Friday, May 18, 2012
Shelly Kreiczer-Levy (Academic Center of Law & Business - Israel) has posted Inheritance Legal Systems and the Intergenerational Bond (Real Property, Probate, & Trust Law Journal) on SSRN. Here's the abstract:
This article offers an analysis of three legal systems of inheritance: American law, common law family provision, and civil law. It offers a unique reading of these systems by focusing on the role of continuity in inheritance and by stressing the position of potential recipients. It uses the concept of the intergenerational bond to capture the intersection of continuity, property, and the giver–receiver interrelation. It then highlights the role of continuity in each system and explores their different constructions of continuity. Two main conclusions arise. First, each of these systems has a bifocal dimension. Second, these legal systems can be defined along two axes. One axis is the balance between the giver and the receiver. The other is the content of the bond. The balance between testamentary freedom and familial continuity varies among legal systems, but provides a general model for understanding these systems.
Thursday, May 17, 2012
I didn't take a course in "Property" in my New Zealand LLB; rather, I took courses in "Land Law" and "Equity and Succession". Some thoughts:
* The basis of Land Law was the Torrens system and issues around indefeasibility, though of course estates in land, the relationships of landlord/tenant and mortgagor/mortgagee, easements, adverse possession, etc were part of the paper.
* Equity and Succession covered trusts, wills, and equitable jurisdiction (though in NZ, common law and equity are in a single court system - and some would say are "fused", at least to some extent). This also considered realty vs personalty.
* Personal property and intellectual property were generally part of optional courses.
What this means is that the rule against perpetuities was part of Equity, rather than "Property" (and in New Zealand we have a Perpetuties Act, which generally makes things much easier). It seems to be an obsession of US teachers (and students) of "Property"!
The failing of this system, however, was the lack of an overview of "Property" as a whole. It is one thing to learn about land registration, estates in land, trusts, and so on - but quite another to miss out on "what is property?" (particularly given my earlier comments on the lack of graduate law courses in property). On the other hand, that has had the benefit of discovering Rose, Heller, Gray, Merrill and Smith by reading them, rather than being taught them - which might be the best way to learn.
But what do the Americans think - is the rule against perpetuities here to stay in the first-year Property course? Does it belong somewhere else? Will the first-year Property course itself remain in its current (varied) forms?
The LA Times sizes up new tools that help lenders catch people who fib on their mortgage applications:
Sometimes the fraud check is as simple as a quick call to the customer right before the loan is closed to verify information supplied on the loan application. Such a call to an otherwise unsuspecting borrower can sometimes uncover a lie perpetrated by a corrupt loan officer who's in it for the commission — or more. [...] In other cases, lenders are using sophisticated databanks to spot the crooks. "There's a tremendous wealth of data being deployed," said Becky Walzak, a quality assurance consultant in Deerfield Beach, Fla. "There are tons of databases available to validate the information you give us."
Johanna Bond (Washington and Lee) has posted Honor as Property (Columbia Journal of Gender and Law) on SSRN. Here's the abstract:
This Article is the first to use a property lens to explore the social construction of honor within legal systems around the world. The Article makes the claim that the law in many countries has implicitly treated honor as a form of property and has made legal and social allowances for men who seek to reclaim honor property through violence. The Article expands the boundaries of the existing scholarship concerning honor-related violence by exploring the intersections between social constructions of honor and social constructions of property. Using a property lens to analyze the relationship between honor, patriarchal control, and law provides a deeper understanding of the motivations for this form of gender-based violence. The Article also assesses the implications of this new theoretical model and concludes that honor must be reframed to position women as potential holders of honor property and to disassociate honor from the social regulation of women’s sexuality.
Wednesday, May 16, 2012
The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated. The mining companies that caused the contamination and abandoned the mines are, of course, out of business. The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”
Yet, the article also describes the people who didn't want to leave, despite every reason to do so. The article describes the remaining residents:
A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”
A fascinating, and depressing story.
PBS has put together a list of the top ten buildings that have transformed the way Americans live, work and understand the urban form. The selections go from the Jefferson-desinged Virginia State Capitol to Robert Ventui’s Vanna Venturi House. A fun list.
Over at the Faculty Lounge, Al Brophy highlights Andrew Kahrl's new book, The Land Was Ours: African American Beaches from Jim Crow to the Sunbelt South. Brophy writes:
This is a really terrific study of segregated beaches in the South during Jim Crow and the transition to integration and the related loss of African American land along those beaches. It's a beautifully written and haunting story. I highly recommend this book to property and land use professors. I hope it gets a lot of attention in law schools as well as history departments.
Tuesday, May 15, 2012
"Property rights" is a phrase more often treated normatively than positively. "Property rights" are often seen as something essential to a modern economy and/or economic development. But less of the literature makes an effort to define what property rights actually are.
Which is interesting, as both parts of the term - the word "property" and the word "rights" are often contested terms. It seems they can each be extensively debated on their own, but once we put them together, no debate is needed: we have a clear, monolithic, normative phrase.
