PropertyProf Blog

Mandelker on Implementing State Growth Management Programs

Daniel Mandelker (Washington St. Louis) has posted Implementing State Growth Management Programs: Alternatives and Recommendations (John Marshall Law Review) on SSRN.  Here's the abstract:

State growth management programs are a major part of the Quiet Revolution in land use control. States now have forty years of experience with these programs, and it is time for an assessment to see what they have accomplished. What do they cover? How are their criteria implemented? How are they enforced? These questions raise a very important problem. Statutes, plans, and policies are not enough. State land use programs must be effectively implemented if they are going to be successful.

Implementation is an important issue because tensions often arise between states and their local governments that affect program success. The reason why tensions arise is clear. Land use regulation traditionally is a local government function, but state growth management programs insert a state interest those local governments must recognize. State mandates overlay existing local government responsibilities and require a substantial change in how local governments carry out their land use planning and land use regulation mandates.

A review of these state programs finds a highly eclectic variety. There is no clear model, there is no clear or accepted structural pattern these programs followed when states adopted them. Each responded to land use problems the legislature and state leadership saw as requiring attention, and solutions to these problems influenced how the programs were constructed. State programs also reflect attitudes about intergovernmental division of power over land use decisions. These programs have not changed substantially in the last forty years, so the time has come to consider how they are organized, and whether change should occur. This article examines two issues: program coverage and program criteria, and how they are applied.

Steve Clowney

Using Partial Sales to Avoid Foreclosure

The New York Times shows that in recent months a significant percentage of new real estate deals in Manhattan have involved groups taking partial stakes in buildings instead of buying properties by themselves:

Many of today’s transactions are recapitalizations, in which the property owner uses an outside investor’s capital and credibility to persuade the lender or lenders to restructure the property’s debt. In exchange, the new investor typically gains equity, or an owning interest in the property. Often requiring lengthy negotiations among lenders and other stakeholders, the resulting deals usually bring the new investor into the existing ownership structure.

[Another] possible deterrent to conventional sales is transfer tax, which the seller must pay upon selling 50 percent or more of a property. The combined city and state transfer tax in Manhattan is 3.025 percent, one of the highest rates in the nation. The frequency of 49 percent office trades in recent months suggests that sellers are well aware of this tax trigger and are taking steps to avoid that cost through partial-interest transactions.

Steve Clowney

(HT: Chris Odinet)

Edelstein, Liu, & Wu on Selling Non-Completed Residential Dwellings

Robert Edelstein (Berkeley-Economics), Peng Liu (Cornell), and Fang Wu (Citadel LLC) have posted The Market for Real Estate Presales: A Theoretical Approach (J. of Real Estate Finance & Economics) on SSRN. Here's the abstract:

Presale agreements have become a pervasive worldwide practice for residential sales, especially in many Asian markets. Although there is a burgeoning empirical literature on presales agreements, only a few papers actually address their theoretical foundations. We create a set of interrelated theoretical models for explaining how and why developers and buyers engage in presale contracts for non-completed residential dwellings. Given heterogeneous consumer beliefs about future market prices, developers and buyers enter into presale agreements to mitigate, two intertwined, fundamental risks: those of real estate market valuation and default. Our analyses are consistent with prior empirical findings and provide additional theoretical insights for understanding the market for presales.

Steve Clowney

 

Hairy Times in Trademark

Anthony Davis, the likely No. 1 overall pick in this year's NBA draft, recently filed a trademark for multiple phrases related to his most unique physical feature --his unibrow.  Reports indicate that:

Earlier this month, the 19-year-old applied to trademark the terms “Fear the Brow,” and “Raise the Brow,” CNBC reported Monday Both terms were used extensively last season on shirts and signs and in the media, and there are currently multiple online shops, like this one, selling merchandise with these phrases; they would be restricted in doing so once Davis’ trademarks are approved.

Not bad, but I probably would have gone with "Bow to the Brow."

Steve Clowney

 

Who Gets Mom's Digital Possessions?

