PropertyProf Blog

Breaking News in Cemeteries

I've read three, count them, three articles about cemeteries in recent days.  And who said that this isn't cutting edge stuff?

1.  The national cemetery in Houston, apparently one of the nation's busiest, is the subject of a lawsuit filed against the Department of Veterans Affairs by local veterans groups.  The problem is the enforcement of a 2007 policy "that prohibits volunteer honor guards from reading recitations — including religious ones — in their funeral rituals, unless families specifically request them."  The local veterans groups want to continue to use a VFW script that dates to WWI and "refers to the deceased as 'a brave man' with an 'abiding faith in God' and that seeks comfort from an 'almighty and merciful God.'”

According to the NYT article:

Department of Veterans Affairs officials say that the original policy, enacted under President George W. Bush, resulted from complaints about religious words or icons being inserted unrequested into veterans’ funerals. They noted that active-duty military honor guards, including the teams that do funerals at Arlington National Cemetery, say almost nothing during their ceremonies.

“We do what the families wish,” said Steve L. Muro, the under secretary for memorial affairs. “I always tell my employees we have just one chance to get it right.”

The Liberty Institute is supporting the litigation, and has a website dedicated to the controversy.  You can check it out here.

2.  Scientists have been studying teeth and bone fragments excavated from the East Smithfield cemetery in London.  The cemetery, across the street from the Tower of London, is the final resting place of thousands of victims of the plague which struck England in 1348.  Scientists have been trying to resequence the DNA of the Black Death to determine if it is the same agent that causes bubonic plague today.  The microbe Yersinia pestis was found in the East Smithfield cemetery, but not in the St. Nicholas Shambles cemetery, which was closed before the Black Death struck, providing evidence that the microbe was not in England prior to the plague, but brought from somewhere else. 

3.   Members of the Army's Old Guard have been photographing each of the 219,000 tombstones and 43,000 columbarium markers in Arlington National Cemetery.  Congress mandated that the cemetery account for all of its graves, so the photographs are being taken and compared to other data, such as maps and burial cards.  The best part of the story is that military officials hope to use the data to create an online database for the public. 

Tanya Marsh

Where is "The South?"

Tanya's cool post on ancestry in the U.S. got me thinking that you could create a pretty good map of "the South" by looking at the percentage of people who claim "American" ancestry.  Based on my experience, that map would be just a little over-inclusive;  Northern Kentucky, Central West Virginia, and the panhandle of Texas aren't truly southern places. 

From there, I wondered if there were any other maps that better tracked the borders of the "South."  Here are a few contenders:

1.  Map of states that joined the Confederacy:  Both under and over inclusive.  South Florida isn't cultural southern and parts of Kentucky certainly are.

2.  Map of places below the Mason-Dixon line:  Obviously over inclusive.  Sweeps up many places, like Washington D.C. that aren't truly southern.

3.  Map of places where Baptists make up more than 10% of the population:  Not bad, but I don't think northern Missouri or eastern Arizona are culturally part of the South.

4.  Map of kudzu's range.  Shockingly good.  Aside from the issue of lower Florida, Kudzu has the south nailed.

5.  Map of where McDonald's sells Sweet Tea:

We have a winner.  It's sweet tea that stakes the borders of the South.

Steve Clowney

Land Banking and Demolition in Cleveland

NPR does a little story on how land banks in Cuyahoga county have gotten big banks to pay for the demolition of crumbling houses across the Cleveland area:

Lenders stuck with crumbling houses found themselves on the hook in the Cleveland Housing Court for hundreds of thousands of dollars worth of code violations.

The Cuyahoga County Land Bank, a quasi-government corporation, offered lenders a deal: We'll take your worst houses, if you pay to knock them down. This year, Fannie Mae and some of the country's biggest lenders — including Bank of America, Citibank and Wells Fargo — will help pay for half of the land bank's 700 scheduled demolitions.

Lenders pay $3,500 to $7,500 per house. Wells Fargo's Russ Cross says it's a sensible and responsible business plan.

The real difficulty, as the story points out, is that nobody knows what to do with the vacant lots after the buildings have been destroyed.  There's only so much demand for yet another urban garden.

