PropertyProf Blog

Lateral Moves

Brian Leiter has noted that the following property scholars have accepted appointments with tenure that will begin in 2013:

Alberto Lopez (trusts & estates, property, legal history) from the University of Richmond to the University of Alabama.

Eduardo Penalver (property, land use, law & religion) from Cornell University to the University of Chicago (beginning January 2013).

Gerald Torres (property, Indian law, critical race theory, environmental law) from the University of Texas at Austin to the University of California, Irvine.

Steve Clowney

Moore on Zoning Appeals

Kathy Moore (Kentucky) has posted The Lexington-Fayette Urban County Board of Adjustment: Fifty Years Later (Kentucky Law Journal) on SSRN.  Here's the abstract:

Fifty years ago, Jesse Dukeminier, Jr. and Clyde Stapleton published a case study of the practice of law before the Lexington-Fayette Urban County (LFUC) Board of Adjustment. This Article presents a new empirical study of the LFUC Board of Adjustment. Specifically, the study covers the eighteen month period from the Board’s July 2007 meeting through its December 2008 meeting. This Article discusses how the practice has changed and improved in the years since the Dukeminier-Stapleton study and the problems and difficulties that still remain.

The Article begins by describing the current procedure before the LFUC Board of Adjustment and how it has changed since the Dukeminier-Stapleton study. It then addresses the three basic types of appeals the Board considers: (1) variances, (2) conditional use permits, and (3) administrative appeals from the zoning administrator. With respect to each type of appeal, the Article first describes the governing law and how it has changed since the Dukeminier-Stapleton study. It then provides an empirical study of the Board’s voting behavior. The Article concludes with an overview of the ways in which the law and practice have changed since the Dukeminier-Stapleton study and the problems that remain.

Steve Clowney

The Fanciest Address in New York

The NY Times runs an article on the buildings with the most services (and highest annual maintenance fees) in the city:

For those willing to put down millions to own an apartment in Manhattan, a high tolerance for some of the highest monthly charges in the world is almost a prerequisite. Imagine the privilege of paying the equivalent, on an annual basis, of the cost of a new home in many parts of the country — all to ensure that you can get a cup of coffee, or a shirt ironed, at all hours of the day.

“It is a way of life that people really appreciate whose lives are quite busy and full,” said Kathy Sloane, a broker at Brown Harris Stevens who has sold apartments in the Carlyle. “They want everything to be organized for them, and they don’t ever want to question the standard.”

Steve Clowney

Map of the Day: The Most Republican States

From Slate.  The redder the state, the larger percentage of self-identified republicans:

 

Steve Clowney

Essert on Property as a Legal Office

Christopher Essert (Queen's - Canada) has posted The Office of Ownership (Toronto Law Journal) on SSRN.  Here's the abstract:

I defend an account of ownership as a legal office, according to which the rights and duties of a given owner are not the rights and duties of some individual person, but rather the rights and duties of the office of owner. This view of ownership has several advantages. First, it allows us to manage an apparent conflict between the fact that ownership rights and duties seem to be bilaterally structured and the fact that ownership rights and duties are merely contingently the rights and duties of a given person. Second, the account explains the common law’s distinction between a real covenant and a contract: the covenant is an agreement entered into by the owner as officeholder and thus binds future officeholders by running with the land, the contract is a merely personal agreement which cannot bind future owners. Third, the account can help to explain some of the borderline cases about what could count as the subject of property rights.

Steve Clowney

Should a College Student Buy a House Rather Than Live in the Dorms?

Recent news stories suggest that it may save a family money in the long run:

Investing in student housing may not only help to reduce the room-and-board portion of the tuition bill, but also provide a revenue source, and in some cases a tax deduction.

Steve Clowney

Kelly on the Uniform Probate Code

Dan Kelly (Notre Dame) has posted Toward Economic Analysis of the Uniform Probate Code (Michigan Journal of Law Reform) on SSRN.  Here's the abstract:

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead hand” control; analyzing UPC provisions pertaining to the harmless error rule, reformation, and ademption by extinction; and evaluating law reforms such as proposals to abolish attestation or prevent the disinheritance of children.

Steve Clowney

Today's Architecture Moment: Frank Lloyd Wright & the GOP Convention

The L.A. Times examines the stage design at the Republican Convention, which is influenced by the work of Frank Lloyd Wright. The stage "will be crowded with large video screens framed in wood. [...] The inspiration for the set, said Jim Fenhagen, lead production designer for the convention, is Wright's residential architecture, which often featured long horizontal bands of wood-framed windows."

