Tuesday, March 22, 2011

Conference News

The ABA Section of Real Property, Trust and Estate Law will hold its 22nd Annual Spring Symposia on April 28-29, 2011 at the Grand Hyatt in Washington.  Panels that might interest law profs include:

* Origination Changes that are Transforming the Mortgage Industry

* Revisiting Commercial Real Estate Remedies

* Condominium and Resort Rental Management Agreements

* The Current State and Future Development of Natural Gas Production

* Alternative Structures for Real Estate Joint Ventures

* Understand Lease Economics and Tenant Improvements

Here's the brochure (pdf).

Steve Clowney

March 22, 2011 in Conferences | Permalink | Comments (2) | TrackBack (0)

Land Restoration in Colombia

Last night NPR ran a short story on efforts by the Colombian government to return land to farmers that was stolen during the country's violent drug wars.  All in all, officials believe that warlords wrongfully seized over 10,000 sqaure miles of land (an area the size of Maryland). 

Steve Clowney

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March 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, March 21, 2011

Osofsky on Diagonal Federalism and Climate Change

Osofsky Hari Osofsky (Minnesota) has posted Diagonal Federalism and Climate Change: Implications for the Obama Administration (Alabama Law Review) on SSRN.  Here's the abstract:

The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal).

After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for under-standing how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policy-making.

The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, non-govermental organizations, corporations, and government.

Steve Clowney

March 21, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

The Rise of ARMs

The New York Times reports that more borrowers are opting for adjustable rate mortgages:

In the years since the financial crisis, adjustable-rae mortgages, or ARMs, with their low initial interest rates that changed over time, have been considered riskier than fixed-rate loans and shunned by most buyers. But these days more people are being persuaded to give the loans a try.

Mortgage brokers and lenders say the loans most in demand are the “5/1” and “7/1,” in which the initial interest rate is fixed for the first five or seven years — after which many homeowners typically think about selling or refinancing anyway — then adjusted annually at a capped rate toward a maximum level.

Steve Clowney

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March 21, 2011 in Mortgage Crisis | Permalink | Comments (0) | TrackBack (0)

Sunday, March 20, 2011

Brennan on Indigenous Property Rights in Australia

BrennanS Sean Brennan (New South Wales) has posted Statutory Interpretation and Indigenous Property Rights (Public Law Review) on SSRN.  Here's the abstract:

Four recent decisions concerning a) native title and b) statutory land rights confirm that the approach of the High Court to statutory interpretation has become a focal point in defining the relationship between indigenous peoples and the wider Australian community. These recent decisions and the longer-range judicial development of Australian law on Indigenous property rights raise questions about the consistency with which traditional common law principles of interpretation have been applied. After more than three decades of statutory land rights in the Northern Territory, recent developments suggest a perhaps higher than suspected capacity for Australian law and politics to accommodate strong Aboriginal property rights and decision-making power. This raises questions whether the legal containment of native title by judges and politicians in the aftermath of Mabo (No. 2) was an over-reaction to uncertainty and somewhat of a missed opportunity.

Steve Clowney

March 20, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, March 19, 2011

White on Realtor Responsibility for their "Expert" Advice

Brent.white Brent White (Arizona) has posted Trust, Expert Advice, and Realtor Responsibility (Real Estate Law Journal) on SSRN.  Here's the synopsis:

Real estate agents benefit from the trust associated with portraying themselves as real estate experts, yet are generally not legally responsible for the advice that they give. This lack of legal responsibility is at odds with psychological propensity of individuals to trust perceived experts. It also creates a genuine moral hazard, fueled the housing market bubble and contributed to the suffering of homeowners whose real estate agents encouraged them to buy as the market began to burst. In response to this problem, this article proposes a new regulatory regime requiring real estate agents to choose between two paths: (1) accept legal liability when they negligently, recklessly or intentionally make inaccurate or misleading pronouncements about a home’s value or investment potential; or (2) embrace their role as “salespersons” and refrain from offering advice or opinions about the real estate market to their customers.

Steve Clowney

March 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, March 18, 2011

Bucket List: The Property Prof to Have Before You Die


The National Jurist Magazine has complied a list of the 23 law profs to take before you die.  Property Prof Jeremy Blumenthal of Syracuse gets a shout:

Jeremy Blumenthal teaches and writes in the areas of property law and the social sciences, incorporating empirical research and data into legal issues.  Nominated by his peers, Blumenthal's work explores decision-making by judges and juries, paternalism, the reasonable woman standard, victim impact statements, behavioral law and economics, emotions in the legal system, and lay perception of crime.

