Thursday, September 30, 2010

Recording Acts In-Class Exercise

Today in Real Estate Transactions we began talking about the Recording Acts (Chapter 14 in Professor Lefcoe's book).  We talked a little bit about the reasons that we have Recording Acts and how the system works in America.  I walked them through how to do a title search with the White House (look for the deed from G.W. Bush to B. Obama, then search forward for encumbrances, then search back for prior grantor, etc.).

But most of today's class was spent with the students working alone or in small groups to conduct an actual title search. I provided them with the name of a homeowner and the legal description.  I picked Sarasota County, Florida, but any county with on-line records would have worked.  I gave them five questions that walked them through the title search.  As they went through the questions, I would stop and make sure everyone was on track.  When class was over, everyone handed in a sheet with their answers (this won't be graded) and I posted my model answer on TWEN.  On Monday, we will talk about the different kinds of recording statutes and this example will be helpful to illustrate the applicability of the doctrine.  One of the deeds they uncovered, for example, went unrecorded for 14 months.  Most of the documents were delayed 3 weeks or more after they were signed.

This exercise worked really well for my class because it allowed me to talk about the Recording Acts in an actual context, as long as a lot of other related issues, like MERS.  I am thinking of using a version of this exercise in my Property class next semester. 

If anyone is interested in a copy of the questions and my model answer, send me an e-mail.  I'm happy to share.

Tanya Marsh

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September 30, 2010 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 29, 2010

Property LLMs?

In the last two weeks, LLM programs have come under scrutiny (See here, here, here, and here).  The general consensus seems to be that the master of law degree is valuable for aspiring tax attorneys and graduates of foreign law schools looking to work in the US.  What about the real property-based LLM?  At least four U.S. schools--John Marshall, Miami, Pace, and New York Law School--offer an advanced degree in Real Estate.  Shelby Green, Director of Pace's program, promoted the LLM as a solution to the growing complexity of Real Estate law (see here, pdf).  If I'm reading Prof. Green correctly, she's arguing that real estate practice--like tax--has become so complex and sub-specialized that an extra year of study is merited.  I think you could also argue that law schools do a rather poor job of teaching transactional skills and, thus, a year of focusing on negotiating and closing deals could give a student an edge in the job market. 

Does our audience have any sense if these programs are worth the cost and time?  Does having a real estate LLM give applicants a significant boost in hiring?  If an aspiring real estate attorney couldn't find work, would they be better off working for free in a real estate practice?

Steve Clowney

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September 29, 2010 in Real Estate Transactions | Permalink | Comments (3) | TrackBack (0)

Tuesday, September 28, 2010

The Fight for the Arctic

In 2007, Russia planted its flag on an underwater mountain range arising from the oil-rich Arctic seabed, adding a show of power to its legal claim that the range belonged to it under international law.  Not surprisingly, other nations claiming property rights in the Arctic seabed loudly objected, most notably Canada.  As the ice shelf in the Arctic disappears, making areas accessible that were inaccessible before, arguments over sovereign property rights are gathering momentum.  Russian and Norway recently concluded a 40-year dispute over Arctic territories.  And this week scientists and diplomats from a number of nations claiming rights are meeting at a conference in Moscow.Arctic  For an excellent source of analysis of international relations in the Arctic, see Professor Michael Byers's blog, Who Owns the Arctic? 

Beyond the obvious geopolitical and resource-management importance of the dispute, it is fascinating to see the array of tactics contemporary competing claimants to property use to establish their dominion over it, particularly for those of us who teach first-year property students.  The parties' use of law, custom, marking & signaling, and raw power to make their claims certainly would not surprise anyone teaching Johnson, Pierson and Ghen.

For example, Russia has gone to great lengths to mark the territory as its own, using a submarine to plant its titanium flag.  It has argued that by custom, the Arctic is its own, since more Russians live within the Arctic circle than any other nationality.  And Russia and Canada are both submitting claims to the territory to the UN for a ruling under the Convention on the Law of the Sea.

