PropertyProf Blog

An Opportunity for Junior Property Profs

The clock is running out on a unique and valuable opportunity for junior property professors  -- participation in the American Bar Association Real Property Trust, and Estate Law Fellows Program.  The application deadline is June 17, 2011.  (Sorry for the late notice.)

I was an ABA-RPTE Fellow about five years ago, and it was one of the most valuable professional experiences I've had.  It is literally the fast-track to leadership in the section, which can be valuable to junior Property Profs for a number of reasons.

1.  If you never practiced in real estate prior to joining the academy (or practiced briefly), the twice-annual ABA-RPTE leadership meetings (paid for by the ABA during the Fellowship!) are an incredible opportunity to meet senior practitioners and gain ideas, tips, and forms. (Note:  after the two-year fellowship is completed, you should, if you met expectations, etc., be appointed to a leadership post in the section.  I am a vice-chair of a substantive committee.)

2.  If you did practice real estate prior to joining the academy, the ABA-RPTE leadership meetings are a great way to stay on top of changing conditions in real estate practice, and to incorporate those new lessons learned into the classroom.

3.  ABA-RPTE section leadership includes several noted property profs.  So if you go to the leadership meetings, you get to hang out with and get to know experienced and generous property profs.  (Who will read and comment on your articles if you ask nicely!)

4.  You get great, random opportunities.  At the fall leadership meeting last fall, I happened to attend the breakfast meeting of the Uniform Laws Committee.  I walked out of the meeting with an assignment to do some research on a particular topic, which is the focus of an article that I'm writing this summer and a report that I'm presenting to the Joint Editorial Board at NCCUSL later this year. 

5.  You get opportunities to present your research.  At the recent Spring Symposium in Washington, D.C. (which doubles as the spring leadership meeting), I co-presented a CLE on "Rethinking Real Estate Remedies in Troubling Times."  This was an adaptation of an article that I published in the Nebraska Law Review last summer on the uniqueness doctrine, tweaked for an audience of transactional real estate attorneys.  I presented with a current litigator and we had 65 people in the audience, literally standing room only for 90 minutes.  Not only was that presentation good PR for my scholarship, but it was a well-received CLE that actually said something useful and practical.  In a few months, we are going to offer the same program as an eCLE, which will be advertised broadly throughout the ABA. 

So, education, networking, opportunities to share your scholarship.  What else do you need?

The application materials can be found here.  Please feel free to e-mail me directly if you have any questions about the program!

Tanya Marsh

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A Biblical NIMBY

Johan Huibers, a successful construction magnate in the Netherlands, has spent the last few years building a replica of Noah's Ark.  Unlike Noah, Mr. Huibers has run into all kinds of trouble with the Dutch fire code and a handful of complaining neighbors:

Mr. Huibers had to conform to Dutch fire safety standards. To do so, he installed a special anchor that qualifies the 2,970-ton ark as a building, rather than a vessel. Moreover, he will have to paint the ark, inside and out, with three coats of fire-retardant varnish. (Noah covered his ark with pitch, making it waterproof but hardly fire retardant.)

And then there are the neighbors.

“The ship takes away our view,” complained Gerrit Kruythoff, 65, who has lived with his wife and family for 42 years in the trim brick row house next to the disused shipyard where Mr. Huibers is toiling, with the help of two of his three children and a handful of friends.

Steve Clowney

(image pulled from www.thefunctionality.com with creative commons search)

Reiss on the Goals of Federal Housing Policy

David Reiss (Brooklyn) has posted Foundations of Federal Housing Policy (book chapter) on SSRN.  Here's the abstract:

Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."

Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.

Steve Clowney

Back in the former CSSR

I'm back in the Czech Republic, teaching comparative property rights to American law students at Charles University in Prague. 