Amanda Katz of NPR examines what happens to our books when we die.  She also gives some thought to how the rise of e-readers could shape bequests:

Still, as far as posterity goes, the e-book system has some genuine superiorities over the old economy. Annotations exist in the cloud, so if your house burns down they are preserved. Your marginalia is accessible to more than just someone who holds the volume itself — biographers of the future will surely appreciate not having to count on a generous widow bequeathing them their subject's reading copy. With e-books, there's no need to fight over a single physical library copy; no trees need be cut down; unsold books need not be pulped; you don't need to lug books from apartment to apartment; pages will never be dotted with mildew.

Steve Clowney

The State of Affordable Housing

Via Land Use prof, here's a panel discussion on Affordable Housing hosted by the Cato Institute.  Entitled, "The Death and Life of Affordable Housing," the panel features an all-star lineup of commentators including my former classmate and all-round good-guy, Adam Gordon.  From the Cato Institute's description:

Featuring Ryan Avent, Author of The Gated City; Adam Gordon, Staff Attorney, Fair Share Housing; Randal O'Toole, Senior Fellow, Cato Institute, and author of American Nightmare: How Government Undermines the Dream of Homeownership; Matthew Yglesias, author of The Rent Is Too Damn High; moderated by Diana Lind, Executive Director and Editor-in-Chief, Next American City. . . .

The Cato Institute and Next American City will jointly host a panel discussion about housing and development policy in American cities. For several decades, U.S. policymakers have grappled with how to make housing more affordable for more people. In the past year, several new books have claimed that various government tools, such as zoning and subsidies, have limited people's access to desirable, affordable housing—while other leading thinkers have suggested that markets alone will not create socially, economically, and environmentally sustainable communities. With a shared goal of creating livable, affordable communities for all people—but diverging ideas of how to get there—the panel will give voice to a range of perspectives on the hotly debated issue of how to shape 21st-century American cities.

Steve Clowney

The Country's Best Parking Lot

Last week, the International Parking Institute (IPI) distributed awards of excellence to the country's best new parking structures.  The Award for Architectural Achievement went to the GEICO Garage in Orlando, Florida. A parking lot blog explains, "The garage is architecturally imitative of the local civic center, demonstrating a contextual recognition and aesthetic that goes beyond the scope of the standard parking garage. The LEED Gold-Certified structure is designed to be simultaneously unobtrusive, allowing for unobstructed views of the city, and architecturally alluring, with perforated aluminum panels and a façade categorized by shifting colors and textures."

Steve Clowney

Dana on Why Mortgage 'Formalities' Matter

David Dana (Northwestern) has posted Why Mortgage "Formailities" Matter (Loyola Consumer Law Review) on SSRN.  Here's the abstract:

This Article argues that adherence to mortgage formalities regarding foreclosure is valuable for expressive reasons and also as a potential deterrent to future undesirable underwriting and securitization practices. The Article reviews how some courts have in effect written procedural requirements for foreclosure out of the law, and asks why these courts have done so and whether lenders' behavior might have been improved during this housing crisis had the state courts uniformly afforded equal respect to the legal rights of homeowners and those of lenders.

Steve Clowney

 

Thoughts on the Cost of Homeownership

Neil Buchanan, economist and tax prof extraordinaire, muses on how he underestimated the "non-joys" of homeowenership:

What one cannot truly appreciate until one spends a few weeks in the midst of the reality of home ownership, I think, is just how much of the economy of scale involves a reduction in transactions costs. Without a management company to do it for them, homeowners individually have to figure out how to find the best alternative to expending their own time and effort. This means finding individual contractors, calling them, having them come to the house, haggling over prices, hoping they come to do the work when promised, hoping they do the work well, and paying them. (And later, perhaps, suing them.)

