PropertyProf Blog

History's Lost Black Towns

The Root profiles 15 Black communities that history threatens to forget:

Black Americans have played a vital role in building this nation.  Eager to live and prosper as free people, we have established our own towns since Colonial times.  Many of these communities were destroyed by racial violence or injustice, while some just died out.  

Steve Clowney

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Garnett on Land Use Patterns, Disorder, and Crime

Nicole Garnett (Notre Dame) has posted The People Paradox on SSRN.  Here's the abstract:

American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.

I always enjoy Garnett's work, and think this piece plugs a significant hole in the land use literature.  It also builds on and expands many of the themes of advanced in Ordering the City - a must read for anyone interested in urban governance.

Steve Clowney

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Restrictive Covenants in Custom Home Subdivisions

The Indianapolis Star has an interesting article this morning describing a situation that is doubtlessly occuring in many upscale communities across the country.  There are several subdivisions in Hamilton County, just north of Indianapolis, that were marketed as available to custom home builders only.  The large lot sizes, large home sizes, and required architectural features were supported by both restrictive covenants and zoning restrictions.  But, as you may have heard, the economy crashed.  Many smaller custom home builders in Indianapolis have gone out of business.  The original developers of the subdivisions either lost unbuilt lots to the bank or have been forced to sell them in a bulk sale to production home builders.

So the people who built their $1 million plus custom dream homes (which is a VERY VERY nice house in Indianapolis) in these subdivisions are now battling to keep out the $350,000 to $500,000 production homes. 

Lawsuits have already been filed, so I suspect that we will be seeing more appellate court decisions across the country soon interpreting restrictive covenants that the homeowners understood as limiting the subdivisions to custom-built homes.

Tanya Marsh

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Submitting Law Review Articles this Season?

I'm finishing up my article on policy responses to the commercial real estate debt crisis, hoping to submit it to law reviews next week.  I am planning to submit to a few policy journals, but mostly general law reviews since, of course, there are no law reviews that focus on property law (except the ABA Real Property, Trust and Estate Law Journal).

How many other Property Profs are planning on submitting articles this cycle?  When are you planning on submitting?

Tanya Marsh

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The Space of Revolution

Nezar AlSayyad, a Professor of Architecture and Urban Design at Berkeley, discusses the role that the design of Tahrir square played in the Egyptian Revolution:

Twenty-three streets lead to different parts of it, which is why it was so successful with the demonstrators. There isn't one big boulevard that you can block off, and there are two bridges that lead to it as well. One of them saw a clash between the regime and the demonstrators. It's also the case that all of downtown Cairo, which isn't that big, has a street that leads to side or another of Tahrir Square.

Steve Clowney

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Easements in the News

Over at Land Use Prof, Jessica Owley shines a light on a recent article from the Washington Post that discusses the trouble that easements can cause for buyers of land.  The basic story goes like this: In 2003, the Sandler family bought a recently subdivided lot in suburban D.C.  For five years, the Sandlers enjoyed their new backyard - they mowed the lawn, put up a basketball hoop, paved the driveway, and built a tidy little flower bed.  Then, last year, officials from Montgomery County showed up.  They told the Sandlers that almost all of the their backyard is part of a forest conservation plan agreed to by the property's previous owner. Specifically, a conservation easement in their deed forbids them to "mow, dig, erect fences or pull weeds."  The raised garden bed would have to go, along with the basketball hoop and the asphalt driveway. (See excellent infographic here)

Predictably, the Sandler's claim they knew nothing about this easement.  But... There's is a paragraph in their contract stating that the property contains "land dedicated to a conservation easement as part of a Forest Conservation Plan." That paragraph is checked "Yes" and the Sandlers signed the form.  Professor Owley explains that the article is not hesitant about pointing the finger at real estate agents, and then she offers some suggestions on reform. 

What I find interesting about all this are the comments following the article.  I expected that others would chip in with horror stories about the complexity of closing a real estate transaction.  All those pages!  All those signatures!  The reality of the comments is very different - the public (or at least the public that comments on Washington Post articles) has absolutely no sympathy for the Sandlers.  A few samples:

well if they had read the fine print, their lives wouldn't be destroyed. the easement exists for a reason. deal with it.

Hey Sandlers - one more thought. I've got a house floating out in the middle of the ocean that's for sale. Interested?

I have little sympathy for a financial advisor who does not read important financial documents that he signs. When I bought my current home in 1980, I was aware of its attached covenant prohibiting me from ever running a bar or saloon on the property.