On the way here I had the opportunity to stroll through the Old Town area of Warsaw (strategic layovers are my plan to see the world).  Warsaw was essentially completely destroyed between 1943 and 1945, particularly following the Home Army uprising of 1944 against Nazi rule.  Thus the Old Town I strolled through was, in many ways, not so old: it looked old, but that's because the buildings had been rebuilt to look exactly as they were.  The same is true of many old sections of Berlin.

Knowing that left me with a lingering and disturbing sense that it wasn't "real," but I'm not sure I can justify that feeling.  After all, if each building had, at different times, been rebuilt because it was becoming dilapidated, I certainly wouldn't think the area wasn't "real."  The White House was rebuilt after an invading army burned it to the ground, but no one I know walks through it thinking it's just a replica.  People live and work in those buildings.  So why couldn't I shake the feeling that it was a trip through the architectural equivalent of Madame Tussaud's?

It strikes me that in ways that are difficult to describe, some buildings, and some places, seem to have properties we associate with a living being.  Perhaps the lives they were imbued with became part of them.  Perhaps they have, some how, independent lives of their own.  Perhaps it has something to do with the violence with which they were destroyed.  But whatever the reason, at a gut level, walking through Warsaw, I had an eerie, 'invasion of the body-snatchers' sense that the beautiful buildings around me were -- in both a literal and figurative sense -- a facade.

As my poor attempts a photography below show, the beauty of the place isn't diminished at all by the buildings having been rebuilt.  Only my sense of ease was, and only because there is something unique and mysterious about property, that is beyond my attempts to define it, that gives it a sense of life.  

  

 

 

 

 

 

 

 

 

 

 

Mark A. Edwards

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Memorial Day: The Normandy American Cemetery

 

In honor of Memorial Day and the brave men and women who fight in our name, I thought I'd post a little about one PropertyProfs favorite topics: cemeteries.  The picture above comes from The Normandy American Cemetery in Colleville-sur-Mer, France.  In addition to Normandy, there are four other cemeteries in France that contain the graves of American soldiers who fought in WWII - Rhone, Lorraine, Epinal, and Brittany. 

Of interest from a property standpoint, these ceremonies are technically American soil. France has granted the United States a perpetual concession to the land, free of any charge or any tax. The Normandy cemetery is currently managed by the American Battle Monuments Commission, an agency of the Executive Branch of the Federal Government.  The Commission is the guardian of all America’s overseas commemorative cemeteries and memorials.  It manages sites in Papua New Guinea, the Solomon Islands, France, the Philippines, Belgium, Gibraltar, Mariana Islands, Cuba, Morocco, Panama, Tunisia, Mexico, Italy, Netherlands, England, and Luxembourg.  

Steve Clowney

Battle Over the President's Body

Picking up on Tanya's excellent post about disinterring Leather Man, here's a short story about a fight over the body of Carlos Andrés Pérez, the former president of Venezuela. 

The facts are quite Jerry Springer-esque.  In 1948, President Pérez married his first cousin, Blanca Rodríguez.  Then, in 1966 he began an intimate relationship with another woman, Cecilia Matos.  Hoping to end his marriage, President Pérez initiated divorce proceedings against Rodríguez.  She contested them, and a Venezuelan court refused to end the marriage.  Pérez then changed tactics.  In 1999, he moved with Matos to Miami, where he died last December.

The legal problem is that both Matos and Rodríguez want control over Pérez's burial.  Specifically, Rodríguez hopes to return Pérez's body to Venezuela, while Matos wants to bury him in Miami.  Florida law gives the surviving spouse priority in choosing where to bury the deceased. In this case, that's Rodríguez, who was still married to the ex-president at his death, even though she hadn't him since he left Venezuela in 1999.  However, the law also states that if the deceased's intent can be established by clear and convincing evidence, it can outweigh a spouse's wishes.

If I was betting on this case, I'd put my money on Pérez staying in Miami.  First, Matos claims she and Pérez purchased side-by-side burial plots.  If true, that seems like pretty solid evidence of his intent. Second, there's a political sub-plot here.  Hugo Chavez, the current president of Venezuela, appears to bear a pretty serious grudge against Pérez.  I doubt a judge in the U.S. will want to give Chavez the opportunity to use Pérez's burial as some kind of political stunt.