Steve Clowney

Property Protection for the Possessions of the Homeless

The New York Times details how some California cities are showing an increasing respect for the property of the homeless

For years, the authorities periodically swept the banks of San Jose’s waterways, dismantling and discarding the elaborate, makeshift homes built by hundreds of homeless people. [...]  The cat-and-mouse game served to check their numbers, at least enough to prevent a flood of complaints from residents nearby. But maintaining that balance has recently grown more complicated: fearing lawsuits by advocates for the homeless, the city has begun storing the belongings of people whose encampments have been cleared.

Steve Clowney

Dwyer on Urban Blight and Its Impact on Children

James Dwyer (William & Mary) has posted No Place for Children: Addressing Urban Blight and Its Impact on Children Through Child Protection Law, Domestic Relations Law, and 'Adult-Only' Residential Zoning (Alabama Law Review) on SSRN.  Here's the abstract:

For any child, residential location is a large determinant of well-being. At the negative extreme, a neighborhood can pose threats to children's well-being far exceeding those present within the home in typical cases of child protection removal. The worst neighborhoods pose direct threats to children's physical and psychological well-being, and they also adversely affect children indirectly by creating stressors that undermine parents' abilities to care for children. Pervasive crime and substance abuse, in particular, substantially elevate risks to children beyond those created just by less capable or less motivated parents. Given that a relatively high percentage of adults who live in the worst neighborhoods are marginal to begin with, in terms of their inherent capacities for giving care and maintaining safe and healthy homes, the additional threats present in the larger residential environment push the experience of most children in such neighborhoods below what most people -- including those who live in the neighborhoods -- would regard as a minimally acceptable quality of life. Because such neighborhoods are also likely to have inadequate -- even dangerous -- schools and few legal employment opportunities, living in them severely diminishes the life prospects of children forced to grow up in them.

To date, government efforts to improve the lives of these children, and scholarly writing on the topic, have focused on urban renewal and criminal law enforcement in these neighborhoods. These have mostly been unsuccessful, where they do succeed they typically do so by simply relocating the dysfunction to another neighborhood, and even if renewal efforts undertaken today might ultimately be successful that is of no help to a child born today into dangerous urban blight. The only way to ensure that children do not suffer the effects of growing up in deeply dysfunctional communities is to get them out now. Policy should shift to a strategy of separating children as early as possible from the adults who are creating toxic social environments in impoverished areas. In fact, programs that have assisted parents who wished to relocate with their children from high-poverty, inner-city neighborhoods to low-poverty areas have greatly improved the children's well-being and longterm life prospects. This Article presents a novel argument for expanding such relocation programs, an argument founded upon basic rights of children -- not rights against private actors who might harm them, though children certainly possess such rights, but rather rights against the state. I argue that the state violates basic rights of children by making certain decisions about children's lives that effectively consign many of them to living in hellish conditions. To remedy this violation of children's rights, the state should now institute reforms such as giving children first priority in distribution of housing vouchers and in provision of relocation assistance and, most controversially, making relocation out of the most dangerous neighborhoods mandatory rather than voluntary for parents who have and wish to retain custody of children. The state should no more permit parents to house children in apartments where stray bullets come through windows and drug addicts clutter the hallways outside than permit parents to take children into casinos and nightclubs. This Article argues that the state is legally free, and in fact morally and legally obligated, to adopt new legal rules and policies aimed at ensuring that no children live in the horrible neighborhoods that exist, and likely will always exist, in our society. It also presents a constitutional lever for overcoming political and community resistance to taking the necessary measures. These measures would entail changes to the law in three broad areas -- child maltreatment, domestic relations, and zoning.

Steve Clowney

Potter's Property

Mark Roark has a delightful post on the property issues embedded in the Harry Potter series:

One of the truly interesting things about property represented in Harry Potter is the ambiguous relationship of ownership to the property. [...] Consider all the property that is described in the magical world — just about every piece of property may be reoriented to new ownership, even without the express consent of the “owner” — a choice of the chattel, we might say that alleviates the need for disputes.

Steve Clowney

Rich Dad, Rich Dad

For those of you who teach Trusts & Estates, here's a slideshow of "10 Rich Dads Who Don’t Think Their Kids Deserve Their Money."