Russian flag on seabed

In addition, both Russia and Canada are making a show of expanding their presences in the region.  Both countries have found new enthusiasm for sponsoring scientific expeditions to, and building research stations in, the region.  The presence of those stations sends an important signal about territorial claims.  More ominously, in moves that both display territorial claims and threaten the use of raw power, both countries have increased their military presences there as well.  Canada, in fact, held military exercises there and vowed to increase its spending on defense forces for the area.

We teach students that actual, physical presence can be a key to making a successful property rights claim under doctrines such as adverse possession.  That same impulse seems to be animating the competing nations, even without the benefit of a doctrine that would reward their efforts.  That suggests to me that doctrines such as adverse possession merely ratify a deeply felt normative sense that claims to property rights are strengthened by the fact of physical presence.  And this may be our last, best opportunity to see competing claims to "new" earthly territory -- in other words, the doctrine of discovery, and the raw military power that animates it, at work.     

Mark A. Edwards

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September 28, 2010 in Miscellaneous, Natural Resources, Property Theory, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Sidney (NY) Town Board Objects to New Cemetery

At its August 12th meeting, the town board of Sidney, New York (population 10,000) voted to seek an injunction against the Muslim Osmanli Naksibendi Hakkani Sufi Order on Wheat Hill Road to prevent it from continuing to use a portion of the land for cemetery purposes.  The order will also seek to disinter the two bodies buried there. 

In an article in the local paper, Supervisor Bob McCarthy described the town's basis for the action:

"These burials were done illegally, without notifying local authorities or obtaining proper permits," he said.

"We will be seeking to have these bodies disinterred and stop future burials," he said. "Unauthorized cemeteries have the potential of placing a financial burden on the local government as well as dictating the use of the land for perpetuity.

"It is unfortunate that we have to take these steps to prevent people from gaming the system and climbing on the backs of an already overtaxed local taxpayer, but anything that we have to do to prevent this will include every religion," McCarthy said.

When pressed to describe what legal steps the private landowners failed to follow before establishing the cemetery, Mr. McCarthy admitted that didn't "know what the exact law is."

In fact, New York law permits private landowners to use their property for cemetery purposes provided that it is permissible under local zoning codes.  When the Muslim cemetery was established in Sidney in 2005, the town provided written assurance that the use was within applicable zoning codes.

Apparently, the only law that the cemetery violates is the New York state law which forbids cemeteries to be mortgaged.  That's a common restriction throughout the states and makes perfect sense.  What lender wants to foreclose on a cemetery?  But the $200,000 mortgage on the larger parcel leaves the owners with two reasonable options -- pay off the entire mortgage or subdivide the property (with the permission of the lender) and carve the cemetery parcel out of the mortgage.

The Huffington Post has picked up this story and presents it in the broader context of Islamophobia.  I find this fascinating because the town board apparently doesn't know what rules apply to the creation of new cemeteries in the town.  This is part of a broader problem that my research touches on -- we make a number of assumptions about cemeteries but most people, even lawyers and, apparently, governmental officials, really have no idea what the rules are which govern their creation and management.

Tanya Marsh

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September 27, 2010 in Land Use | Permalink | Comments (2) | TrackBack (0)

Diamond and Homeownership, Shared Equity, and Poverty

Michael Diamond (Georgetown) has posted The Meaning and Nature of Property: Homeownership and Shared Equity in the Context of Poverty on SSRN.  Here's the abstract:

While a Blackstonian view of property envisaged a "despotic dominion" of an owner over a thing, property has never been so absolute. In fact, as I argue in this paper, the nature of property has been culturally constructed and property means different thinks across cultures and even over time within the same culture. The question of the nature of property was highlighted for me when a student questioned whether equity limitations placed on homes purchased by low income buyers using subsidized public financing created a "second class" form of homeownership.