How can *anyone* buy a house, the single biggest purchase most people make.... without READING WHAT THEY ARE SIGNING BEFOREHAND?????? That folly is reserved for Hill Critters, isn't it?

A good reminder that even as the law evolves to protect the unsophisticated, there's still a strong "Boo hoo! Buyer beware" sentiment among the populace.

Steve Clowney

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Treatises

A question has popped up that I don't know how to answer;  What are the leading multi-volume real property law treatises? 

Where do you property profs and practicioners turn when you need clarification on the law? 

Steve Clowney

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ALPS: Are you going?

I'm curious to know how many of our readers will be attending the ALPS conference next week.  If you're going, leave a comment, and if you're presenting tell us that too.  I'll be there and will be presenting, and I'm looking forward to meeting you.

Mark A. Edwards

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Conference News: The Struggle for Land

The Newberry Library in Chicago is hosting what looks to be a really excellent symposium on the history and theory of property rights.  The one-day conference, entitled The Struggle for Land: Property, Territory, and Jurisdiction in Early Modern Europe and the Americas, is being organized by Tamar Herzog (Standford) and Richard Ross (Illinois) on April 8, 2011. Here's a synopsis:

The struggle to possess and control land, both as property and as jurisdictional territory, was central to the formation of early modern European societies as well as their colonial domains. This conference will look at how Europeans and indigenous peoples defined the right to land. We will examine how so-called European expansion influenced the conceptualization of property and territorial jurisdiction and the relationship between them. Conference participants may explore how notions of property and territoriality changed over time; and how colonial needs and the encounter with new cultures reshaped these notions.

The three main panel topics are (1) Religion Civility, and Debates over Property Regimes, (2) Strategies for Claiming Land, and (3) Property as a Foundation of Political Order and Political Economy.  

Attendance at the Symposium is free and open to the public.  Participants and attendees should preregister by contacting the Center for Renaissance Studies at the Newberry Library at [email protected].

Steve Clowney

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Dagan's New Book - Property: Values and Institutions

Oxford University Press has just published Hanoch Dagan's new book Property: Values and Institutions.  Here is the publisher's description:

Property: Values and Institutions, by Hanoch Dagan, offers an original understanding of property, different from the dominant voices in the field, yet loyal to the practice of property. It rejects the misleading dominant binarism in which property is either one monistic form, structured around Blackstone's (in)famous formula of sole and despotic dominion, or a formless bundle of rights. Instead, it conceptualizes property as an umbrella for a set of institutions bearing a mutual family resemblance. It resists the prevailing tendency to discuss property through the prism of only one particular value, notably efficiency. Dagan argues that property can, and should, serve a pluralistic set of liberal values. These property values include not only autonomy and utility, which are emphasized by many contemporary scholars, but also labor, personhood, community, and distributive justice.

Dagan claims that property law, at least at its best, tailors different configurations of entitlements to different property institutions, with each such institution designed to match the specific balance between property values best suited to its characteristic social setting. Dagan develops this theoretical account and applies it to key doctrinal contexts. In particular, he analyzes the normative underpinnings of the doctrines regulating the interactions between landowners and governments (both eminent domain and regulatory takings doctrines) and those regulating the governance of property owned by multiple owners (such as co-ownership, marital property, and the law of common interest communities).

I always value Dagan's work, and look forward to reading the book.  For those of you who will be at the upcoming ALPS conference, there will be a session devoted to the book.

Ben Barros

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Can an E-mail Satisfy the Statute of Frauds?

It can in New York, according to the 2010 decision in Naldi v. Grunberg, 80 A.D.3d 1, 908 N.Y.S.2d 639 (N.Y.A.D. 2010). In the opinion, the court wrote that "[W]e would conclude that the terms "writing" and "subscribed" in General Obligations Law §5-703 should now be construed to include, respectively, records of electronic communications and electronic signatures, notwithstanding the limited scope of the 1994 amendment of the general statute of frauds." 

This case concerned a dispute over whether a binding right of first refusal for real property could be created via e-mail.  It is interesting because although the court rejected the argument that the e-mail did not satisfy the statute of frauds, it held that the right of first refusal was not created because there was no meeting of the minds. 

You can find a copy of the opinion here and a recent piece in the New York Times, urging caution when sending e-mails about real estate transactions, here.

Tanya Marsh

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Who Owns Urban Homesteading?