Steve Clowney

Thanks to Thomas Gibbons

This post is long overdue, but I wanted to thank Thomas Gibbons for his recent blogging stint.  His posts were insightful & informative, and we hope he'll join us again sometime soon.  Reading about Thomas' take on New Zealand shows once more that U.S. property law would benefit from more cross-cultural explorations.

Steve Clowney

Wanted: Awesome T-shirt

Tim Mulvaney, Secretary of the AALS Property Seciton, passes along a fun announcement.  The AALS Section on Property intends to hold an informal gathering at the AALS Annual Meeting in January to welcome those Property scholars who recently have joined the academy.  As part of a “welcome basket,” the Committee is considering including a clever, Property-themed T-shirt.  “I Own Blackacre” shirts are already out there, but the Committee is wondering if anyone has a better, more creative idea.  Post your property-themed slogans in the comments section or email Tim.

Steve Clowney

Can the U.S. Fix its Craptastic Airports?

The NY Times details how the U.S. is finally beginning to overhaul its outdated airport infrastructure:

At a time when federal and state public works programs are stalled, the nation’s biggest airports are in the midst of major renovations or expansions that, taken together, amount to some of the largest infrastructure projects in the country. [...]  New York’s three major airports, as well as the airports in Los Angeles, Dallas, Atlanta and Chicago, are spending billions of dollars. Many of the airports have aging terminals, some built in the 1960s and 1970s, that are ill suited to the bigger planes, bigger security lanes and bigger crowds of modern-day air travel.

Steve Clowney

The Idea of a Market for Organs is Gaining Traction?

Ilya Somin, blogging at The Volokh Conspiracy, makes the case. 

Specifically, he points to an interview with New Zealand economist Eric Cramption that recently aired on Radio New Zealand.  Somin writes, "I don’t know to what extent Crampton managed to persuade the interviewer or his listeners. But it is a good sign that the idea of organ markets is now mainstream enough to be taken seriously in public debate both in the US and abroad."

Steve Clowney

Homeowners’ Association Must Allow Political Signs

Eugene Volokh has posted a concise summary of Mazdabrook Commons Homeowners’ Ass’n v. Khan (N.J. June 13, 2012), an important property case out of the New Jersey Supreme Court:

The New Jersey Supreme Court is one of the few state courts that has interpreted its state constitution as restricting at least some private property owners, such as privately owned shopping malls and private universities. In today’s case, the court applied this to homeowners’ associations vis-a-vis their members, and held that the associations may not entirely ban homeowners from displaying political signs, though they may impose reasonable content-neutral rules on the size and number of those signs. (The court specifically stressed that, “[w]e do not suggest … that the Association could properly distinguish among different types of political signs.”)

Steve Clowney

Hudson on Coastal Land Loss

Blake Hudson (LSU) has posted Coastal Land Loss and the Mitigation-Adaptation Dilemma: Between Scylla and Charybdis (LSU Law Review) on SSRN.  Here's the abstract:

Coastal land loss is an inevitable consequence of the confluence of three primary factors: population growth, vanishing wetlands, and rising sea levels. Society may either mitigate coastal land loss by engaging in human engineering projects that create technological solutions or restore natural processes that protect the coastal zone, or it may choose to adapt to coastal land loss by shifting development and other human and economic resources out of areas especially at risk for coastal land loss. After detailing the primary threats to coastal lands and discussing the two primary means of addressing coastal land loss - mitigation and adaptation - this article makes three normative claims for why policy-makers should approach coastal land loss mitigation in particular with caution: 1) uncertainty of mitigation’s effectiveness scientifically and institutionally; 2) the political expediency of choosing mitigation over adaptation, and 3) the fact that failure to adapt past land use activities in the coastal zone has contributed to the need to adapt or mitigate today.

Steve Clowney

Map of the Day: UFO Sightings

UFO sightings per 100,000 people:

Steve Clowney