In attempting to answer this question, I examined the ideas of property and ownership over various cultures and then concentrated on those ideas in the American cultural, legal and political history. After examining the various views of property in America, I examine the reality of property ownership and the restrictions on such ownership in today’s legal and political milieu. I conclude by suggesting that the equity restrictions associated with some publicly financed mortgages are not different in kind from other restrictions on property generally that are widely accepted in society. Finally, I suggest that a concept of property might be broadened to include the reasonable expectations of future potential users. Thus, a recognized principle such as stewardship might give property like entitlements to generations of low income persons who will be seeking decent affordable housing in the future.

Ben Barros

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September 27, 2010 in Home and Housing, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Smith on The Structural Causes of Mortgage Fraud

Jim Smith (Georgia) has posted The Structural Causes of Mortgage Fraud on SSRN.  Here's the abstract:

Mortgage fraud, often a violation of federal and state criminal statutes, covers a number of different types of behavior, all of which have the common denominator of conduct that has the intent or effect of impairing the value of residential mortgage loans. Mortgage fraud has become prevalent over the past decade and shows no signs of diminishing despite the collapse of domestic housing markets during the past two years. This paper analyzes the complex relationships between prime mortgage loan markets, subprime markets, and various types of mortgage fraud. This paper concludes that the root causes of mortgage fraud are associated with the core institutional and structural components of mortgage markets, which cut across all types of residential mortgage products. The organizing principle is the historical evolution from proximity to distance within the mortgage market, which is explored along three axes. First, geographical distance between lenders and borrowers has replaced geographical proximity. The mortgage market is national, with local lending institutions no longer making a significant proportion of the loans that are originated. Second, transactional distance has replaced transactional proximity. Lenders and borrowers have little direct contact; instead intermediaries such as mortgage brokers, appraisers, insurers, and closing officers, separate the principals. Third, financial distance has replaced financial proximity. Previously both borrowers and lenders had significant financial interests in the mortgage loan transaction. The borrower had equity in the property, and the lender held the loan in its portfolio. Presently many borrowers have no equity (or negative equity) in their homes, and due to the securitization of loans through the secondary mortgage market, few originating lenders retain a stake in the loans they create. Reforms that could serve to reduce borrower-lender distance or to ameliorate its effects include the fashioning of better closing procedures for verifying borrower identity, providing a premium for community-bank loans to local borrowers, making originating lenders liable for all misconduct by appraisers, requiring significant down payments for borrowers, and allowing secondary market purchasers full recourse against originating lenders for losses caused by borrower defaults.

Ben Barros

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September 27, 2010 in Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Eagle on The Really New Property

Steven J. Eagle (George Mason) has posted The Really New Property: A Skeptical Appraisal on SSRN.  Here's the abstract:

This article reviews recent scholarship invoking the prophetic tradition in American jurisprudence and calling for the transformation of property law. It contrasts imposed top-down social change with Burkean and Oakeshottian gradual change derived from conversation within our legal and cultural tradition. The work of Robert Ellickson is presented as illustrating the development of property law in the Burkean tradition. Transformative property scholarship, on the other hand, largely reflects Osborne and Gaebler's view that government should steer and private actors row, reinforced by Thaler and Sunstein's call for soft paternalism. The article asserts, however, that Kant and Berlin's admonition that all of humankind is "crooked timber" precludes officials from a privileged position, a postulate well supported by public choice theory.

The article views the change in conceptual thinking from Hohfeldian property to Heller's anticommons and assertions of disintegration and entropy of property. These set the stage, for instance, for advocacy of "rightsizing", through the shrinking private parcels through smart growth and densification, and the supersizing of government-controlled land through condemnation for urban redevelop.

Other topics discussed are regionalism, new governance, and the creation of affordable housing, through, among other things, the rearrangement of traditional landlord-tenant relationships. The article expresses skepticism that flaws inherent in the top-down transformation of property would permit outcomes that are coherent and effective, and could withstand capture by affected interest groups.