According to the paper, the concept is not without risks, "For this particular ticket, the most obvious risk is the Ayn Rand connection. Wright was the chief inspiration for the headstrong architect Howard Roark, hero of Rand's 1943 novel 'The Fountainhead.'"  And then, there's this: "As for Wright, let's put it this way: He was no standard-bearer for conservative values. He grew his hair long and liked to wear a cape. His political views were far from consistent, but he leaned left and was accused of distrusting capitalism and even, on occasion, of having Communist ties."

Steve Clowney

Who Owns Land Created by a Volcanic Eruption?

Over at Land Use Prof, John Infranca has a great post about who owns land created by Volcanic Eruption in Hawaii.  The rub:

The court [in Kobayashi v. Zimring, 566 P.2d 725] distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil.  Under the common law, owners of contiguous land take title to land formed by accretion.  In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.”  Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner.  The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”

Steve Clowney

Perez on Property Rights and Transitional Justice

Nahshon Perez (Boston University - Religion) has posted Property Rights and Transitional Justice: A Forward-Looking Argument on SSRN.  Here's the abstract:

This article aims to describe a forward looking approach to the problem of property rights in transitional justice contexts. Undemocratic regimes violate property rights in various ways, from simple thievery to violations of opportunities to appropriate. Post transition situations entail an obligation to correct such injustices therefore. However, returning to the status quo ante is complex, costly, and requires information that is often not available. An alternative is the suggested FCR: forward looking, commensurable and redistributive. Such an approach emphasizes the creation of a baseline of ownership and welfare, rather than an attempt to return to the status quo ante.

Steve Clowney

Could Property Dispute Lead to WWIII

The New York Times looks at a brewing conflict between Japan and China over a handful of islands in the East China Sea:

[E]xperts say the increasingly shrill war of words over disputed islands between Japan and its East Asian neighbors, including China and South Korea, is potentially ... explosive. Unlike in the South China Sea, where the frictions center on competition for natural resources, the East Asian island disputes are more about history, rooted in lingering — and easily ignited — anger over Japan’s brutal dominance decades ago.

Those raw emotions were loosed over the weekend, as hundreds and possibly thousands of Chinese — in protests that were at least tolerated by the government — poured into the streets in several cities to denounce Japan’s claims over the Senkakus.

Steve Clowney

Our (Enormous) House, In the Middle of Our Street

Matt Yglesias looks at the insane size of houses in America:

One thing you're seeing here is the home mortgage interest tax deduction at work. This is often described as a program to encourage homeownership, but the homeowner/renter margin is a pretty small element of the impact. A much bigger impact is that it encourages every homeowner in America, at the margin, to buy a slightly larger house than would otherwise be the case and therefore encourages homebuilders to build slightly larger houses. There's nothing wrong with big houses, but it's far from clear why you would specifically want the tax code to encourage big houses rather than fancy cars or expensive rugs or whatever else people might buy in a neutral environment.

 

Steve Clowney

Laycock and Goodrich on RLUIPA

Douglas Laycock (Virginia) and Luke Goodrich (Becket Fund for Religious Liberty) have posted RLUIPA: Necessary, Modest, and Under-Enforced (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

Creating a physical place of worship is a core First Amendment activity, but churches are often unpopular in the zoning context, and zoning law entails vast discretion. To address the First Amendment and zoning issues that result, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). This article addresses the most common criticisms of RLUIPA: that there is no problem for RLUIPA to solve, and that RLUIPA gives churches carte blanche to burden their neighbors.

Twelve years of experience under RLUIPA show that neither criticism has merit. Churches continue to face hostility in the zoning context; RLUIPA is necessary. And while RLULIPA has protected many churches in the face of zoning resistance, churches lose when they overreach; judicial enforcement has been modest.

RLUIPA is actually somewhat underenforced, particularly with respect to its two most important provisions, “substantial burden” and “equal terms.” With respect to equal terms, we offer a clear textual resolution to the interpretive issues that have divided the courts. It is not the proposed land uses that must be equal, but the “terms” of regulation. Cities can exclude whatever assemblies they want without violating the equal terms provision, so long as they exclude religious and secular assemblies in the same terms.

Steve Clowney

Man Buys Island, Controls Lives of Thousands

The New York Times has an intriguing article about Larry Ellison's purchase of the Hawaiian island of Lanai. The article demonstrates, very poignantly, the relationship between property ownership and power:

Lanai’s new owner is Larry Ellison, a co-founder of Oracle. He bought 98 percent of the island — the remainder is government property and privately owned homes . . . .  Mr. Ellison now owns the [only] gas station, the car rental agency and the supermarket. He owns . . .  the two Four Seasons resorts, two championship golf courses, about 500 cottages and luxury homes, a solar farm, and nearly every single one of the small shops and cafes that line Lanai City. He owns 88,000 acres of overgrown pineapple fields and arid, boulder-strewn hills, thick with red dust, as well as 50 miles of beaches.

