PropertyProf Blog

Losing faith

It seems to me the so-called 'mosque at ground zero' controversy is a story about losing faith which, ironically, is causing me to lose faith.  I'll try to explain.

As background: a Muslim group has proposed building a center -- not a mosque -- two blocks from -- not at -- ground zero.  Several right wing ideologues (including the former half-term governor of Alaska and former Speaker of the House from Georgia), falling down upon their knees in gratitude for a tailor-made culture war issue, have seized upon the proposal and gotten good traction from it. 

It is, of course, completely incompatible with conservative political philosophy that (1) politicians and demagogues from say, Alaska and Georgia, should use a national platform try to impact a local land use decision in New York , and (2) that government should interfere with and even prevent the practice of religion.  But it seems to me that people now identifying themselves as conservative leaders have lost faith (if they ever had it) in the conservative idea of local decision-making and the free practice of religious faith. 

The fact that the issue has been a political bonanza for those exploiting it suggests to me that we as a people have lost faith in the American idea that all faiths, and all people of good will, are welcome to coexist and even compete in the marketplace of ideas.  The people trying to build this center hoped that it would make a statement to the world about both freedom and respect in the United States, and about the integration of Islam into American life.  How much more clearly could American Muslims say to Al Qaeda and its ilk, 'you don't speak for us', than to help re-build near ground zero?  But instead, our own fundamentalists have rushed to convey the opposite message: Al Qaeda was right; Muslims aren't part of the culture that was attacked; they don't belong here.  And to our shame, we are apparently agreeing, which is making me lose faith in the electorate.

Thank goodness land use decisions are still local.  To their great credit, Mayor Bloomberg and the Manhattan Community Board that must approve the project seem to be resisting all the political pressure the right can throw at them on the principled grounds that NYC is all about respect for all cultures and faiths, and that government has no place interfering with peaceful religious practice. 

It's almost enough to restore one's faith.

Mark Edwards

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Martha Stewart Bakes a CC&R

America's most unusual planned communities...

Steve Clowney

Pomeroy on Surprise Liens on Real Property

Chad J. Pomeroy (Fabian & Clendenin, P.C.) has posted Ending Surprise Liens on Real Property on SSRN.  Here's the abstract:

Academics, law makers, and the general public have long believed that "secret liens" are problematic. In real property, these are liens that are not recorded in the real property filing system. Secret liens become especially problematic when they are enforced, despite their secrecy, against subsequent purchasers of the property. If the purchaser does not satisfy the lien by paying the underlying debt, the lien holder can foreclose on the property. One of the main purposes of having real property recording statutes was to avoid "surprise liens" (secret liens afforded priority over subsequent purchasers) and ensure that real estate purchasers and investors are fully informed. Yet surprise liens continue to exist and are, in fact, increasingly accepted by lawmakers.

This Article examines two prototypical surprise liens – federal estate tax liens and mechanics’ liens – and proposes that these are indicative of a trend wherein modern lawmakers are increasingly tolerant of surprise liens. This Article then examines potential justifications for this deviation from the longstanding preference against these types of liens. First, some argue that property filing systems are economically inefficient. Second, some argue that creditors and purchasers do not actually check property filing systems. Finally, the Article identifies and addresses the possibility that law makers justify surprise liens based upon the identity of the lienor.

After examining these arguments, this Article concludes that the first two justifications are convincingly countered by existing economic theory and circumstances and that creditors and buyers do, in fact, rely on real property records. This leaves lienor identity as the true driver behind the rising acceptance of surprise liens. This justification, identified herein, is ultimately based upon the perceived social economic benefits arising from granting these favored classes the right to surprise liens. A careful examination of the full economic consequences of surprise liens, however, demonstrates that this justification is not sufficient and ultimately self-defeating.

Granting special rights to certain classes of lienors imposes higher individual costs than is commonly believed and also creates significant costs that likely counter any social economic benefits actually created. Additionally, surprise liens (even if economically justified) defeat basic conceptions of fairness inherent in the American system of jurisprudence and arising out of basic concepts of due process and social ethics. This Article therefore concludes that these liens should be removed through a strengthening of recording concepts at both a state and federal level.

Ben Barros

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Jones on Property and Personhood

Jeff Jones (Lewis & Clark) has posted Property and Personhood Revisited on SSRN.  Here's the abstract:

Almost thirty years have passed since publication of Margaret Jane Radin’s seminal work, Property and Personhood, in Stanford Law Review. Since publication, the article has been cited over 700 times. The doyens of property law and theory, and leading scholars in other subject areas, readily have called upon Radin’s piece.