Congrats to Professor Blumenthal.

Steve Clowney

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March 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Update on Severance v. Patterson

Matt Festa continues to do the knowledge on Severance v. Patterson, an important case on the Texas Open Beaches Act.

Steve Clowney

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March 18, 2011 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Echeverria on the Taking of Private Contracts

Echeverria John Echeverria (Vermont) has posted The Public Takings of Private Contracts (Ecology Law Quarterly) on SSRN.  Here's the abstract:

This article, part of a larger project analyzing how far public and private contracting arrangements can go in constraining democratic decision-making, examines whether the United States should be liable under the Takings Clause of the Fifth Amendment when its actions have the effect of destroying or impairing private contract rights. In the Omnia Commercial case, decided 90 years ago, the Supreme Court ruled that private contract interests represent “property” within the meaning of the Takings Clause, and that the issue of whether such property has been “taken” should be resolved by assessing whether the government has “appropriated” the contract interest (resulting in a taking), or merely “frustrated” it (not resulting in a taking). While Omnia Commercial reflects a sound intuition that private contract interests deserve special treatment under the Takings Clause, the appropriation versus frustration standard has no principled foundation and is irreconcilable with modern takings standards. In place of the Omnia Commercial standard, this article suggests that the Court should adopt a two-part analysis. First, rather than treating all private contract interests as a form of “property,” the Court should only treat the direct contractual commitments between the parties as property; as a result, only when the government inserts itself into the parties’ contractual relations, by taking over the contract benefits of one of the parties, or by transferring the benefits to some new party, has the government impinged on “property” in a fashion that can potentially support a taking claim. Second, the Court should rule that a government action impinging on contract-based property does not result in a taking when the action imposes no net economic loss on the contracting parties, considered together as a single unit; this approach would require the parties to allocate between themselves the burden, if any, a government action has imposed on either one of them. On the other hand, the Court should rule that, when government interference with contract-based property does produce a net loss to the contracting parties, considered as a unit, a finding of a taking generally will be warranted under a traditional appropriation analysis.

Steve Clowney

March 18, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 17, 2011

The Mounting Costs of Foreclosures

The Home Defenders League, a community activist organization in California, released a report this week with the provocative title of “Home Wreckers:  How Wall Street Foreclosures are Devastating Communities.”  You can find the report here

The report concludes that the true cost of foreclosures in California will be $650 billion to $1 trillion.  It estimates a $632 billion to $1 trillion loss in property values; $3.8 billion in lost property tax revenue; and $17.4 billion in foreclosure-related costs to be borne by local government.

I'm working on an op-ed for the Huffington Post regarding the property tax piece.  It is a variation on an argument you've probably heard from me before.  It makes no sense that we are embracing a policy that forces borrowers and lenders (and, by extension, taxing authorities) to internalize temporarily depressed property values, particularly given the long-term costs of doing so.

Tanya Marsh

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March 17, 2011 in Mortgage Crisis | Permalink | Comments (1) | TrackBack (0)

Robust Housing Markets

Tim Zinnecker, blogging at the Faculty Lounge, has drawn attention to Builder Online's ranking of the 20 healthiest housing markets in the country.  Here's the top five:

1.  Raleigh - (NC)

2.  Austin - (TX)

3.  Durham - (NC)

4.  Huntsville - (Alabama)

5.  Gulfport - (Mississippi)

Steve Clowney

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March 17, 2011 in Home and Housing | Permalink | Comments (0) | TrackBack (0)

Rule on Disputes Over Airspace

Rule Troy Rule (Missouri) has posted Airspace in a Green Economy on SSRN.  Here's the abstract:

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.

Steve Clowney

March 17, 2011 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 16, 2011

Honolulu Moves the Homeless

Honolulu's stuggle to balance the needs of its homeless population against the needs of its tourist economy has drawn national attention again.  The Hawaii Community Development Authority has given the 100 homeless residents of Kakaako until 1 pm today to dismantle their tent city.  According to the New York Times:

Neil J. Donovan, the executive director of the National Coalition for the Homeless, said the state was one of many trying to deal with the homeless through ordinances, like the one barring tents, rather than programs to create housing. “That’s just such a short-sighted approach,” Mr. Donovan said. “It’s all about a lack of affordable housing.” In 2009, the coalition named Honolulu the eighth meanest city in the country in its dealing with the homeless. Still, Mr. Donovan said Hawaii’s situation was particularly challenging: on an island with limited land, escalating property values have made affordable housing scarce.