Ben Barros

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September 27, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Ng on Property and Progress

Alina Ng (Mississippi College School of Law) has posted Property and Progress on SSRN.  Here's the abstract:

Copyright laws aim to protect intangible interests in the use of literary and artistic works to provide creators with an incentive to produce. The law rationalizes that by granting exclusive “property” rights in creative works, authors will be encouraged to produce works for the ultimate benefit of society as the potential for commercial rewards is assumed to be the primary motivation for creativity. But, the exclusive control these rights give creators and owners of copyrighted works have been the subject of severe criticism because they create access barriers to the use of content, which, free speech and civil liberties advocates, argue should be free of restrictions for civil discourse and political dialogue. This Article argues that, contrary to contemporary thought that rights in the copyright system hampers progress, the protection of individual rights in literary and artistic works - besides encouraging creativity for progress - also brings into the copyright system a normative order for social conduct that advances society towards the Constitutional goal of progress. A strong institution of property rights for the copyright system correlates with greater progress of science and arts because the recognition and protection of individual authorial autonomy instills individual and collective social responsibility in how works are used and produced, generates public respect for the act of authorship, and fosters education, research, and economic development through the production and use of literary and artistic works. The creation of diverse works will contribute towards progress of science and arts only if an underlying foundation of property rights protect the creator of a work to instill a sense of individual autonomy and responsible authorship and directs public use of the work toward socially beneficial purposes in ways that strengthen, rather than weaken, the moral fabric of society. This Article concludes that the progress of science and arts is not only dependent on a system of statutory copyright provided by the Copyright Act but on an institution of property laws to provide normative guidance on proper conduct in the production and use of literary and artistic works in ways, which would advance progress.

Ben Barros

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September 27, 2010 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, September 25, 2010

Bikeshare Programs, Ctd.

In reponse to this post, a commentator writes:

Your account of what 'history' tells us about bikesharing is too selective to offer any true insight. Your omission of any mention of success stories like Montreal and Minneapolis, and your eagerness to file Paris under 'duds' is also rather questionable. I understand the this is a property theory post, but by focussing on only one aspect (vandalism) you ignore the numerous positive effects bike share schemes have on a city. Surely the success or failure of a scheme should be measured against all of these things.

This is a fair response that deserves some attention.  The first claim is that my post ignored a number of successful bikeshare programs.  The commentator cites Montreal's Bixi bikeshare program as an example.  I'm not so sure Montreal helps the pro-Bikeshare argument.  Bixi is currently over $30 million in debt.  Last year, expenses outpaced revenues by almost $7 million.  Yet, as the commentator rightfully notes the program may generate many wonderful externalities that justify this use of taxpayer dollars.  The Bixi program, for example, may reduce automobile trips and increase the health of city residents.  This, too, flounders when confronted with the facts.  Researchers at McGill report that 86% of Bixi trips replaced walking, or rides on personal bikes or public transit.  Only 10% of rides replaced car trips.  Thus, the environmental and health benefits seem pretty week.  

My point here is not that Bikeshare programs are evil.  Some of my best friends ride bikes.  It just seems that in a world of (very) limited resources, Bikeshare programs are a poor way to spend government dollars.   

Steve Clowney

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September 25, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, September 24, 2010

Property Casebooks: and Pricing Issues

Thanks to the Property Prof gurus (including my marvelous colleague Al Brophy) for inviting me to post here.  From Al's post, you may know that I hope to address teaching and learning issues, based in part on my experience working on the "Carnegie Report" on Legal Education ("Educating Lawyers").

To begin, however, I'd like to raise a different issue:  Do those of us who teach property law weigh the cost of casebooks and supplements in making decisions about required texts?

I've served in recent years at chair of the UNC Chapel Hill faculty senate, and as the chair of the UNC Faculty Assembly (representing faculty at all 17 UNC system campuses).  A crucial issue that has been raised in both settings concerns the costs of student textbooks and what faculty members can do to try to keep educational costs down for our students in these challenging financial times.