In the article Professor Radin makes a compelling case for two claims. First, proper self-development, or personhood, requires individuals to have secure control over some things in their external environment in the form of property rights. Professor Radin calls property in service of personhood “personal” property. Second, property for personhood is one justification for property rights in general, but also for some current schemes of property entitlement. Professor Radin cites special protections accorded to home residence, rules governing eminent domain power, and free speech limitations on private property as examples of existing property rights that align with property for personhood.

This article presents a theory of property for personhood grounded in social science. The article is responsive to recent calls by scholars for greater research in the social psychology of property as it pertains to property law. The theory follows the framework established by Professor Radin, but uses material culture studies and other social science data to develop enriched accounts of personhood and object relations. The result is an entirely new personhood perspective and theory of property for personhood, including the types of property eligible for legal protection. Part I develops a new personhood perspective, that is, new accounts of personhood and object relations. Using this new personhood perspective, Part II introduces a new theory of property for personhood.

Ben Barros

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The Strange Quasi-Property Status of Corpses.

I'm working on an article about cemeteries, which has led me down several tangential paths.  One of the most obvious is the law's treatment of human remains.  Pretty interesting stuff.  Although at common law there is no express property right in human remains, the nearest relatives of the deceased have a quasi-property right in the remains which arises from their common law duty to bury the dead. 

See, for example, Leno v. St. Joseph Hospital, 55 Ill. 2d 114, 117 (1973) ("The principle is firmly established that while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise.")

The confusion about what the common law means by "next of kin," "nearest relatives," etc. has led to some high profile wrangling over the remains of famous people, Anna Nicole Smith probably being the most recent example.  Surely there have been countless battles that never reach the newspapers.  As with many other legal issues surrounding the final disposition of human remains, it appears that this is an issue that we have collectively ignored and so rely upon a fairly unhelpful common law rather than a comprehensive set of rules.

This brings me to yesterday's New York Times, which describes the efforts of Jack Thorpe, son of Olympic athlete Jim Thorpe, to relocate his father's remains from Jim Thorpe, Pennsylvania, to his family's cemetery plot in Pottawatomie County, Oklahoma.  When the elder Thorpe died of a heart attack in 1953, his third wife Patricia made a curious deal with the towns of Mauch Chunk and East Mauch Chunk, Pennsylvania.  In exchange for the construction of  a monument, perpetual care of the remains, and a roadside attraction, Patricia granted the towns the right to rename themselves "Jim Thorpe."

The children from Jim's first two marriages were divided over this transaction so Jack and his two remaining brothers waited fifty years, until the deaths of their older sisters and stepmother, to mount this challenge.  Since Jim Thorpe was a Native American, his sons are suing for the relocation of his remains using the Native American Graves Protection and Repatriation Act of 1990 to claim that Jack Thorpe, as his son's lineal descendant, has legal claim to his father's remains.

This case gets to the heart of why I find cemeteries so interesting.  There is apparently no money involved in this dispute.  Instead, fifty years after Jim Thorpe's death, “I want to see him put away properly,” Jack Thorpe said, “I want to put him where he wanted to be.”  

You can read the whole article here. 

Tanya Marsh

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Freak Out Day? Holy @#$% Day?

We need a name for that day, during the summer, when you suddenly realize that the new semester is bearing down upon you, and you've accomplished approximately 5-10% of everything you swore you'd get done this summer, for sure, not like last summer when you wasted a huge amount of time trying to play the guitar and napping inside your office. 

This summer I meant to:

(1) re-vamp and re-organize my fall courses; and

(2) complete one article that's been accepted; and

(3) make significant progress on a second to be submitted in the fall; and

(4) contribute witty and deeply provocative posts here several times a week.

So far, I've managed to:

(1) try to play the guitar; and

(2) take some outstanding naps.

. . . . OK, honestly I'vew gotten a lot more done than that.  But, I got an email today letting me know that I was supposed to have posted my first assignment for the fall semester of Property I already.  Thus the title of this post.  Apparently, I used to know something about "property", even taught it recently, and am expected to teach it this year to "law students."  All of this is only vaguely familiar to me at this point.

If you have suffered a similar experience, we need a name for this day.  Any suggestions?