I do think that Honolulu deserves some credit for thinking creatively about this problem.  For example, the city has been using donated tour buses as transitional housing for homeless families.  The tour buses have fewer rules than traditional shelters, yet still provide many of the things that the homeless really need - shelters, showers, and a secure place to keep their stuff.

Homeless 'Tour Buses' House Families In Kakaako - Video - KITV Honolulu.

Steve Clowney

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March 16, 2011 in Home and Housing | Permalink | Comments (2) | TrackBack (0)

Tuesday, March 15, 2011

Watching in Sorrow and Horror

As I suspect many of you have been, I have been riveted watching the disaster in Japan this week.  The horror is so overwhelming, and the sorrow so immense, that it is difficult to think rationally about the long term needs of Japanese society.  Nonetheless, when the catastrophe is finally controlled, there will be some very hard decisions that must be made about property rights. 

I had the good fortune last week to sit on a panel at the ALPS conference with Professor Daniel J. Fitzpatrick from the Australian National University College of Law.  Daniel may be the world's leading expert on post-disaster property rights issues.  He was the primary author of the United Nations Human Settlement Programme's Land and Natural Disasters: Guidance for Practitioners, and worked for the UN in Indonesia following the Boxing Day tsunami, helping to re-establish a land tenure system. 

Post-disaster land issues are both immense and immensely important.  Consider, in addition to the much greater human costs, what has been lost in some instances in the Japanese tsunami: _51634457_011498586-2

  • the very land itself that people claimed ownership of;
  • all records of ownership and debt secured by that property;
  • all boundary markers;
  • all personal property;                                                                       
  • for survivors of those killed, all property intended for inheritance, and all records of the decedents' intent. 

Moreover, the great humanitarian needs of the survivors may mean that simply in order to live, others must occupy and make use of property that is not their own, with no way of defining rights, or even knowing whether any claimant to those rights will ever appear.

These issues aren't just important to the personal lives of the survivors; they can help determine whether a society as a whole can recover from disaster, and how quickly.  In order to have shelter, grow food, and produce economically, many of these issues will have to be addressed quickly.                                                       

In addition, it is important to remember the emotional and psychological costs of lost property.  As we know, property can become bound up with the person, so that the loss of property becomes a loss of part of one's identity.  I tell my students to think of the concept of "the horcrux" from Harry Potter -- sometimes a part of a person's soul enters an object, and when that object is destroyed, the result is devastating for the person.                                

From listening to Daniel last week, I know that in his experience, context is critical in restoring land tenure systems in order to restore lives and avoid conflicts among the survivors.  The Japanese people themselves will have to decide how property rights should be allocated to best aid recovery.  It is another task on the long list of difficult work ahead.

Mark A. Edwards

(picture from BBC website)

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March 15, 2011 | Permalink | Comments (1) | TrackBack (0)

The Rise of the Ethnoburbs

Timothy Egan, writing for the N.Y. Times, traces the increasing importance of the Ethnoburb--an entire city dominated by a non-white ethnic group:

[The Ethnoburbs] are suburban in look, but urban in political, culinary and educational values, attracting immigrants with advanced degrees and ready business skills.

Monterey Park, just to the south of [L.A.], is considered the first suburban Chinatown. And with 61,571 people, it’s much more than a “town.” Now there are eight Asian-dominated ethnoburbs sprawling through a 25-mile stretch of the San Gabriel Valley. Here, you’ll find one of the largest Buddhist temples in the hemisphere, and a string of Boba drink shops, often called the Starbucks of the valley. (Boba is a drink flavored with small tapioca balls.) Ethnoburbs are not limited to California. Bellevue, Washington, long dismissed by Seattle residents across the lake as a series of white bread cul-de-sacs and high-end malls, is now Washington State’s most diverse big city, primarily because Asians make up 27 percent of its 122,363 residents.

Egan argues that the real impact of this geographic shift will come as California goes through the redistricting process.  He writes that ethnoburbs "should mean that Asians and Latinos, the dynamo forces of virtually every fast-growing Western state, will get their seat at the political table, at least in California. And since nearly one in eight members of Congress come from this state, Congress should soon look more like the new America."