A warning to all you urbanites who raise chickens in your backyard or engage in extreme gardening; Be careful how you refer to your hobbies. 

According to this story from the L.A. Times, Jules Dervaes of Pasadena has recently trademarked the terms "Urban Homesteading" and "Urban Homestead" -- even though the phrases have been in use for decades.  The Times notes, "[Dervaes] recently has been sending out cease-and-desist letters to those using the phrases, including KCRW's radio show "Good Food" (which had used it in a blog post) and the Santa Monica Public Library, which held a free event on the topic. One book has gotten caught up in Dervaes' campaign: "The Urban Homestead" by Kelly Coyne and Erik Knutzen. The authors, who also live here in L.A., published the book in 2008 and maintain a blog with tips and chronicles of their sustainable-living efforts." 

According to a press release, the Dervaeses argue that "while they did not come up with the name Urban Homesteading®, they defined its current, specific application" -- that is, using "many back-to-basics practices, solar energy and biodiesel in order to reduce their footprint on the earth's resources." It seems that a lot of people disagree with the Dervaes take on things. The Electronic Frontier Foundation has stepped in to represent Coyne and Knutzen (see here) and Facebook groups have sprouted opposing the Dervaes' actions (see here).

Whatever the merits of the claims here, you have to wonder about the legal advice that Dervaes received.  Fighting a library?  Raging against farmer's markets when you're supposedly trying to promote sustainable practices?  In the rush to enforce their property rights, the Dervaes may have done incalcuable damage to their reputation, and undermined the goals they've spent years trying to accomplish.

Steve Clowney

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Eagle on Urban Revitalization and Eminent Domain

Steven Eagle (George Mason) has posted a draft of Urban Revitalization and Eminent Domain: Misinterpreting Jane Jacobs (Albany Govt Law Review) on SSRN.  Here's the abstract:

This article reviews the implications for land use policy of Jane Jacobs’ The Death and Life of Great American Cities. Fifty years after its publication in 1961, Death and Life remains a clarion call for resistance to monolithic development and to the reigning paradigm of urban planning in the mid-20th century. The article asserts, however, that government officials and planners have learned the wrong lesson from Jacobs. Their emphasis on the top-down imposition of what purports to be varied development is evident in the growth of condemnation for retransfer for private economic redevelopment. Such policies are directly contrary to Jacobs’ insistence on bottom-up organic development.

The article further describes the muddled state of the U.S. Constitution’s Public Use Clause, evident in Kelo v. City of New London and in state cases such as Goldstein v. New York State Urban Development Corporation. It asserts that judicial unwillingness to provide meaningful scrutiny to condemnation for private redevelopment is based, in part, on acceptance of the revisionist, and incorrect, reading of Jacobs’ work.

Steve Clowney

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Will Access Trump Ownership?

Lisa Gansky, in a short TED talk, argues that the renting of stuff is gradually becoming more important and useful than full ownerhsip:

Steve Clowney

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Nollan & Dolan as Wisconsin's Future?

Like Mark, Ricks Hills over at Prawfs sees the fight in Wisconsin through a property lense.  Hills compares the governor's proposal to limit public sector collective bargaining to Nollan-Dolan's attempt to scale back exactions imposed on developers. He argues that both initiatives fail because they curtail freedom of contract and efficient bargaining:

Governor Walker's proposals to limit scope of bargaining strike me as pointless. The Nollan-Dolan line of cases in land use regulation tells us why. Nollan-Dolan ostensibly limit the power of government officials to demand conditions for land-use development. . . . Of course, as any serious landuse lawyer knows, this doctrine has imposed no serious constraint on what local governments exact from developers. . . . Why? Because such limits on the scope of bargaining are senseless impediments to efficient freedom of contract. Developers do not sue to enforce such Nollan-Dolan limits, because they interfere with a deal that the developer wants to close. [M]y my prediction is that limits on the scope of collective bargaining will be just as pointless, wasteful, and ultimately unenforced as Nollan-Dolan.

I'm not sure that the comparison is on all fours.  First, the ideological nature of union issues makes people act and bargain in less than rational ways.  Second, the wink-wink-nudge-nudge agreements that drive local development work so well because both sides get what they want in a limited time-frame (developers get permits, local government get exactions).  The backdoor/handshake agreements over long term benefits could easily break down as the composition of the legislature changes.  