I've long been a user of the Dukeminier & Krier property casebook (since entering law teaching in 1981... in part because I'm a UCLA Law graduate and knew both of the original authors).  More recently I changed to the casebook by Freyermuth, Organ, Noble-Allgire and Winokur (Property and Lawyering, 2d, 2006) because I wanted to see how its "lawyering exercises" might be used to engage students and teach more than doctrine.

In spring 2009 I adopted a new casebook by John Sprankling and Raymond Coletta of McGeorge--

Property: A Contemporary Approach (Interactive Casebook Series, West) (first edition, 2009).  Last year, my students loved it, and I did too (it was well edited, provided importance choices since it included a chapter on intellectual property as well as one on environmental law), had a very strong teachers' manual, an on-line version that made it easy to prepare while traveling, and was authored by two thoughtful professors who had also authored important and thoughtful supplemental teaching resources (on global issues in property law and study aids).    My students last year rated this casebook much, much  more favorably than others I have used.  I enjoyed teaching from it and thought all was well.  I adopted it again for this fall semester (when I'm teaching a large section of nearly 90 students)... All was well....

Until... (drum roll please), I was preparing my fall semester syllabus and tried to find out more about West's pricing policies particularly as they applied to students with used books.

The saga will continue in my next post....

In the meantime (it's a quiz!)

1.  Do you consider the cost of textbooks and supplements in making decisions regarding required instructional materials?  Why or why not?

2.  Do you know what the materials you require cost?

3.  Have you heard of the federal textbook legislation that supposedly requires publishers to advise faculty members about costs?

Your comments and insights are most welcome.


--Judith Wegner (UNC School of Law)

September 24, 2010 in Teaching | Permalink | Comments (2) | TrackBack (0)

When The Star of David Doesn't "Comply" with a Historic District

A Hasidic groups alleges discrimination over its plans to renovate a historic building in Litchfield, Connecticut:

This summer, a federal judge ruled that sufficient evidence of "discrimination against Jewish people" may exist, warranting a trial over the Borough of Litchfield's denial of a Hasidic group's application to build a synagogue on the west end of Litchfield Green. The ruling virtually guarantees a trial this fall on a controversy that has deeply divided the town.

Steve Clowney

September 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 23, 2010

Wegner Visiting With Us

I'm delighted to announce that my beloved colleague Judith Wegner will be sitting with us for a spell.  Judith was dean here at UNC for a decade and more recently was principal investigator on the Carnegie Foundation's major study on legal education, part of its "Program on Preparation for the Professions."  Judith was also president of the AALS in 1995.  Before entering teaching, Judith worked in the Office of Legal Counsel and in the appellate staff at Land and Natural Resources.  You can find a couple of Judith's most recent articles here.

I expect that Judith will be talking about her work with the Carnegie Report, as well as pedagogy, and a lot of other things, too.

Al Brophy

September 23, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Korngold on Globalizing Conservation Easements

Gerald Korngold (New York Law School) has posted Globalizing Conservation Easements: Private Law Approaches for International Environmental Protection on SSRN.  Here's the abstract:

For the past thirty years nonprofit organizations have revolutionized open space and habitat conservation in the United States through the use of conservation easements. Pursuant to legislation, nonprofits may now acquire and hold perpetual restrictions that prevent alteration of the subject land’s natural and ecological features. These rights can be held “in gross,” with the result that the nonprofit need not own land near the restricted property and can be based in a distant location.

Based on this success, proponents in more recent years have advocated the export of “conservation easements” from the United States to other countries. A vehicle like a conservation easement and having some or perhaps all of its attributes could be employed in other countries to achieve various local and national conservation goals. My thesis, however, is that while conservation easements could be a useful tool for preservation of land outside of the U.S., they may not be the most effective or suitable framework to advance conservation in all countries. Rather than pushing for adoption of an American style “conservation easement” elsewhere, other countries and American (and global) advocates of conservation devices should engage in a process to determine a given country’s appropriate conservation toolbox. That process should be free of American legal and conservation jargon and without a predisposition for U.S. legal structures, values, and policy choices. Each country must determine on its own whether private conservation restrictions meet its economic, social, and political realities and aspirations (many of which are quite different than the American experience reflected in American conservation easements) and what attributes the device should have on key issues such as duration, in gross enforcement, role of government, etc. These national and local goals can then be given life by finding an appropriate legal structure, ideally consistent with the country’s own jurisprudence and system.