Mark Edwards

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Lehavi on Property Rights in an Era of Global Finance

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Property Rights in an Era of Global Finance on SSRN.  Here's the abstract:

This chapter for the Encyclopedia of Financial Globalization studies the unique challenges of property rights in an era of global finance. It first defines the fundamental features of property, trying to bridge the gap that often exists between lawyers and economists in conceptualizing this term. The chapter then explains the local origins of property laws and the ways in which their traditional construct is being increasingly challenged by the forces of globalization. It surveys the prominent institutions and mechanisms that currently address the cross-border effects of property rights through supranational norm-making or other types of coordination among different national property systems. Finally, the chapter moves to a more resource-specific analysis of the challenges of property rules in a globalized era. It assesses how the ordering of property rights in land, chattels, intangibles, and intellectual property can be better adapted to a rapidly-changing global financial environment.

Ben Barros

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Farber on Owning Up to the Environment

Daniel A. Farber (UC Berekely) has posted Owning Up to the Environment on SSRN.  Here's the abstract:

This essay argues that, rather than being a constitutional bulwark against environmental regulation, certain kinds of property rights can actually ease constitutional barriers created by current Supreme Court doctrine. These environmental property rights (EPRs) are either rights to prevent environmental degradation (such as conservation easements) or limited rights to impair the environment (such as tradable pollution permits.) Among other possible benefits, these property rights may help nudge constitutional law in a more environmentally friendly direction in the areas of standing, takings, and the federal commerce power.

Ben Barros

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Christie on Beachfront Property

Donna R. Christie (Florida State) has posted Of Beaches, Boundaries and SOBs on SSRN.  Here's the abstract:

As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however – setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches – a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.

Ben Barros

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Hauser on Home Mortgage Modification in Bankruptcy

Susan E. Hauser (North Carolina Central University - School of Law) has posted Cutting the Gordian Knot: The Case for Allowing Modification of Home Mortgages in Bankruptcy on SSRN.  Here's the abstract:

More than 5 million mortgages have gone into foreclosure since 2007, and an additional 8 to 13 million foreclosures are projected to follow before the current foreclosure crisis abates. Voluntary loan modification programs have failed to ameliorate the crisis, in large part because mortgage lending abuses and declining home values have left many borrowers stranded in "under-water" mortgages.

This article endorses a targeted amendment to section 1322(b)(2) of the Bankruptcy Code that would allow bankruptcy judges to oversee the modification of residential mortgages written to borrowers during years when mortgage-lending abuses were most rampant. Part I of this Article examines existing Bankruptcy Code provisions that allow the modification of other types of loans and then traces the history of the existing statutory and case law that currently prevents borrowers from modifying the terms of most residential mortgages in bankruptcy. Part II describes legislation presently pending in Congress and explains why allowing home mortgages to be modified in chapter 13 bankruptcy offers an efficient and fair solution that not only allows borrowers to remain in their homes, but also benefits lenders and taxpayers. Part III considers and distinguishes the counterarguments offered by the mortgage banking industry.

My conclusion is that allowing mortgages to be modified in chapter 13 plans offers distinct advantages to all parties. Accordingly, a time-limited amendment to section 1322(b)(2) would provide a simple and elegant mechanism for reducing the pain that the home mortgage crisis is causing to borrowers, communities, creditors, and the national economy.

Ben Barros

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Saxer on Property Rights in Water.

Shelley Ross Saxer (Pepperdine) has posted The Fluid Nature of Property Rights in Water on SSRN.  Pun presumably intended.  Here's the abstract:

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Ben Barros

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Rose on Liberty, Property, Environmentalism

Carol M. Rose (Arizona) has posted Liberty, Property, Environmentalism on SSRN.  Here's the abstract:

The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes.

Ben Barros

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Notions of Property and Citizenship in New Haven Colony, 1639

I spent the morning reading through the Records of The New Haven Colony and Plantation from 1638 to 1649, as copied and published in 1857.  Really interesting stuff touching on early colonial notions of land and ownership.

For example, a General Court on the 4th of January, 1639 wrote [note, I modernized the spelling for ease of reading]:

"It is agreed by the towne and accordingly ordered by the court that the Neck shall be planted or sown for the term of seven years, and that John Brockett shall go about laying it out forthwith, and all differences between party and party about ground formerly broke up and planted by English then shall be arbitrated by indifferent men which shall be chosen to that end."  [page 26]

further...