Hills' solution to this issue, buried at the end of a long post, strikes me as the best part of the piece.  He writes, "Allow unions and government to bargain over [long term benefits like pensions and health plans], but make sure that the ultimate agreement is ratified in a highly salient, public way -- a referendum, for instance. This procedural solution would reduce the real "agency cost" danger that politicians will give away the store when negotiating future liabilities. But the procedural solution avoids the silliness of taking obviously relevant issues off the table."

Steve Clowney

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Collective Bargaining As a Property Rights Issue

There's an interesting thread over at the Faculty Lounge about the Wisconsin battle over collective bargainging rights for public employees.  Professor Calvin Massey opines that collective bargaining by public employee unions should be illegal.  Personally, I think that position is illogical and even dangerous, but perhaps that is because I tend to view most things through the lens of property rights.

I hope it is beyond debate that one has a property right in one's labor (confederate flag raisings notwithstanding).

That being true, it seems to me that advocates of private property rights should be adamant that one has the decision right to alienate, or not alienate, one's property on terms of one's own choosing.  If, for example, I want to sell my house in concert with my neighbors because together we can obtain a higher price, that's my business.  And that's true even if the buyer is the government.  Free market advocates would be outraged if the government told me otherwise, no?

So if we substitute "labor" for "house," why on earth should the result be different?

That's why I believe that opposition to collective bargaining is fundamentally inconsistent with respect for private property rights.  Protecting private property rights means protecting the right of each person to attempt to strike a bargain for the alienation of her labor.  Of course, potential buyers of labor should be free to refuse to purchase until they find a price they are willing to pay; but limiting collective bargaining limits not merely the price a buyer is willing to pay, but also the ability of the seller to bargain for her labor -- her private property. Therefore, limiting collective bargaining means limiting rights in private property.

Yet many of the same people who claim to value private property rights favor eliminating collective bargaining by public employees.  That position is inconsistent at best. 

If I am wrong, please correct me.

Mark A. Edwards

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Planning the World's Newest Nation

Urban Planning is up and running in South Sudan.

Matt Yglesias isn't impressed:

I don’t think you necessarily want too much “planning” of a growing city at all. I’d like to see land used roughly as densely as market conditions warrant. But laying out street grids and such is necessary, and the goal should be to create a large number of relatively small streets—short blocks are good for walking, bicycling, etc. That kind of thing is especially important in poor countries; urban design that privileges the car is very bad for people who can’t afford one.

Steve Clowney

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A Spite Cross?

Carl Behr, a landowner in suburban Pittsburgh, has refused to remove a 24-foot illuminated cross from his property, despite warnings from government officials that the structure violates a number of local ordinances.  Behr claims the cross is "about the Lord" and that those who want it removed stand against God.  Behr's neighbors aren't' so sure.  As Fox News reports, "Lisa Fera, who lives across the street from Behr, has said the cross shines directly into her home and was built after she complained about Behr parking vehicles from his construction business  in front of her residence."  Fera says, "I feel that this is a direct intimidation of me, that each time you call the police or do something, a cross goes up." Someone may want to tell Behr that Jesus said he was the light and the way, not that you need to light up the way...

Steve Clowney

(image used under Creative Commons license)

 

How Skyscrapers Can Save the City

Ed Glaeser, one of the nation's preeminent urban economists, has a new piece in The Atlantic on the importance of encouraging tall buildings:

Besides making cities more affordable and architecturally interesting, tall buildings are greener than sprawl, and they foster social capital and creativity. Yet some urban planners and preservationists seem to have a misplaced fear of heights that yields damaging restrictions on how tall a building can be. From New York to Paris to Mumbai, there’s a powerful case for building up, not out.

Property Profs, especially those with a land use focus, might find Glaeser's acadmic work of interest.

Steve Clowney

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Foreclosure Crisis Update

The number of foreclosures in Minnesota quintupled between 2005 and 2008, according to this report  released by www.Housinglink.org.  And the trend is continuing upwards on an annual basis (although foreclosures dropped in the 4th quarter of 2010).

Foreclosures cause foreclosures, because each foreclosure drives down surrounding property values, pushing more borrowers underwater, and making it more difficult for them to re-finance as adjustable rates adjust and balloon payments become due.  Barring a moratorium, the crisis is unlikely to stop until either (1) some extrinsic factor causes economic growth or (2) homeowners who in the past five years secured short term adjustable rate or balloon payment loans with mortgages are mostly shaken out of the market through foreclosure. 

Assuming, of course -- and it's not a safe assumption by any means -- that lenders, if challenged, can produce the note and establish the right to foreclose.

Mark A. Edwards

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