This article will provide a framework of the major policy and legal issues that could, and in my view should, inform a country’s decision to adopt private conservation restrictions. These include considerations of cost, efficiency, preference for private vs. governmental actors, the benefits and costs of perpetual limits on land, public regulation of land as an alternative, the specter of neocolonialism in environmental controls, the nature and capacity of the country’s nonprofit sector, and the local legal system. Finally, the learning about conservation restrictions should be a two-way street, not just the export of American methods: the views of some other countries about governmental involvement in private conservation may teach valuable lessons to American jurisdictions about the need for an increased role of government and the public in certain aspects of the selection, modification, and termination of a some conservation easements.

Ben Barros

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September 23, 2010 in Land Use, Recent Scholarship, Servitudes | Permalink | Comments (0) | TrackBack (0)

The Future of Property


Here's an amazing slideshow of Chongqing, the largest city that you've never heard of.  And here's an excerpt of a Foreign Policy article on the changes in China' western region:

These are good times indeed for Chongqing, home to 32 million people and growing so quickly its maps are already out of date by the time they are printed. ... In Chongqing's northern New District today, it is possible to drive for more than half an hour past high-rises of 30 to 50 stories, block upon block, where five years ago there were only fields. In 1998, Chongqing had a GDP of just $21 billion; by 2009 it had quadrupled to $86 billion. Last year, Chongqing's GDP grew at an eye-popping 14.9 percent, nearly twice the impressive growth rate of China as a whole. How did this happen?

Steve Clowney

(photo used under creative commons license)

September 23, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 22, 2010

A Squatter in the Empire State Building

There is a short article in yesterday's New York Times that provides an interesting landlord/tenant issue for students to unravel.

Landlord leased an office suite in the Empire State Building to a mortgage broker.  Mortgage broker (apparently contrary to the terms of the lease) sub-leased a portion of the space to a law firm.  Law firm, through no written agreement, arranged for a solo practitioner to use "an alcove."  The attorney had keys to the suite and a building-issued security ID.

Mortgage broker defaulted on the lease and landlord pursued eviction proceedings.  Everyone but the solo practitioner left.  It apparently took the landlord seven months to officially notice that the solo practitioner was still there.

So question #1 would be to try to characterize the legal status of the solo practitioner both before and after the eviction of the mortgage broker. 

But the other interesting aspect of the article is that the lawyer didn't think he did anything wrong. 

Mr. Perlman said he did not consider himself a squatter or law-breaker. Yet he had no sympathy for the building’s management, which he complained had been trying to push out small tenants to make way for larger tenants. The mortgage broker was one of several small tenants that sued the Empire State Building over their electricity bills. “I didn’t think of it as a scam,” Mr. Perlman said. “If I’m guilty of anything, I’m guilty of procrastinating.”

Perhaps I represented landlords for too long, but I find it striking that an attorney can think that he can take something of value (possession of space in the Empire State Building) for seven months without paying the owner a dime and then think that he has done nothing wrong. 


Tanya Marsh

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September 22, 2010 in Landlord-Tenant | Permalink | Comments (3) | TrackBack (0)

Tuesday, September 21, 2010

Property Rights and Neighbors

For better or worse, I tend to be confrontation-averse.  But five minutes ago, I had a brief, unpleasant interaction with a neighbor over a little property rights issue -- and what's worse, an issue I wouldn't care about, except that it's a property rights issue! 

Readers, he parked on my lawn.  Not the whole vehicle, mind you -- just 2 wheels of his SUV, which he had parked in the street in front of my house.  But the wheels were completely off the street and on my front lawn.