Steve Clowney

 

Friday's Architecture Moment: The Book Igloo

A little bedroom made of books:

If you’re a bibliophile like me, you may have fallen asleep amidst a pile of your favorite books as a youngster too. I would have loved nestling into the Uroko House book igloo with all of my treasured fairy tales. Dreamed up by Point Architects, the cozy enclosure that surrounds a child’s bed is also a storage-filled bookshelf. Now your little ones can nod off to dreamland surrounded by their beloved bedtime stories.

Steve Clowney

Blasi on Tax Benefits in Leasing Transactions

Ronald Blasi (Georgia State) has posted Electing Tax Benefits in Leasing Transactions (Daily Tax Report) on SSRN.  Here's the abstract:

This article recommends allowing a lessor and a lessee to decide between themselves which party will be entitled to the tax benefit associated with the ownership of the leased property. It describes why the current linkage of tax benefits to property ownership is economically inefficient and disadvantageous to the parties and to the economy as a whole. Existing law diminishes the intended effect of tax incentive legislation, reduces a firm’s cash flow and reported earnings, distorts competition and decision making, and inhibits investment in efficient business assets. The proposed election addresses these shortcomings, while not violating anti-avoidance tenets of taxation.

Steve Clowney

 

NPR on the Origins of the Financial Meltdown

On Tuesday, Fresh Air did a program on the collapse of mortgage market that may be of interest to Property Profs.

Dave Davies interviewed Gretchen Morgenson, who writes about financial markets for the New York Times, on her new book, Reckless Endangerment: How Outsized Ambition, Greed and Corruption Led to Economic Armageddon. Morgenson and her co-author chronicle:

the failure of regulators to control greed and recklessness on Wall Street.  And it focuses particular attention on the managers of Fannie Mae, the government supported mortgage giant. Morgan writes that CEo James Johnson built Fannie Mae into the largest and most powerful finacnial institution in the world. Morgenson details how the company fudges accounting rules, generated big salaries and bonuses for its executives, used lobbying and campaign contributions to influence Congress, and encouraged the risky financial practices that led to the crises.

Steve Clowney

Somin on the Judicial Reaction to Kelo

Ilya Somin (George Mason) has posted The Judicial Reaction to Kelo (Albany Govt Law Review) on SSRN.  Here's the abstract:

Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.

Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.

Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.

Steve Clowney

Disinterring Leather Man

A fascinating story from Ossining, New York caught by eye this morning in the New York Times.  Local history buffs from New York and Connecticut (and fans of Pearl Jam) may already be aware that back in the 1860s-1880s, a man known only as “Leather Man”  walked a 365 mile circuit through at least 41 small towns on a 34-day cycle.  Apparently he was so compulsively prompt on this tour that you could set your calendar by him.  Leather Man was a source of fascination during his lifetime.  Apparently “thousands” of articles about him appeared in local newspapers 
at the time, documenting his travels.  He never spoke, lived in lean-to’s or caves, and wore a 60-pound suit of clothing made from discarded boots (thus, his name).

Leather Man died in 1889 in one of his regular shelters near Ossining, New York.  He was buried in the pauper section of Sparta Cemetery at government expense, without a tombstone.  In 1953, a bronze plaque was added to the fieldstone marking his grave.  It identifies him as “Jules Bourglay,” a native of Lyon, France.  But researchers say that there is no more reason to believe this origin story than dozens of others.  Leather Man is a mystery.  His grave, situated along busy Route 9, is a stop on dozens of local tours.  The elderly and school children, along with curious individuals, visit his grave often. 