Steve Clowney

When $625,500 Doesn't Cut It

The New York Times explores how new limits on federally guaranteed mortgages will have a disparate impact on the housing market in big cities:

On Oct. 1, when the limit on federally guaranteed loans drops to $625,500 from the current level of $729,750, hundreds of buyers in the city and nearby suburbs will either have to come up with larger down payments to stay under the new limit or face the prospect of applying for jumbo loans — anything above $625,500 — which have higher interest rates.   . . .  “Across the country this is not a big deal,” said David Maundrell, the president of aptsandlofts.com “but in New York, because our prices are where they are, it’s going to be an issue.”

Steve Clowney

A Landlord's Letter to Her Tenants

Jodie Allen writes a handful of sarcastic notes to the anonymous every-tenant, explaining how to properly care for her property.

Steve Clowney

Map of the U.S. by Ancestry

I ran across this fascinating map of the United States, which uses 2000 census data to depict the dominant group, by ancestry, in each American county.  There are a lot of interesting trends which the map reveals.  Who knew that the Germans dominated so much of the United States?  What's up with all the English in Utah?  Can you believe so many counties have dominant French/Finnish/Norweigian/Dutch populations?

Here is a small version of the map.  Click the link above for a much larger version, which allows a county-by-county comparison.

One of the most interesting things to me is the number and location of the counties which self-identified their ancestry as "Americans" (indicated by the cream or light yellow).  Not "Native Americans," mind you, but "Americans."  To a question asking about "ancestry," this is a strange answer coming from people whose origins were obviously in Europe.  To answer "American" suggests either that their knowledge of their ethnic origins is lost, or their current identification as "American" is so strong that it makes it impossible for them to answer the question accurately. 

These counties are largely located in Appalachia and the South.  With the exception of New England (and, obviously, the Native Americans), the residents of the counties which identify as "Americans" have generally been in North America longer than people in most other parts of the country.  But in New England, the counties are clearly identified as English, Irish, Italian, or French.  Why the difference?  My theory is that New England includes large blocks of people who have been here several centuries and more recent (100+ years) Irish and Italian arrivals.  Because they have been in the same place for a long time, or because their ancestors arrived more recently, they have a stronger ethnic identity.  But the people of Appalachia did not emigrate directly from Europe to, say, Kentucky.  They started in eastern Virginia, or New Jersey, or wherever, and then worked their way west.  They may have been in the lower Midwest or South since the early 1800s, but the longer migration disassociated them from their European origins.  They are likely largely ethnically English (or, in places, Scots-Irish), but no longer see themselves as anything other than American. 

I think that this map is also interesting because it demonstrates that while we are all Americans, there are signficiant ethnic differences between the states and regions of the country that inform our attitudes towards government, etc.  It would be interesting to match up this map with the counties which voted Republican or Democrat in the last presidential election.

Tanya Marsh

Urban Renewal Lives: London Edition

 

I am an Olympic maniac.  I love everything about the Games, both winter and summer versions (this is, surely, the most extraordinary thing a human body has ever done).  Thus, it's terribly exciting to see an emerging property story coming out of London's preparations for the 2012 Olympiad.  For those who don't obssess over Olympic news, London is using the Games as an excuse to undertake a major urban redevelopment project in the East End.  For 200 years, the eastern frontier of the city has been home to gnarly scenes of human deprivation and poverty; it's Jack the Ripper territory.  To remake the area, the government has knocked down a lot of bad neighborhoods, laid new roads, built new parks, and will convert the athletes' village into government-funded housing.  The city has also promised new schools, medical facilities, and shopping.  

It will be enlightening to see how this all plays out over the next 10 years.  Will London be able to avoid the mistakes that plagued American renewal efforts in the mid-twentieth century?  Right now, I'd say the odds don't look great. As a general rule, Olympic hosts have done a dreadful job leveraging the Games into long-term prosperity.  Moreover, rather than just focusing on infrastructure improvements, the city seems to have gotten itself mixed up in the much finer-grain planning of housing and retail - things that city governments traditionally don't know much about.  The biggest question, perhaps, is what happens to all of the costly athletic facilities and sports structures after the games.  This has been a huge problem in Athens and Beijing:

Steve Clowney 

Craig on Takings and Water Rights

Robin Craig (Florida State) has posted Defining Riparian Rights as 'Property' Through Takings Litigation: Is There a Property Right to Environmental Quality? (Environmental Law Journal) on SSRN.  Here's the abstract:

The U.S. Constitution’s prohibitions on governments taking private property without compensation have always operated most clearly in the context of real property. In contrast, arguments that these takings restrictions should apply to water and water rights throw courts for a loop. A fundamental problem for takings decisions in the water rights context is the fact that both the status of water rights as property and the defining elements of any property rights that exist are contested.

