PropertyProf Blog

Saying "No" to NIMBYism

Will Doing explains how land use rules designed to halt the spread of urban renewal projects in the 70s have had taken on new life as the preferred tool of NIMBY obstructionists:

These rules, designed to check the power of city officials, now perversely consolidate immense power in the hands of a few outspoken “concerned citizens.” By dragging out the building process indefinitely, these people can make it so expensive that deep-pocketed luxury developers have a better chance of surviving it than anyone actually building affordable housing. Worst of all, these rules have created a new norm in which individual residents just assume that their personal opinions should carry great weight in routine planning decisions. According to a 2011 survey, one in five Americans have actively opposed a local development project, and 74 percent want no new development in their communities at all.

Steve Clowney

Ely on Property Rights and the Supreme Court in the Gilded Age

James Ely (Vanderbilt) has posted Property Rights and the Supreme Court in the Gilded Age (J. of Supreme Court History) on SSRN.  Here's the abstract:

This article challenges the conventional wisdom about the property-rights jurisprudence of the Supreme Court in the period 1870-1900. It asserts that the Court was animated to protect the rights of property owners as a means of upholding individual liberty against governmental overreaching. The justices saw private property as essential for the enjoyment of liberty. This commitment to individualistic values was reinforced by utilitarian considerations. The Court repeatedly stressed the vital role of property and contractual rights as the basis of economic growth. In upholding property right the justices drew upon the long-standing Anglo-American tradition of property-conscious constitutionalism. The essay concluded that there was a close affinity between the views of the framers of the Constitution concerning the sanctity of property rights and the jurisprudence of the Gilded Age.

Steve Clowney

Do Trees Deter Crime?

If they're well groomed:

In the June issue of Landscape and Urban Planning, a team of environmental researchers led by Austin Troy of the University of Vermont report an inverse relationship between tree canopy and a variety of crimes in the Baltimore city and county regions. All told, Troy and colleagues conclude that "a 10% increase in tree canopy was associated with a roughly 12% decrease in crime."[...]

The results were not entirely straightforward. In some pockets of Baltimore city, for instance, the presence of trees indeed seemed to increase crime rates, just as some of the previous literature suggests. That was especially true in the outer harbor areas of Brooklyn Park, Wagners Point, and Dundalk — places with poorly groomed vegetation where "the concealment value of the vegetation outweighs its deterrent effect".

Steve CLowney

Streamlining the Short-Sale Process

The N.Y. Times summarizes:

With rules that take effect next month, federal regulators have hopes of greatly streamlining the short-sale process.

Starting June 15, the Federal Housing Finance Agency, which regulates Fannie Mae and Freddie Mac, will require both agencies to give short-sale buyers a final decision within 60 days. (In a short sale, a lender agrees to accept less than the balance on mortgage).  Fannie and Freddie must also respond to initial requests for a short sale within 30 days of receiving the buyer’s submission.

Steve Clowney

Mandelker on Planned Communities

Daniel Mandelker (Washington University in Saint Louis) has posted a number of chapters from his book on design standards in planned communities.  The latest contribution is The Constitutionality of Design Standards in Planned Community Regulations. Here's the abstract:

This is the fifth chapter in a book, Designing Planned Communities (2010), that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation. Design standards in planned community regulations can raise constitutional problems because a court can hold them unconstitutionally vague or an unconstitutional delegation of legislative power. This problem occurs especially with planned community regulations that contain indeterminate design standards, such as requirements that a planned community’s design be “creative” or “harmonious.” The judicial record on the constitutional issues is mixed. Some courts have struck down stand-alone design standards that are not part of a comprehensive program for regulating planned communities, but some have not. Courts have upheld design standards when they are one element in a program of planned community regulation. Even when the courts have struck down design standards, they have provided drafting guidelines that can avoid constitutional problems. The entire book can be downloaded by going to the author's profile on Washington University Law School's website.

Steve Clowney

The New Private Law

Following on from my earlier post, I have another title idea for responding to Henry Smith : Property as the Law of Strings.

You know, the strings that tie the bundle together ...

Thomas Gibbons

How do cranes get to the top of skyscrapers?

Slate has an answer to the question you've been pondering:

[T]here are actually three ways: 1) the external climbing method, in which the crane—the arm plus its tower—expands upward along the outside of the building, 2) the internal climbing method, in which the crane builds a few floors at a time from the inside and then “jumps” to a higher spot, and 3) the “skycrane” method of airlifting in a crane on a helicopter. (Engineers at 1 WTC are using both of the first two methods.)