Steve Clowney

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March 15, 2011 | Permalink | Comments (1) | TrackBack (0)

Eagle on the Public Use Doctrine

Eagle_steven Steven Eagle (George Mason) has posted Public Use in the Dirigiste Tradition: Private and Public Benefit in an Era of Agglomeration (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

This article analyzes the development of eminent domain law, focusing on the U.S. Supreme Court and the New York Court of Appeals’ approach to the requirement that takings be for “public use.” It asserts that the Supreme Court’s public use doctrine is conceptually incomplete. In applying that doctrine and its own precedents, the Court of Appeals acts in the State’s tradition of dirigisme, and subordinates constitutional protections for private property to centralized development. Its recent Goldstein and Kaur opinions, uncritically supporting development for economic agglomeration, are the culmination of this approach.

The article also discusses implications for public policy arising from condemnation for transfer for private redevelopment, as hastened by government efforts to stimulate agglomeration. These include a lack of transparency, secondary rent seeking, possibilities of corruption resulting from of crony capitalism, and the inefficient use of public and private recourses.

Steve Clowney

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March 15, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 14, 2011

Salkin on Backyard Chickens

I am a big fan of backyard chickens (conceptually -- I don't actually own any chickens.  yet.)  So I was pleased to see Patricia Salkin's (Albany) posting to SSRN entitled "Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens."  It is short, so I'm planning to distribute it to my students when we begin talking about zoning.  Here's the abstract:

As the local and regional food shed movement and the urban agriculture movement continue to grow, uses once considered only found on the rural farm are now finding their ways into urban and suburban communities. As a result, municipalities across the country are now facing the challenge of regulating the keeping of chickens in residential districts. From nuisance law to zoning regulations addressing the number of hens that may be kept on parcels, whether roosters are allowed, the size and location of coops and other issues, this article reviews the rapidly developing trends in this area of land use law.

Tanya Marsh
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March 14, 2011 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

A Delightful Video of Found Property

I suppose you could use this video to illustrate the difficulty of identifying lost, mislaid, and abandoned property.  But, in reality, I'm posting this because it gives me warm and fuzzy feelings all over:


The charming follow-up is here. And the satisfying conclusion is here.

Steve Clowney

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March 14, 2011 in Finding | Permalink | Comments (1) | TrackBack (0)

Lee on the Aftermath of Kelo

Patricia Hureston Lee (West Virginia) has posted In the Aftermath of Kelo v. New LLeeondon, a Resurrection  in Norwood: One Public Interest Attorney's View (Western New England Law Review) on SSRN.  Here's the abstract:

Three months before residents of New London, Connecticut, went to court in Kelo v. City of New London, I recall reading a side note about a family distraught in a different town. The family-friendly restaurant named Orlissie's, located in Oak Park, Illinois, had succumbed to the threat of eminent domain. The unfortunate news of a restaurant closing was more common, partly because of the continued and disturbing increase in the number of eminent-domain acquisitions occurring across the country.

As a public-interest attorney employed by one of the leading defenders of entrepreneurs, small businesses, and homeowners, and as former corporate counsel to a multinational corporation, I knew that this would not be the last time a business or homeowner would lose his or her property because of eminent domain. At the same time, I believed that this was yet another horrific example of a business owner losing the battle over developing property to run a business, in the manner and in the location he or she chose.

Property owners, in dilemmas similar to that of the Oak Park business owner, are not typically in a position to successfully defend the taking of their private property. The cause is as much a function of the property owner's financial and political wherewithal to challenge even the threat of eminent domain, as it is the contemporary presumption that eminent domain is, overall, beneficial.

Steve Clowney

March 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 13, 2011

Rodwin on the Trouble with Patient Data as Private Property


Marc Rodwin (Suffolk) has posted Patient Data: Property, Privacy, and the Public Interest (American Journal of Law and Medicine) on SSRN.  Here's the abstract:

In this article, I argue that treating patient data as private property precludes forming comprehensive databases required for many of its most important public health and safety uses. Private ownership will also allow data monopolies that will increase the price of data and limit competition in the market for derived services. I propose that federal law require providers, medical facilities and insurers to report key patient data in anonymized and de-identified form to public authorities, which will create aggregate databases to promote public health, patient safety, and research. Public authorities should also make this data available for private entities to develop data-derived services, subject to public oversight. As we shall see, there is precedent for federal and state governments requiring reporting of data.

Steve Clowney

March 13, 2011 | Permalink | Comments (0) | TrackBack (0)