This Article argues that takings litigation can become a productive occasion for defining the status and nature of water rights, especially, increasingly, in the riparianism context. It first provides a quick review of basic takings jurisprudence, emphasizing how the constitutional prohibitions on government takings apply to property use rights, such as easements. It then examines the potential for takings litigation to help define the nature of water rights in general, focusing on relatively recent litigation involving water rights connected with cattle grazing. The Article ends by discussing a series of cases involving riparian water rights and claims that those rights entitle the owners to certain basic environmental quality standards, especially with respect to water quality. It concludes that takings jurisprudence in the riparian rights context may yet align private property rights and environmental protection, providing a more focused - and potentially more predictable/less balancing - private cause of action than nuisance for certain kinds of environmental degradation.

Steve Clowney

Eric Fischer creates very cool maps

The Washington Post had an article yesterday about my high school friend Eric Fischer (I went to high school with some very cool people).  Eric creates graphical maps using a wide variety of data -- census data, tweets, photos posted on Flickr.  You can visit his Flickr account to see some of the maps he has created, which have a lot to say about the patterns of human behavior, and thus relate directly to land use and other things we property profs care a lot about. 

Eric also uses a lot of data created by social media.  Here's one cool one -- Eric mapped the East Coast tweets that occurred right before and after the earthquake earlier this week.  Grey dots represent non-earthquake related tweets, and green dots represent earthquake-related tweets.  Each frame represents one second.

 

Come on -- that's just super cool!

Tanya Marsh

Practical Law

At the SEALS conference a few weeks ago, I was introduced to a great, free resource for law professors and law students:  Practical Law (http://us.practicallaw.com).   Designed as a paid, subscription service for law firms and libraries, those of us in law schools can get free access. 

Click on a practice area of interest to access an organized list of practice notes, form documents, clauses, checklists, and articles.  Materials about corporate & securities, employee benefits, finance, and labor & employment are well developed. Of interest to those of us who teach property and real estate courses is the “real estate” practice section.  There are some good practice notes on commercial real estate, including workouts, REITs, mezzanine financing, and international real estate.  The form documents (with notes) available to date mostly concern office leasing.

The real estate section is still under development, but this is a resource that I plan to keep an eye on as it becomes more robust. 

Tanya Marsh

Friday's Architecture Moment

Witold Rybczynski explains the enduring appeal of Fallingwater through a series of slides:

Fallingwater is a house of theatrical effects, but one of its charms is that there is no backstage. Whether you are on the stair going down to the water, sitting on one of the six outdoor terraces, or walking along the driveway (left), the house is integrated with its woodland setting. The three massive beams sitting on—or is it in?—the moss-covered boulder, support the terrace that leads off Edgar Kaufmann’s bedroom.

Steve Clowney

 

Obama Administration Considering Plan to Encourage Mortgage Refinancing

Yesterday the New York Times reported that the Obama administration is considering a plan that would “allow millions of homeowners with government-backed mortgages to refinance them at today’s lower interest rates, about 4 percent.”  If it gets the green light, the plan could save homeowners $85 billion a year and inject some needed stimulus into a sluggish economy.  Matt Yglesias argues that the scheme makes a lot of sense.  Ezra Klein does some digging and explains why the scheme is unlikely to work.  

Steve Clowney

Hirokawa on the "Change or Mistake Rule" in Local Zoning Decisions

Keith Hirokawa (Albany) has posted Making Sense of a 'Clear Misunderstanding of the Planning Process': Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule on SSRN.  Here's the abstract:

In some states, zoning is marked by the persistence of the so-called “change or mistake rule." In contrast to the traditional deference afforded to local zoning decisions, this rule limits the freedom of local governments to make site-specific zoning amendments by burdening the applicant to justify the rezone with evidence of a mistake or a substantial change in circumstances since the initial zoning designation was adopted. Despite being chastised in the courts and labeled in legal literature as a “clear misunderstanding of the planning process,” the rule has endured for over a half a century. This article explores the criticisms of and justifications for the change or mistake rule in order to identify the understanding that supports its continued application. Specifically, this article argues that the change or mistake rule was intended as a mediator between two fundamental purposes of zoning - maintaining communities that have sufficient flexibility to implement a new community vision, while providing stability and certainty as a planning device.