"It is ordered that no planter or planters shall make purchase of any lands or plantation from the Indians or others for their own private use or advantage, but in the name and for the use of the whole plantation." [page 27]

I'm interested about how long this idea of community property lasted and how widespread it was among the colonies.  I note that elsewhere in the Records it is made clear that not all planters are equal.  Some were given vast holdings of land and others were given an acre and a half.  The "owners" were clearly more akin to renters, with the court solemnizing transfers between family members and third parties.  More on the colonial history of land ownership later, if readers are interested.

Although not really property-related, I wanted to share the "Free Man's Charge" from 1639 because I was struck by how consistent it is with modern concepts of citizenship [note: I did not modernize the spelling to give you the flavor of the book]:

"Yow shall neither plott, practice nor consent to any evill or hurt against this Jurisdiction, or any pte of it, or against the civill gouerment here established.  And if you shall know any pson, or psons with intend, plott, or conspire any thing wch tends to the hurt or prejudice of the same, yow shall timely discouer the same to lawfull authority here established, and yow shall assist and bee helpfull in all the affaires of the Jurisdiction, and by all meanes shall promove the publique wellfare of the same, according to yor place, ability, and opptunity, yow shall give due honnor to the lawfull magistrats, and shall be obedient and subject to all the wholesome laws and orderes, allready made, or wch shall be hereafter made, by lawfull authority afforesaid.  And that both in yor pson and estate: and when yow shall be duely called to give yor vote or suffrage in any election, or touching any other matter, wch concerneth this common wealth, yow shall give it as in yor conscience yow shall judg may conduce to the best good of the same."  [page 19]

"You . . . by all means shall promote the public welfare ... according to your place, ability, and opportunity."  The expectations of American civil society, circa 1639.  Good stuff.

Tanya Marsh

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University of Cincinnati Seeks PropertyProf

The University of Cincinnati College of Law invites applications from entry-level and lateral candidates for as many as two tenure-track or tenured faculty positions in a broad number of areas, including agency/partnership/unincorporated business associations,  civil procedure, commercial law, corporations, criminal law, criminal procedure, employment and labor law, evidence, immigration, international law, property, torts, and wills and trusts.  We also seek applications for visiting faculty positions in those areas.  All applicants should have a distinguished academic background and either great promise or a record of excellence in both scholarship and teaching. The University of Cincinnati is committed to a diverse faculty, staff, and student body.  We encourage applications from women, people of color, persons with disabilities, and others whose background, experience, and viewpoints would contribute to the diversity of our faculty. Contact:  Professor Verna L. Williams, Chair, Faculty Appointments Committee; University of Cincinnati College of Law; P.O. Box 210040; Cincinnati, OH 45221-0040, [email protected]. 

Social Media for Property Profs

I'm wondering what kind of social media my fellow property profs use for professional and networking purposes.  I taught undergrad business students last year and we had interesting conversations about their relationship with social media as students and how that would change when they entered the "real" world.  I suspect that the norms that I'm used to as a practitioner are different than the norms in the professional academic world. 

1.  Blogs.  This one is easy since this is, obviously, a blog.  My experience is that blogs are significantly more prevalent in academic circles.  Practitioners don't seem to use them.  I think they're missing out.

2.  Facebook.  When I asked my undergrads how many of them used Facebook, nearly every hand in the room went up.  We talked about their criteria for "friending" and it usually translated to "someone I met at a party once."  One senior had 1000+ "friends."  I, on the other hand, have pretty strict rules about Facebook.  I'm "friends" with my family and actual friends, but not "work friends."  Definitely not clients.  Or students.  I understand that 250-500 million people are on Facebook and it has its place, but I have a hard time imagining how it can be used in a professional context.  

3.  Linked In.  I am a big fan of Linked In, which is much smaller but basically the equivalent of Facebook in the professional world.  I've found it to be very useful to smooth initial introductions to people I'd like to talk to as well as keep those in my rolodex updated on my professional moves.  I have linked with a number of my former students on Linked In and some of them have told me that it helped them find jobs.  Besides helping our students make professional connections, Linked In also has great promise in bridging a gap between academics and practitioners, allowing us to share info with one another.  Any property profs who are members, I'd love to link with you!

4.  Twitter.  For some reason, the accounting profession is in love with Twitter.  Beyond that, it seems to be populated by Ashton Kutcher and Demi Moore fans.  I'm not sure legal academics can do too much with 140-character tweets.