Now, I have to confess -- my lawn sucks.  Compared to my neighbors, it is evident that I don't care much about my lawn.  I mow it every week, but here in suburban Minnesota, that's tantamount to saying I feed my kids occasionally.  I have another neighbor  who -- I kid you not -- measures his grass, that would make a derby horse weep at its blueness, with a ruler to make sure it's even across his yard.  Me?  Crab grass, dandelions, thistles, it's all the same to me as long as its mowed eventually and not an eyesore.

So perhaps in the ethos of suburban Minnesota, I had unwittingly communicated a message to my neighbors (after all, as Carol Rose tells us, property is a type of language) that I didn't care what happened to my lawn.  And frankly, that's mostly true, except that, dammit, it's my lawn to care or not care about!

I don't know where this primal feeling comes from that wells up in me when I see my property rights disrespected, even inadvertently, but it's there: this cold anger that makes me put at risk social relations that are potentially far more valuable than two wheel-sized patches of dead grass. 

Even though I know it's absurd, I wanted his damn SUV off of my lawn.  So, what to do?

The way I saw it, I had four options:

(1) Ignore it and stew; or

(2) leave a note on the windshield; or

(3) walk around the SUV several times, hands on hips, shaking my head, hoping the neighbor would notice my unhappiness and come move the SUV; or

(4) go knock on the neighbor's door and tell him I didn't want him parked on my lawn.

As usual, I picked the most ridiculous option: #3.  I probably looked like a peacock in a mating ritual.  But, as I was going back into my house, my neighbor emerged from his to move the SUV. 

Now, I felt like I couldn't not say anything without looking like a total wimp.

So, I said, "Hey, you know, it's parked on the lawn."

He said, "Yeah, I didn't notice it when I pulled in."

But, you see, that's impossible.  I mean, the vehicle was tipped up at angle (slight, but impossible not to notice!  I think . . . . .), so if he really didn't notice, it was because he couldn't care less about my property rights.  And, if he did notice, but did it anyway, it was also because he couldn't care less about my property rights.  Therefore, I zapped him with this witty rejoinder:

"OK, thanks."

He moved the SUV deep into his own driveway -- passive agressively deep? -- and went back into his house, unsmiling, as did I.  No doubt he's furiously typing away on his own blog right now -- PeopleWhoParkonOtherPeople' -- about what a jerk I am, and how if there's ever a fire or a tornado, he's not going to pull my family out of the wreckage, because I've violated the bonds of good neighborliness in favor of the assertion of my property rights.  I can't say Robert Ellickson didn't warn me!

This episode begs two questions, at least:

(1) where does this primal urge to assert our property rights come from, even if we don't much care about the property itself?  and

(2) what kind of rotten luck does it take to have a property professor move in next door?

Mark A. Edwards

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September 21, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, September 20, 2010

Destoying Black Property = Commemorating Civil Rights

Slate highlights a property-rights story coming out of Montgomery, Alabama:

Over the last decade or so, dozens—perhaps hundreds—of homes in Montgomery have been declared blighted and razed . . . The owners tend to be disproportionately poor and black, and with little means to fight back. And here's the kicker: Many of the homes fall along a federally funded civil rights trail in the neighborhood where Rosa Parks lived. Activists say the weird pattern may not be coincidence.  . . .

The city of Montgomery is destroying the homes of low-income, African-American residents along a trail commissioned to celebrate the civil rights movement.

Steve Clowney

September 20, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, September 17, 2010

The Strange, Utopian Quest for a Workable Bikeshare Program


Two years ago the “Smartbike” program launched in Washington, D.C. (for the uninitiated, bikeshare programs offer free or low-cost access to community-owned bicycles for trips around a city).  By all accounts, Smartbike has been an unqualified disaster.  No one bothered to promote the program, only long-term memberships were offered (freezing out tourists), and there weren’t many places that a rider could pick-up or drop-off a bike.   

