PropertyProf Blog

Jane Jacobs: Hero of New York

A recent piece in the New Yorker highlights what Manhattan might have looked like if Robert Moses had prevailed in the fight over the Lower Manhattan Expressway.

Check out the architecture.

Steve Clowney

Pic from the Paul Rudolph Archive, Library of Congress Prints and Photographs Division

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Want to Know What's a Dumb Idea?

Giving 150 midterms, that's what.  I apologize for my lack of participation as of late, but merciful light is at the end of the grading tunnel.

I like to take some of the pressure off the final and give the students some feedback, but I now think the cost in workload outweighs the benefit.  Of course, I thought that last year, too, and still gave midterms this year.

Could someone please copy this post and send it to me in October of next year?

Do you give midterms, and why or why not?

Mark A. Edwards

 

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Affordable Housing Bill Marches On

The New Jersey assembly has approved a bill that would revamp how cities and towns meet their constitutional obligation to provide affordable housing:

The bill requires that towns make 10 percent of new development affordable . . . . Developers who do not set aside 10 percent of their units as affordable would pay a 3.5 percent penalty to the state, which would require the money be used to construct affordable housing in the same town. Or towns could set 20 percent of their development land aside for those earning up to 150 percent of their region’s median income.  The enforcement responsibilities will be transferred . . .to the Department of Community Affairs.

Governor Christie has promised to veto any bill that imposes new fees on developers.

Steve Clowney

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A Corner in Brooklyn, Then and Now

Here is a fascinating little gem for those interested in preservation and architecture -- two photos of the same corner in Brooklyn, one from 1937 and one today.  The buildings are the same, but their facades are completely different. 

The piece includes a link to the New York Public Library Digital Gallery.  That may be a dangerous find for me -- I could waste a LOT of time going through old photos of New York.

Tanya Marsh

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Fracking for Dollars

A primer on the most important property issue of the year: The fate of the Marcellus Shale.

Steve Clowney

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Adverse Possession -- A Unique Solution to the Foreclosure Crisis?

The NY Times has a piece today on Mark Guerette, an enterprising person in Florida who sought out homes in working-class neighborhoods that were apparently abandoned by the banks.  He sent letters to the record owners and lenders, informing them that he planned to take over the homes, renovate, and lease them.  He now manages and leases 17 homes, even paying the property taxes that are due.  The renters, who are getting a bargain, love him.  The neighbors seem pretty happy that the homes have been fixed up and are occupied.  The government (and presumably the lenders) aren't so happy.  Mr. Guerette is scheduled to go on trial next month in North Lauderdale on fraud charges.

This is a pretty interesting case and I plan to use it when we discuss adverse possession in Property.  Mr. Guerette seems to have done a lot of things correctly within the rules of the doctrine of adverse possession.  He gave notice to owners and mortgagees, he disclosed to the tenants in writing that he wasn't the legal owner of the property, he fixed up the homes and paid property taxes. 

And I thought adverse possession was a fairly dead doctrine!

Tanya Marsh

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Barros on the Complexities of Judicial Takings

I've posted a draft of my article The Complexities of Judicial Takings on SSRN.  Here's the abstract:

In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

I've already touched on some of these issues in various blog posts (e.g., here).  Comments of all sorts would be very welcome.

Ben Barros

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Texas Supreme Court Decision in Severance v. Patterson

Over at the Land Use Prof blog, Matt Festa has a great post on Severance v. Patterson, an important Texas Open Beaches Act case recently decided by the Florida Supreme Court.

Ben Barros

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International Academic Association on Planning, Law and Property Rights Conference

The fifth conference of the International Academic Association on Planning, Law and Property Rights (PLPR) will be held between 26–28 May 2011 at the Faculty of Law, University of Alberta, in Edmonton, Canada. The program and call for papers may be found at http://www.law.ualberta.ca/plpr/2011/call_for_papers.php

Professor Jill Grant of Dalhousie University and Professor William Fischel of Dartmouth College are this year's keynote speakers.

We invite papers on all topics related to law and planning, including:

- legal aspects of urban, regional, and rural planning;
- land use controls;
- property rights, expropriation and compensation;
- housing;
- land policy, land management, and land readjustment;
- heritage preservation;
- environmental protection;
- land use and aboriginal rights;

Abstracts may be submitted by December 15, 2010 to [email protected]
For further information, contact Eran Kaplinsky at [email protected].

Who Owns Your Building (Code)?