What do you think?  Are legal academics using social media effectively?  Could we do more to use these tools to collaborate and create virtual communities with our colleagues across the country and around the world?  What else could we try?

Tanya Marsh

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Monuments and Histories

For years I've read with interest Al Brophy's posts here at PropertyProf on monuments and their contested meanings, particularly with regard to the southern United States.

During my stint in the Czech Republic this summer, I got to see concrete examples (literally) of the contested meanings of monuments -- and the contested histories they represent.  Below are some photos I took (please forgive my awful photography) of monuments that coexist in Prague today, but that tell very different stories. 

Here is a monument that stands near Hlavni Nadrazi, the main railway station in Prague. It memorializes the liberation of Prague, and much of the Czech Republic, by the Soviet Union in 1945.  The Soviet soldier is embracing a Czech partisan -- or perhaps more accurately, the Czech partisan is clinging to the neck of the Soviet soldier.  Many Czechs justifiably regarded the Soviets as their saviors.  For just one example, when the Soviet army arrived at the Terezin concentration camp, they immediately set up five field hospitals and saved countless victims from the genocidal pit the fascists had thrown them into.

One result of the gratitude many Czechs felt toward the Soviets was a rapid and genuine increase in the political support the Communist party found in the Czech population.  By 1948, the Communists were the largest single party in the the Czech parliament -- and shortly thereafter seized power completely, entering fully into the Soviet sphere.  Today in Prague, if you look carefully, you can still find monuments to the era of Soviet domination, celebrating the alliance -- although even that word would be controversial, since most Czechs would justifiably say the relationship was imposed by force, particularly following the 1968 Warsaw Pact invasion -- between the Czechs and the Soviets. Here, for example, is a bas-relief plaque celebrating the cooperation between the Czechs and Soviets in the achievements of the Soviet space program.  It can be found in the Andel metro station in Prague. 

But of course these monuments masked another story, one of oppression and terror and poverty.  Today in the Czech High Court in Prague, which was once a Gestapo headquarters, and where the Communists conducted Stalinist show trials for advocates of democracy like the executed Milada Horakova, and later-president Vaclav Havel, one can find a series of statues depicting a horrifying confrontation between a man and two wolves.  Ultimately the wolves are captured and impaled, but not until the man has suffered horrific (perhaps nearly fatal?) wounds himself.  (to emphasize my photographic skills, I accidentally included a mop in the picture).  What do these statues mean?  I don't know the intent of the sculptor, but to me they suggest the confrontation between justice, on the one hand, and fascist and communist totalitarianism, on the other.     

And finally, before this post swamps the entire page, there is one of the most stunning monuments I have ever seen.  It is to the victims of communist rule in the Czech Republic.  It is actually six different statutes built into one staircase, emerging from a wood.  To me, it suggests man emerging from a history that has de-humanized him.  What does it suggest to you?  Regardless of how you interpret its specific meaning, to me it creates an almost overwhelming feeling of sorrow -- yes, for the specific victims of communism, but also for all of the people of central and eastern Europe, emerging from a century of almost unbelievable violence and horror, as their world tore itself apart.

What is most fascinating to me, even beyond the particular stories conveyed by these monuments, is that they coexist today in Prague.  We could interpret that as suggesting there is a contest over Czech history, and that would be accurate to some extent.  But I think the real meaning of their coexistence is that the Czechs have resisted, with integrity, a simple narrative of their history.  Good vs. evil is usually a fairytale.  The uncomfortable truth is that most historical moments contain both.  The Czechs have justifiably and unambiguously rejected communism, but as these monuments suggest by their coexistence, they have also rejected the fairytale of unambiguous history. 

Mark Edwards

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Lewyn on Coase and Parking Regulation

Michael Lewyn (Florida Coastal) has posted What Would Coase Do? (About Parking Regulation) on SSRN.  Here's the abstract:

Like many government regulations, municipal minimum parking requirements exist to prevent externalities - most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper, such regulations may in fact increase congestion and pollution, thus creating, rather than reducing, externalities.

Ben Barros

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Accounting Rule May Trigger Change in Commercial Real Estate

I likely think about accounting standards more than most people involved in real estate law, probably because I was in-house at a public real estate investment trust for five years.  So this recent article in the New York Times caught my eye as one example of the impact that accounting standards can have on customs and practices in the real estate industry.

If you're interested, more after the break.

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