[More after the jump]

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The Tragedy of Zoning

Old Urbanist has a post arguing that zoning -- which proponents argued would preserve property values -- has done just the opposite:

The new residents of the apartment building may sometimes be of lower economic status, on average, than the individual owner of the home that was replaced, but collectively, the economic productivity of the land (in the form of rental income and/or property taxes) has dramatically increased. Homeowners may object to the presence of the new building, or possibly the presence of its residents, but they are nonetheless the beneficiaries of the increased land values should they decide to sell.

I think there's some truth to this argument, but I'm not sure that the author fully considers how profoundly land use regulations limit the supply of housing, and thus drive up prices.

Steve Clowney

 

LaCroix on the Unresolved Issues Surrounding Municipal Use of Green Policies

Catherine LaCroix (Case Western) has posted Urban Green Uses: The New Renewal (Planning and Environmental Law) on SSRN:

As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability of land banks for cleanup of contaminated properties? Are cities required to provide municipal services to unpopulated areas within their boundaries? In the unlikely event that a city uses eminent domain to relocate owners of sparsely-populated areas, what is “just compensation” for this action? What issues might arise with zoning land for less intensive uses such as urban farms? Some of the answers are emerging. For example, state authorizing legislation has been enacted to establish the type of active land bank successfully implemented in St. Louis, Cleveland, and other cities, and it appears that cities need not provide infrastructure and services throughout their land area, though they are best advised retain any rights of way or easements that may be needed in the event of future development. Other questions – both legal and practical - have yet to be fully answered, as rust belt cities lead the way in what might tentatively be called "The New Renewal" – a form of sustainable development that dovetails well with the policies of cities that seek to combat and adapt to climate change.

Steve Clowney

Map of the Day: Bad City Slogans

Rupal Parekh blasts Buffalo's new slogan

Tourism slogans are reliably corny, but last week New York state took the grand prize for "Huh?" with a newly anointed slogan for its fair city to the north that's best known for its proximity to Niagara Falls and everyone's favorite 25-cent bar snack. It came up with this: "Buffalo. For Real." (And sadly, yes, that's for real).

Here are some other whoppers:

 

View City Slogans in a larger map

Steve Clowney

(hat tip: The Daily Dish)

A Landlord at the Door

The LA Times on when a landlord can access a tenant's apartment.

Steve Clowney

Spillway Takings Claims

Commentator Jeff gives an update:

Notwithstanding the existence of flowage easements on the affected properties, there is still a fair chance that the owners of the land flooded by the opening of the Morganza Spillway will file a takings suit against the government. The owners of the Missouri farmland flooded when the Corps breached the Birds Point levee near Cairo, IL a couple of weeks ago have already filed a takings suit in the U.S. Court of Federal Claims (Case No. 11-275), even though those properties are also located in a floodway and are subject to flowage easements.

Steve Clowney

Tyson's Tattoo, Ctd.

This weekend, The New York Times did a big story on the controversy over the Mike Tyson-ish tattoo that appears in the new Hangover movie (our original post here).  In an extremely cool move, the Times also links to the artist's complaint and the Warner Bros response.

Steve Clowney

Singer on Property Regulations as Lynchpin of Democracy

Joseph Singer (Harvard) has posted Property Law as the Infrastructure of Democracy on SSRN.  Here's the abstract:

It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.

Steve Clowney

Not Constantinople

From the Atlantic:

Istanbul is one of the world's great cities with a population of 15 million spread out over 700 square miles of land. While that's no Los Angeles-level of sprawl (L.A.'s metro area is pegged at 4,800 square miles), the Turkish city has been growing and spreading rapidly over the past few decades. The city has tripled in area over the last 35 years.  In this false color satellite image taken by the German space agency, the DLR, the yellow areas reflect human buildings.

Steve Clowney

Merrill on Waste and Melms v. Pabst Brewing Co.

The most recent issue of Marquette's alumni magazine has a fascinating article by Tom Merrill (Columbia) on Melms v. Pabst Brewing Co. and the doctrine of waste.  A must read for anyone who teaches the first-year property course.

Ben Barros

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