I disagree. But do others? And if you disagree, what is the best working definition of "property rights" that you have seen?
If you love Scotch and love property, then I'm about to make your day. Laphroiag is offering the most brilliant (or at least the most property-centric) alcohol marketing program ever imagined. Every member of the Friends of Laphroiag" program is given a lifetime lease on a one-foot square plot on the island where the Scotch is distilled. According to the "contract," the distillery "pays you rent" in the form of a glass of Scotch if you visit the distillery. Moreover, if you make it to Scotland, they actually give you a map so that you can visit your plot and they lend you protective gear to make sure you survive the schlep through the bog.
The lease reads in pertinent part:
This is the certify that XXXX is a Friend of LAPHROAIG and, accordingly, has become the lifetime leaseholder of an unregistered plot recorded at LAPHROAIG DISTILLER.
As condition of this award, we agree to pay a yearly ground rent in the sum of one dram of Laphroaig, to be claimed in person at the distiller. You understand we’re not offering heritable ownership or any right to cut peat, farm sheep or extract minerals from the plot – far better to take up your right to a warming measure of Laphroaig.
(HT: Thanks to my colleague, Richard Ausness for bringing this to my attention)
Steven Eagle (George Mason) has posted Judicial Takings and State Takings (Widener Law Journal) on SSRN. Here's the abstract:
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Supreme Court plurality asserted that takings liability could arise from judicial acts, as well as from state or local legislation and executive agency decisions. The Plurality’s rationale supporting “judicial takings” was that the Just Compensation Clause of the Fifth Amendment applies to State acts, not to particular State actors.
This article starts by reviewing the doctrinal bases for the Stop the Beach plurality opinion. It provides prudential reasons why rulings affecting property rights might be legitimate under state law, but nevertheless constitute compensable takings under the federal constitution. It then analyzes the implications of the “state acts and not state actors” doctrine to existing regulatory takings law. Viewed through the lens of “state acts,” the rationales of the Supreme Court’s Williamson County “state litigation” prong and its Dolan “legislative vs. adjudicative” bifurcation are undermined. Similarly, takings distinctions pertaining to whether small-scale rezonings are “legislative” or “quasi-judicial” acts are drawn into question.
Monday, May 14, 2012
The New York Times runs a story on recent effort to start preserving some historical architecture in Beverly Hills:
“Beverly Hills has been up until now somewhat of a joke in the historical preservation community,” John A. Mirisch, a city councilman, said in January at a public meeting. “The joke was that preservation, Beverly Hills-style, was to take a picture of a building before you tore it down.”
But even the most battered reputations can change in a Hollywood minute. Earlier this year, Beverly Hills enacted the first historical preservation ordinance in its 98-year history. Preservationists are hoping the move will inspire others to follow suit in Los Angeles, where the instinct to tear down and build anew has long stood in stark contrast to the obsessive (and sometimes onerous) efforts of New York City’s Landmarks Preservation Commission to preserve the works of great architects.
Gregory Alexander (Cornell) & Hanoch Dagan (Tel-Aviv) have recently published Properties of Property, a reader on property theory. From the authors:
Broadly interdisciplinary, Properties of Property provides an overview of cutting-edge work from leading legal scholars as well as important non-legal scholars. The text is designed for an international audience, particularly teachers, scholars, and students throughout Europe, the British Commonwealth, and China. Properties of Property is perfectly suited for courses and seminars in other departments, from history to urban planning, both at the graduate and undergraduate level. It is a must for any law school library, even if no seminar on property theory is offered, because it appeals to law school students as well as scholars and graduate students interested in property. A Teacher’s Guide provides different ways the authors have organized property theory seminars using the book; suggestions for using the book as a companion to a property casebook; and discussion of questions that are posed in the Notes.
This looks like a terrific resource for anyone trying to get a feel for contemporary property scholarship, teaching a course on jurisprudence, or looking to bring new insights to their 1L property course.
Friday, May 11, 2012
James Smith (Georgia) has posted Some Preliminary Thoughts on the Law of Neighbors (Georgia Journal of International and Comparative Law) on SSRN. Here's the abstract:
A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.
Owners of neighboring parcels have sets of rights, privileges, and duties that define their legal relationships with neighbors. In Anglo-American law, those rights, privileges, and duties are components of real property law, but they are not a recognized category of real property law. Rather, they represent the application of general doctrines and rules to neighbors, instead of a distinct and cohesive body of law of its own. Other legal systems have developed distinct bodies of law to govern relations among neighbors.
The law of neighbors or “neighborhood law” is not presently a recognized type of law practice in the United States, and it will not likely become one anytime in the near future. In part this is the case because neighbor law disputes typically do not involve high financial stakes and resulting incentives for lawyers to market themselves as experts in the area. This Article suggests that if the field of neighbor law develops in the United States, academics will have to lead the way.