Despite the total failure of Smartbike, D.C. is trying again; This week the D.C. Department of Transportation debuted Capital Bikeshare.  The new plan certainly seems like an improvement.  The city has heavily hyped the scheme (they’re on Facebook!), prospective users had input on the locations of the bike stations, and tourists will have access to bikes for 24-hour periods.

Despite these positive innovations, my Property-themed crystal ball indicates that Bikeshare will certainly falter.  Why?  No individual bears a significant portion of the costs if they damage a bicycle – a flat tire here, a bent rim there. Thus, users have little incentive to take care of the bikes or ride them in a safe and reasonable manner. This is classic Tragedy of the Commons territory.   

History, too, shows the folly of D.C.’s efforts.  In 2007, Paris launched Velib -  a remarkably well-funded  and well-promoted attempt at Bikesharing (the Velib program has 20,000 bikes compared to D.C.’s 1000).  Yet, by 2009, 80 percent of the bicycles had been stolen or damaged:

It is commonplace now to see the bikes at docking station in Paris with flat tires, punctured wheels or missing baskets.  Some Velib's have been found hanging from lampposts, dumped in the Seine, used on the streets of Bucharest or resting in shipping containers on their way to North Africa. Some are simply appropriated and repainted.

The failure of the Bikresharing programs is not confined to France.  Other plans have had difficulty (financial or otherwise) in Melbourne, Portland, Stockholm, and Amsterdam.  If both theory and history show that these programs are duds, why do governments keep insisting on giving them a go?

Steve Clowney

(Picture:  The author, thoroughly enjoying a Velib ride before ditching his bike in the Seine)

September 17, 2010 in Property Theory, Travel | Permalink | Comments (2) | TrackBack (0)

Wednesday, September 15, 2010

Between Kitsch and the Sublime

Twine A meditation on the World's Largest Ball of Twine and the other enormous things that dot the American Landscape:

If size and apparent uselessness can make otherwise ordinary things seem extraordinary, so too does location. America’s largest things are typically found along roadsides within or near small, rural towns. There they become “topographical mascots,” as the critic and poet Susan Stewart once called them, familiar and easy enough to overlook amidst the urban clutter and commotion. In a small town with few attractions and little evident activity, it is much harder to ignore or take for granted a mammoth bagel (Mattoon, IL) or a vast fishing bobber (Pequot Lakes, MN). There such things retain their strangeness; they are highly visible and meant to be reckoned with.

Steve Clowney

(pic:  The much-contested Largest Ball of Twine in Cawker City, Kansas.  Photo used under creative commons license)

September 15, 2010 | Permalink | Comments (4) | TrackBack (0)

Tuesday, September 14, 2010

Lovett on Land Reform in Scotland

John A. Lovett (Loyola New Orleans) has posted Progressive Property in Action: The Land Reform (Scotland) Act 2003 on SSRN.  Here's the abstract:

This article responds to a material deficit at the heart of American property law scholarship. For years, property scholars have debated whether the right to exclude deserves to be the centerpiece of our property regime in the United States. This article seeks to transform that debate by introducing to an American audience a remarkable piece of property legislation recently enacted in Scotland. Part I of the Land Reform (Scotland) Act 2003 creates a right of responsible, non-motorized access across almost all land and in-land water in Scotland, private as well as publicly owned, for purposes of recreation, education and passage. This legislation thus reverses the traditionally robust, ex ante presumption in favor of a landowner’s right to exclude and replaces it with an equally robust, ex ante presumption in favor of the public’s right of responsible access. By introducing this new property right in Scotland and creating an entire property regime to contextualize the right, a regime that is much bolder, in fact, than has been established in England and Wales under the better known Countryside and Rights of Way Act 2000, Scotland has provided property scholars with a case study in property law institutional design that is unique in modern legal systems. This article will demonstrate how the LRSA reveals that it is possible for a property regime to promote the ends of human flourishing without necessarily sacrificing all of the efficiency gains and coordination benefits that flow from the common law’s traditional preference for rules of exclusion.

Ben Barros

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

September 14, 2010 in Law Reform, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)