Steve Clowney

Harvard University Press & Property

Daniel Solove highlights a few new releases from Harvard University Press that should be of interest to Property Profs:

1.  Stuart Banner, American Property: A History of How, Why, and What We Own.  Banner examines the history of property in the United States and concludes that "property exists to serve a broad set of purposes, constantly in flux, that render the idea of property itself inconstant. Despite our ideals of ownership, property has always been a means toward other ends. What property signifies and what property is, we come to see, has consistently changed to match the world we want to acquire."

2. Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law.  Epstein aruges that we urgently need a smaller federal government.  He "bases his classical liberalism on the twin pillars of the rule of law and of private contracts and property rights—an overarching structure that allows private property to keep its form regardless of changes in population, tastes, technology, and wealth."

3.  Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age.  Hartog tells the story of how the elderly used promises of inheritance to keep children at their side and ensure their care.

Steve Clowney

Hirsch on the Uniform Disclaimer of Property Interests Act

Adam Hirsch (Florida State) has posted The Code Breakers: How States are Modifying UDPIA (Real Property, Trust and Estate Law Journal).  Here's the abstract:

The Uniform Disclaimer of Property Interests Act, covering disclaimers of inheritances, has been widely adopted but also widely modified. Almost all of the adopting states have tinkered with the Act in various, and varying, ways. This article sketches out and critiques these modifications, assessing whether each contributes to the quality of this Uniform Act, and explaining the nature of the contribution. The article also weighs in on the larger debate over whether individual states should indulge in the exercise of second-guessing the drafters of Uniform Acts in the trusts-and-estates field, or whether the greater good is to maintain uniformity and wait for the Uniform Law Commissioners to amend their own products. The experience of UDPIA bears on this issue of legislative process.

Steve Clowney

Gifts of Real Property & Taxes

A lucid explanation of the tax consequences of making inter vivos gifts of real property.

Steve Clowney

Iacoviello on Housing Wealth and Consumption

Matteo Iacoviello (Boston College - Econ) has posted Housing Wealth and Consumption on SSRN.  Here's the abstract:

Housing wealth is about one half of household net worth, and consumption is a considerable fraction (about two thirds) of Gross Domestic Product in the United States. Empirically, movements in housing wealth are associated with movements in consumption in the same direction. This observation has led many economists, commentators and policy makers to study how housing wealth and consumption are linked together. A sizable portion of the comovement between housing wealth and consumption reflects common factors driving both variables, rather than the "wealth effect" of the former on the latter; however, a growing body of evidence suggests that the comovement is larger in developed financial markets and in the presence of liquidity constraints.

Steve Clowney

Cul-de-sacs 101

 

Here's a podcast that explains everything you ever wanted to know about cul-de-sacs. 

Steve Clowney

America's Best Places to Live

CNN-Money's list of the top 20 places to live in America.  The goal:

Find the best combination of job opportunities, fiscal strength, top-notch schools, safe streets, good healthcare, cultural and outdoor activities, even nice weather.

Steve Clowney

Nichols on the Federal Protecting Tenants at Foreclosure Act

Elan Nichols (Michigan State) has posted Unanswered Questions Under the PTFA: Exploring the Extent of Tenant Protections in Foreclosed Properties (Journal of Affordable Housing) on SSRN.  Here's the abstract:

The somewhat new Federal Protecting Tenants at Foreclosure Act (the “PTFA”), as recently amended, still leaves many questions of interpretation in states with the foreclosure by advertisement process, and in states with laws related to issues on which the PTFA is silent. The PTFA is vague in places, and does not address certain issues raised by the foreclosure processes in certain states, where state law is not clearly preempted.

This article will examine how the PTFA, including the recent amendments and any recent judicial and advisory opinions, applies in states with the foreclosure by advertisement process (as opposed to judicial foreclosure). The article will use Michigan as a case study for this inquiry, briefly discussing other states with a similar process. In so doing, the article will discuss issues raised in these states concerning matters on which the PTFA’s terms are vague or wholly silent.

To that end, this article picks up where the article, “Interpreting the Protecting Tenants at Foreclosure Act of 2009,” 19 J. of Affordable Housing & Community Dev Law 205 (Winter, 2010), by Allyson Gold, left off. Of particular assistance will be the recent statutory amendments, any relevant case law, interpretive statements from the Department of Housing and Urban Development, and the “working interpretation” adopted by legal services providers and others agencies dealing with the foreclosure crisis. Consequently, this article will conclude with a proposal for a reasonably fair interpretation of the PTFA in states with foreclosure by advertisement and in states where the PTFA is not expressly preempted but still leaves questions.

Steve Clowney