This Article does three things. First, it introduces the “stranger model” and the “friend model” of neighbors law, using these models as a frame for describing three components of existing U.S. law applicable to neighboring landowners. Second, it briefly describes the extent to which South Africa and Scotland have come to describe neighbors law as a discrete legal category, which correlates to the stranger model and friend model. Third, it concludes by making several suggestions on how the models may help in the construction of a coherent law of neighbors.
Thursday, May 10, 2012
Felix Salmon shows that you can save money by buying a house:
In the chart, the red line shows the mortgage payment you’d have to make if you took out a standard 30-year mortgage for the median asking sales price for vacant sale units. In reality, your mortgage payment would be lower, since this doesn’t take into account any downpayment. But in any case, thanks to ludicrously low mortgage rates below
9% 4%, that number is now lower than the median national rental price. This is the first time that’s happened since 1988, and probably for quite some time before that, too.
Remember that houses for sale tend to be bigger and more valuable than houses for rent, too — which only goes to underscore how good a deal buying is versus renting right now.
Jonathan Rose (Arizona State) has posted Medieval Estate Planning: The Wills and Testamentary Trials of Sir John Fastolf on SSRN. Here's the abstract:
Medieval will-making has often been associated with efforts right before death. But estate planning activity at an earlier time was also possible and was pursued by the upper reaches of English society. Sir John Fastolf (1380-1459), a wealthy East Anglian knight, made substantial efforts to plan his estate. He made several wills and charters enfeoffing land to his use. But his efforts faced many obstacles and ultimately failed, resulting in a contest regarding the validity of his death-bed will.
This essay documents those estate planning activities. It does so by recounting a story of longstanding interest to medieval historians and other scholars. Using extensive primary sources, the essay, for the first time, explores completely and orderly all the relevant wills, charters, and other documents as well as the voluminous testimony in the will contest.
The full story shows that Fastolf’s estate planning efforts were ultimately frustrated by deathbed changes, other claims on the property, the need for royal approval, political factors, conflicts among executors, and papal intervention. Nor is it clear whether they ever could have been successful or whether medieval estate planning could ever be secure.
Wednesday, May 9, 2012
Take a break from grading, administering, or writing exams today and call in to the "Professor's Corner" teleconference sponsored by the American Bar Association's Real Property Trust and Estate Law Section. Wilson Freyermuth, Matt Festa, and I will be discussing three recent cases that will be of interest to property profs and practitioners alike. Whether you are a member of the ABA or not, you are welcome to call in and spend a little time with your fellow property profs today.
These calls will be held monthly, on the second Wednesday of each month at 12:30 eastern time. If you have a recent case that you would like to discuss on a future call, please let me know!
Details of the call are below:
The ABA Real Property, Trust and Estate Law Section’s Legal Education and Uniform Laws Group has a regular (and free!) monthly teleconference, “Professor’s Corner,” in which a panel of three law professors highlight and discuss recent real property cases of note.
The May 2012 call is this Wednesday, May 9, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific). The call-in number is 866-646-6488. When prompted for the passcode, enter the passcode number 557 741 9753.
The panelists for May 9, 2012 are:
Professor Tanya Marsh, Assistant Professor of Law, Wake Forest University School of Law. Professor Marsh will discuss Roundy’s Inc. v. National Labor Relations Board, 674 F.3d 638 (7th Cir. 2012). Decided in March 2012, this case held that Roundy’s (a non-union supermarket chain) did not have the right to exclude third parties (in this case, non-employee union organizers) from common areas of shopping centers in which it operated.
Professor Matt Festa, Associate Professor of Law, South Texas College of Law. Professor Festa will discuss Severance v. Patterson, 2012 WL 1059341 (Tex. 2012). In this case, decided March 30, 2012, the Texas Supreme Court struck down the “rolling easement” theory of public beachfront property access under the Texas Open Beaches Act.
Professor Wilson Freyermuth, John D. Lawson Professor and Curators’ Teaching Professor, University of Missouri. Professor Freyermuth will discuss Summerhill Village Homeowners Ass’n v. Roughley, 270 P.3d 639 (Wash. Ct. App. 2012), in which the court refused to permit the mortgage lender to exercise statutory redemption after its lien was extinguished by virtue of a foreclosure sale by an owners’ association to enforce its lien for unpaid assessments. He will also discuss First Bank v. Fischer & Frichtel, 2012 WL 1339437 (Mo. April 12, 2012), in which the Missouri court rejected the “fair value” approach to calculating deficiency judgments under the Restatement of Mortgages.
A conversation between Richard Florida and Jonah Lehrer:
[T]he sheer disorder of the metropolis maximizes the amount of spillover. As Jacobs once wrote, “By its nature, the metropolis provides what otherwise could be given only by traveling; namely, the strange.” Cities force us to interact with strangers and with the strange. They pry the mind open. And that is why they are the idea that has unleashed so many of our new ideas.