Steve Clowney

New Urbanism Defeats the US Military

Military planners are now trying to make bases more walkable:

At military installations, suburban-style sprawl is out and walkable communities are in, under new Defense Department planning guidelines. The guidelines, released this week, call for "compact development" that incorporates mass transit and a mix of residential housing close to shops and other businesses. Energy conservation is a key goal; trees and other greenery should be considered as well.

[..."We have not had a good master planning process," Robyn said. Many bases are "very sprawling, very auto-centric. You have to have to have a car to get around."  Joint Base Lewis-McChord, Wash., for example, has 70,000 parking spaces, even though its daily population never exceeds 40,000, she said.

Steve Clowney

Celebrity Sellers Have Little Effect on Home Prices

The LA Times reports that buyers won't pay more for the homes of the rich and super famous:

Although the masses respond to rock-star branding, housing is too expensive for celebrity ownership to make a measurable dollar difference, said Elizabeth Currid-Halkett, author of "Starstruck: The Business of Celebrity" and an associate professor at the USC School of Policy, Planning and Development.

"This is different than buying a sports drink because Tiger Woods endorsed it," Currid-Halkett said. Home value is too complicated, she said, with lots of variables: the season, the location, the quality of the home. "In the art world, there is this notion of provenance — that who owns something can detract or add to the value," Currid-Halkett said. "But it does not seem to translate to celebrity homes."

Steve Clowney

Austin on Property Theory

Lisa Austin (Toronto) has posted Possession and the Distractions of Philosophy (chapter of book edited by Jeremy Penner and Henry Smith)  on SSRN. Here's the abstract:

This paper argues that many types of philosophical argument distract us, rather than provide clarity, in relation to the role that possession plays in the law of property. The philosophical strategies I have in mind include the natural law tradition’s fascination with state-of-nature stories as well as Dworkinian claims that law is a matter of interpretation that must make reference to a general theory of justice. By either imagining away the concrete details of our legal system and institutions (through invoking a state of nature) or by passing too quickly to weightier ideas of justice and fairness (through Herculean judgment), these strategies distract us from seeing the centrality of law to a proper understanding of possession.

To show this, I use the well-known distinction between justifying a particular action within a practice and justifying a practice as a whole. Puzzles about whether some particular action counts as “possession” and why this might be so are questions of the former kind and puzzles about why we might want to recognize and protect possession at all are questions of the latter kind. The key point is that different kinds of answers are suitable to the different questions. In other words, it is not clear at all that answering the question of how one should understand the elements of the practice of possession has anything to do with answering the question of why we think the practice of possession as a whole is justified.

Answering questions about the elements of a practice should therefore make reference to the practice itself. The law of possession has multiple aspects but three stand out: it can refer to the relationship between a person and a thing (factual possession), it can refer to rights (the right of possession), it can refer to the question of to whom these rights can be attributed (possessory title). My claim is that to properly understand how these three aspects work and are related, we also need to bring to the fore the specifically legal aspects of this practice that help to constitute it and serve as its central organizing ideas. In this regard I look to two different legal ideas. The first is Lon Fuller’s understanding of the principles of legality, which I argue can help us understand the role that factual possession plays in determining title conditions. The second is Kant’s understanding of omnilaterality as a legal relation (which I will sever from his broader project of political justification), which I argue can help us understand the logical structure of the right of possession. Taken together these legal ideas illuminate that possession is at its core a legal practice and that references to pre-legal thought experiments (like the state of nature) or extra-legal values (such as political morality) are unhelpful in understanding its particular doctrinal features.

Lawns Stink

Kevin Baldwin makes the case against the American lawn:

I have never understood lawns. What exactly is the point? A uniform swath of green grass seems so contrived and unnatural. [...] This is more than simply an academic exercise. Multiply a quarter-acre lot by tens of millions and you are talking about some serious acreage. Lawns collectively comprise the largest irrigated crop in the U.S., covering ... an area larger than Ohio.

Given this acreage, it is not surprising that about one fourth to one third of all herbicides are used on lawns (the exact percentage depends on the herbicide). Fertilizer application also tends to heavier than needed, creating nitrate runoff that contaminates drinking water aquifers. Compared to agricultural applications, lawns tend to suffer over-application. Lawns represent a huge contribution to non-point source pollution.