In a brief talk, Carl Malamud argues that building codes and other legal materials should remain in the public domain rather than being put under the control of private owners:

 I have some sympathy with Malamud's position, but I think his argument is way overbroad.  As I've argued elsewhere (see here), there are strong reasons to think that state and local governments fail to innovate at an optimal level.  Currently, a jurisdiction that produces a failed innovation is forced to shoulder all of the costs of its experiment.  At the same time, a jurisdiction that crafts successful policies cannot stop its neighbors from copying its ideas and filching the benefits. Faced with this scenario, the rational government will prefer to copy the successful experiments of others rather than attempt to forge new solutions to tough problems.

Property rights could help. Granting state and local governments some kind of property right in their legal innovations would help them to better internalize the benefits of their risktaking, and would ultimately lead to more and better innovations.

Steve Clowney

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Horizontal and Vertical Cities

Witold Rybczynski, one of my favorite writers on urban issues, has an article at Slate on what Americans want from cities.  It is based on his new book, Makeshift Metropolis: Ideas About Cities.

Ben Barros

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All Politics is Property

Mark wrote a great post at the end of the summer arguing that we're underselling the importance of property to our first year students.  He argued that, as a group, we don't make it clear what's really at stake.  Afterall, "property rights are at the center of the most massive struggles in world history."  I think Mark's argument is largely correct.

However, in addition to that point, I think we also need to drive home that property rights are at the very center of almost every local election.  Check out this election guide (pdf) that covers the city council races here in Lexington.  Of the six "Big Issues" facing Lexington, four are directly related to property: the preservation of local horsefarms, the expansion of our urban service boundary, design standards for downtown, and the demolition of old buildings (the other two issues were about investigating fraud and reducing spending).  You simply can't be an informed citizen without some basic knowledge of property stuff. 

And if that doesn't make property the most important subject on the first year curriculum then I don't know what does...  

Steve Clowney

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US Shopping Center Law Conference

I'm heading to Hollywood (Florida, that is) for the annual US Shopping Center Law Conference, put on by the International Council of Shopping Centers.  They are expecting 1150 real estate transactional attorneys this year, up from the past few years. You can find details, and download the program (under the heading "Event Brochure" here.

For a real estate transactional attorney, the Shopping Center Law Conference is the best way to get a finger on the pulse of the practice.  Basic programs have titles like "Title Insurance and Surveys: From Point A to Point Z" and "Basics of Insurance" (you can blame me for that unexciting name -- that's the seminar I'm co-presenting).

But a number of programs each year also focus on timely issues, like "Minefields, Sheer Cliffs and Rough Roads: The Landscape of Loan Workouts in 2010" and "Economic Risks and Opportunities for Real Estate Following the Great Recession" (to be presented by Prof. Gyourko of Wharton).

It should be a great program this year and I encourage those teaching Real Estate Transactions to consider attending next year.

Tanya Marsh

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Supreme Court Grants Cert in Derivative Title Patent Case

Dennis Crouch has the details at PatentlyO.  As he notes, the case presents some derivative title issues that resemble those that come up in other property contexts.

Ben Barros

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Our Kind of People

The N.Y. Times on sellers of property who look for buyers who share their values.  As one seller remarked:

My idea is to find someone who deserves the house and can feel what is here. We brought our kids up in this house, and we feel it’s a magical place.

Steve Clowney

The Top Ten Property Paper Downloads

In honor of the first of the month, here are the top ten recent Property paper downloads from SSRN:

1. [3783 downloads] Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory by Christopher Lewis Peterson (Utah)

2. [350 downloads] Global Climate Governance to Enhance Biodiversity & Well-Being: Integrating Non-State Networks and Public International Law in Tropical Forests by Andrew Long (Florida Coastal)

3. [114 downloads] Medical Marijuana Meets Zoning: Can You Grow, Smoke and Sell that Here? by Zachary Kansler (Albany) and Patricia Salkin (Albany)

4. [86 downloads] Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations by Patricia Salkin (Albany)

5. [82 downloads] The Florida Beach Case and the Road to Judicial Takings by Michael C. Blumm (Lewis & Clark) and Elizabeth Dawson (Lewis & Clark)

6. [79 downloads] Information Failure and the U.S. Mortgage Crisis by Adam J. Levitin (Georgetown) and Susan M. Wachter (Penn)

7. [64 downloads] Adam Smith in the Courts of the United States by Robin Paul Malloy

8. [63 downloads] Of Woodchucks and Prune Yards: A View of Judicial Takings from the Trenches by Mark Murakami, Tred Eyerly, Robert H. Thomas

9. [63 downloads]  Why There Might Not Be Many Damage Claims Arising from the Spanish Property Insurance Cartel? by Francisco Marcos (Instituto de Empresa Business School)

10. [62 downloads] Progressive Property in Action: The Land Reform (Scotland) Act 2003 by John A. Lovett

Steve Clowney