federal Circuit affirmed a decision of the Court of Federal Claims to dismiss the suit, holding that the claims had been waived by the plaintiffs and that the federal courts had been stripped of jurisdiction to hear them in any event.

The cert briefs, which can be found on SCOTUSBlog (scroll to the bottom of the page), raise interesting issues concerning the Tucker Act, sovereign immunity, and the "self-executing" nature of the Takings Clause (for those who like that sort of stuff).

Mike Kent

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The General Average and Necessity

Over at CoOp, Gerard Magliocca has an interesting post comparing the maritime doctrine of general average, where some compensation is owed to people whose property is destroyed to save a ship, and the property doctrine of necessity, which holds that no compensation is due when, for example, property is destroyed to prevent the spread of a fire.

Ben Barros

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More on the Meteorite

Andrea Boyack (Catholic) has an interesting essay in the National Law Journal on ownership of the Lorton, VA, meteorite.  Check it out!

Ben Barros

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