Steve Clowney

(HT: The Daily Dish)

Chodorow on Death and Taxes and ZOMBIES!

Adam Chodorow (Arizona State) has posted Death and Taxes and Zombies (Iowa Law Review) on SSRN.  Here's the abstract:

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

This article fills a glaring gap in the academic literature by examining how the estate and income tax laws apply to the undead. Beginning with the critical question of whether the undead should be considered dead for estate tax purposes, the article continues on to address income tax issues the undead are likely to face. In addition to zombies, the article also considers how estate and income tax laws should apply to vampires and ghosts. Given the difficulties identified herein of applying existing tax law to the undead, new legislation may be warranted. However, any new legislation is certain to raise its own set of problems. The point here is not to identify the appropriate approach. Rather, it is to goad Congress and the IRS into action before it is too late.

Steve Clowney

(HT: Kara Swanson)

The Psychology of Parking Space Ownership

People are triflin':

Three studies showed that drivers leaving a public parking space are territorial even when such behavior is contrary to their goal of leaving. In Study 1 (observations of 200 departing cars), intruded-upon drivers took longer to leave than nonintruded-upon drivers. In Study 2, an experiment involving 240 drivers in which level of intrusion and status of intruder were manipulated, drivers took longer to leave when another car was present and when the intruder honked. Males left significantly sooner when intruded upon by a higher rather than lower status car, whereas females' departure times did not differ as a function of the status of the car.

Steve Clowney

Adverse Possession, Takings and the State

William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.

Here's the abstract:

Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.

By way of comparative comment:

• It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia.  New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense.  I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
• Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses.  In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
• Marra hasn't steered away from takings.
• An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
• 

Thomas Gibbons

AALS Call for Papers

From the AALS Property Section:

The AALS Section on Property is pleased to announce a Call for Papers for its joint program with the AALS Section on Natural Resources & Energy Law during the AALS 2013 Annual Meeting in New Orleans, LA.  This joint program, entitled “40 Years of Environmental and Natural Resources Law: A Prospective Look,” will forecast how the law surrounding environmental and natural resources might change in the four decades to come.  It is scheduled for Monday, January 7, and accompanies a companion program jointly sponsored by the AALS Sections on North American Law and Environmental Law, which is entitled “40 Years of Environmental and Natural Resources Law: A Retrospective Look.”  Therefore, this event in its entirety will include four interrelated one-and-one-half-hour sessions.

The specific session organized by the Section on Property is centered on “A Prospective Look at Property Rights.”  Broadly speaking, the panelists will examine the legal and political issues that local, national, and international communities confront in seeking to balance public and private interests in the face of significant modern environmental and natural resource challenges.  The Section on Property seeks one to two papers that will advance this session’s theme and complement the scholarly perspectives of the following speakers: Maxine Burkett (University of Hawaii School of Law), Steven Eagle (George Mason University School of Law), John Echeverria (Vermont Law School), and Carol Rose (invited) (University of Arizona College of Law).  The George Mason Law Review has agreed to publish papers emanating from this session’s presentations in the spring of 2013.

Full-time faculty members of AALS member and fee-paid law schools are invited to submit an abstract not exceeding one page by e-mail to Shelley Saxer (Pepperdine University School of Law), the Chair of the Section on Property Law, at [email protected] by June 15, 2012.  Professor Saxer will select one or two of the submissions for inclusion in the program in consultation with the Section’s officers.  Submitting authors will be notified of the results of the selection process by July 1, 2012.  To assure timely publication, selected authors should plan to submit their papers of 7,000-8,000 words above the line to the George Mason Law Review by November 1, 2012.  The selected authors will be responsible for paying their annual meeting registration fee and travel expenses.  Questions should be directed to Professor Saxer at the above-noted email address.

Steve Clowney

 

"so that every poor man may have a home"

I love talking about the 1862 Homestead Act in Property, but I'm always amazed at how little students know about what I regard as a pivotal law in American history.  (It was personally significant too, as nearly all of my great-great-great-grandparents earned their Nebraska farms under to the Homestead Act or the prior Military Bounty Land Act of 1855.) 

The Disunion series in the New York Times has a fascinating piece today on the history and political rhetoric surrounding the passage of the Homestead Act, including President Lincoln's argument to “[cut] up the wild lands into parcels so that every poor man may have a home.”  So much of the rhetoric still resonates today in discussions regarding Occupy Wall Street, and whether the government should encourage homeownership.