Sally Kaye, a former prosecutor . . .  wrote in an open letter to the new owner that was published by Honolulu Civil Beat, a news site. She described Lanai as an island that had “been owned and exploited by one really rich guy or another” for 150 years and whose residents live in a “medieval lord-of-the-manor system of control.”

Steve Clowney

Lovett on Rules v. Standards Debate in Louisiana Law

John Lovett (Loyola New Orleans) has posted  Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction (Louisiana Law Review) on SSRN.  Here's the abstract:

This article examines the design of legal directives found in and surrounding the Louisiana Civil Code through the prism of the classic rules versus standards debate. The Preliminary Title portion of the article introduces the vocabulary, descriptions and justifications typically displayed in jurisprudential debates over the propriety of rules and standards. Books One, Two and Three of the article analyze the extent to which several significant legal regimes in the Louisiana Civil Code — regimes that are likely to affect individuals in moments of personal crisis, when they enter into and exit from intimate personal relationships and when their love and loyalty to one another and to other intimate associates is most severely tested — have incorporated open textured standards as a primary form of rule design, have resisted discretionary remedialism by remaining tethered to relatively crystalline rules or have produced models of hybrid discretion.

Although the author originally expected to discover that Louisiana private law had largely embraced discretionary decision making within the realm of the Civil Code, punctuated with occasional moments of discretion skepticism, just as Niall Whitty has observed occurring in Scotland, the article’s analysis reveals that Louisiana has not evolved so decisively in the direction of standard based decision making models. Indeed, in the particular areas of private law examined (family law, co-ownership, and the inter-relationship between forced heirship and undue influence claims challenging wills), the author finds that Louisiana’s private legal order has only been partially transformed by the general trend toward discretionary remedialism that scholars like Whitty have observed occurring in other legal regimes. The article concludes by pointing to a number of additional concerns that should inform further scholarship examining whether Louisiana has assembled the proper mix of rules and standards.

Steve Clowney

The Boston Globe Asks, "Who Owns You After You Die?"

The Boston Globe describes an effort, spearheaded by Bill Cosby (no, seriously), to enact postmortem publicity rights in Massachusetts:

If the bill becomes law, people in Massachusetts—most notably those who, like Bill Cosby, have built up bankable personas over the course of their lives—will be able to treat their identities as pieces of property that continue to exist in the world long after they do. For 70 years after your death, according to the proposed bill, your identity will legally live on, and your heirs will be able to own it, or sell it, or sue anyone who uses it without asking.

This seems like a pretty terrible idea.  Is there any argument that it's public's interest to grant the already-extremely-rich extensive control over their personaes for 70 years after their deaths?  Someone needs to remind the legislature "that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it."  That's true even if the dead were excellent pitchmen for Jello pudding pops.

Steve Clowney

Borden & David on Sales of Church Property to Parishioners

Bradley Borden (Brooklyn) and Katherine David (Strasburger & Price LLP) have posted Sales of Church Real Property to Parishioners (Tax’N Exempts) on SSRN.  Here's the abstract:

This Article examines the rules that govern the taxation of sales of property from a tax-exempt entity to its members. The case law and rulings in this area focus on transfers from churches to parishioners, so the article adopts the focus as well. It reveals that if the sales do not make the tax-exempt entity a dealer in real property, any gain the tax-exempt entity recognizes should be excluded from unrelated business taxable income. If the tax-exempt entity is a dealer in real property, the sales may still be excluded from UBTI if the sales are related to the entity’s exempt purpose. Because the rules governing dealer classification do not provide a bright-line demarcation, the Article recommends that Tax-exempt entities that contemplate selling real property may consider a belt and suspender approach and, when possible, structure the sales to satisfy both exclusions.

Steve Clowney

Salkin on Green Energy and Local Land Use Regulation

Patricia Salkin (Touro) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation (Journal of Land Use & Environmental Law) on SSRN.  Here's the abstract:

This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.

Steve Clowney

Living Without Parking

Oregon Public Broadcasting looks at the rise of new apartment buildings in Portland that offer no offstreet parking.  The article explains that developers are constructing more parking-less buildings because of new demand, not any change in city parking policies. What's driving the demand?  First and foremost, affordability.  As one developer noted “Parking [on] site is the difference between a $750 apartment and a $1,200 apartment.” Second, Portalnd has a growing number of citizens who just don't own a car.

Steve Clowney

A Contender for Most Spiteful Father of 2012

Jezebel picks up on a really nasty T&E dispute coming out of New York.  According to the story, the late Frank Mandelbaum insisted in his will that his gay son had to marry a woman for that branch of the family to share in the inheritance.

Mandelbaum's son is attacking the gift in court.  His attorney writes, "Requiring a gay man to marry a woman . . . to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy. There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."

Steve Clowney