By the way, if you are in Washington, D.C., you can visit the National Archives and view the original documents filed by homesteaders perfecting their claims.  Fascinating stuff.  For example, I found the original handwritten affidavit by my fourth great-grandfather (Jesse Pollard) testifying that my third great-grandfather (Pharagus Pollard) had managed to get 35 of the 160 acres in Richardson County, Nebraska under cultivation in his first year of homesteading, as well as construct a dwelling house that had doors, windows, and a floor.  According to tax and census records, Pharagus did not have a mule, horse, or ox on the farm, so he must have either borrowed the necessary beasts (which is unlikely) or done the work under his own power.  Unfortunately, Pharagus died in the Civil War and left his widow and young children to finish improving the farm. 

Kinda puts grading Property exams in perspective. 

Tanya Marsh

Who Owns Zimbabwe's Minerals?

The N.Y. Times documents Mugabe's attempt to put more of Zimbabwe's mineral wealth in the hands of the indigenous black population. Fascinating stuff:

According to Zimbabwe’s indigenization law, black Zimbabweans must own 51 percent of shares of foreign companies operating here. About 20 percent of the shares are supposed to go to community trust funds, which in theory will pay for local development projects, and company employees. The rest must go to black Zimbabweans.

But exactly how these aims are to be achieved is unclear. Many of these companies are publicly held, and their shares are not the companies’ to give or sell. On top of that, few black Zimbabweans have the means to buy large numbers of shares at market value.

Steve Clowney

UPDATE: Marker's Mark Seal Deserves Trademark Protection

Last week the Sixth Circuit held that the producers of Maker's Mark bourbon can stop rival distilleries from using red wax seals on their bottles.  Writing for a unanimous panel, Judge Boyce Martin (of Louisville) ruled that Maker's Mark has an "extremely strong" trademark deserving protection.  The opinion provides a thorough history of bourbon and a good intorduction to the concept of trade dress.  Here's one of many fun facts:

The legend of the birth of bourbon is not without controversy: “As many counties of Kentucky claim the first production of Bourbon as Greek cities quarrel over the birthplace of Homer.” The generally accepted and oft-repeated story is that “the first Bourbon whiskey… made from a mash containing at least fifty percent corn, is usually credited to a Baptist minister, The Reverend Elijah Craig, in 1789, at Georgetown, [Kentucky],” just prior to Kentucky’s joining the Union as a state in 1792.

Steve Clowney

Eagle on Urban Redevelopment

Steven Eagle (George Mason) has posted Rethinking Urban Development (George Mason Law Review) on SSRN.  Here's the abstract:

This short article discusses urban redevelopment, and its relation to economic productivity and various concepts of well being. It notes that solutions adopted in one era are apt to be the problems of the next. The article then introduces the four articles comprising the George Mason Law Review “Rethinking Urban Development” Symposium.

Dean Daniel Rodriguez and Professor David Schleicher’s The Location Market stresses the importance of agglomeration economics, by which critical masses of similar individuals lead to enhanced productivity. On the other hand, Professor J. Peter Byrne’s Historic Preservation and Its Cultured Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development stresses the importance for human flourishing of a critical mass of historic structures. Professor Peter Salsich’s Does America Need Public Housing? asserts the importance of a supply of societal housing. Finally, Professors Julie Forrester and Jerome Organ assert, in Promising to be Prudent: A Private Law Approach to Mortgage Loan Regulation in Common-Interest Communities, that private covenants limiting leveraging by homebuyers could prevent or alleviate harm to community residents from another housing bust. Together, the articles mirror the variety of contemporary development issues.

Steve Clowney

Land Use Rules Have Prevented Four Million People From Moving to the Bay Area

Timothy Lee details how bad land use planning has contributed to the slow recovery:

[S]ince 1990, the population of the Bay Area has grown by less than 20 percent. That’s slower than the growth rate for the country as a whole. Silicon Valley is creating new opportunities at a rapid pace, but relatively few people are moving there to take advantage of them.

Probably the most important reason, as Ryan Avent has pointed out, is that housing regulations make it impossible to build a significant number of new housing units. A variety of regulations—minimum lot sizes, maximum building heights, parking mandates, restrictions on renting out basements, and so forth—place an upper bound on the number of units of housing that can be built in any given municipality in the Bay Area. And developers have simply run out of new places to build that are within a reasonable commuting distance of Silicon Valley or San Francisco.

Steve Clowney