PropertyProf Blog

As if I needed another reason to love cemeteries

I don't know what to say about the idea that the lichen which grow on gravestones in the Northeast are biologically immortal. 

That's.  Just.  Poetically.  Awesome.

(By the way, anybody recognize the cemetery in the above picture?  I'm channeling Al Brophy.)

Tanya Marsh

You Can't "Buy" a Green Card, But....

...if you have $500,000 to invest in a commercial enterprise in a targeted employment area ($1,000,000 in a non-targeted area), and plan to create at least ten permanent full time jobs for qualified US workers, then you may be in luck.

The New York Times has a story about the EB-5 Immigrant Investor visa program today, and the investment that it has spurred in a remote part of Vermont, described by the developer as the "biggest economic development project Vermont has ever seen."  Promising to create 10,000 new jobs, the price tag on the construction spree is $865 million. 

What's really interesting is how the project got financed.  The lead developers are investing $90 million, and they have raised $275 million for the first phase of the project from 550 foreign investors in 60 countries.  Phase II will require an additional 1,000 investors willing to invest $550 million.  Those investors are seeking a green card through the EB-5 Immigrant Investor program. Around since 1990, the program has been particularly popular with hotel developers since the financial crisis put a crunch of commercial real estate loans in 2008.  Developers particularly appreciate that EB-5 investors are focused on more than the profitability of the project.  As one observer put it bluntly:  “Foreigners are buying visas and are much less concerned about the rate of return they earn on their investment,” said David Loeb, a senior analyst at Robert W. Baird.

Although the program is not limited to investments in real estate, investments in commercial real estate have been a popular mechanism for gaining the EB-5 visa.  Companies have sprung up to help vet real estate investments and assist potential investors in navigating the process.  For example, one company advertises on its website: "American Life offers secure real estate investments to local and immigrant investors ... You make an investment that also qualifies for an EB-5 immigrant visa and we provide the necessary services and information required to obtain your U.S. green card."

The creative financing employed by the Vermont developers is still fairly unusual, but the program that they are leveraging has been growing rapidly.  According to the Times, in 2006 the government issued 802 EB-5 visas.  In 2011, it issued 7,818.  There is an annual limit of 10,000 EB-5 visas.

So, if you have always wanted a U.S. green card and have an extra $500,000 or $1,000,000 lying around, you probably want to act quickly in 2013 before the EB-5 visas run out. 

Tanya Marsh

Map of the Day: Census Dot Map

Brandon Martin-Anderson, a graduate student at MIT, thought that roads, state borders, and topographical features cluttered otherwise informative maps of population density in the USA.

In response he took block data from the 2010 Census and converted the USA's population into points on a map. That's right: The map shows one point for every person in the country, and nothing else.  The result is very cool:

The original, full map on Martin-Anderson's website is fully zoomable down to .  Check it out here.

Steve Clowney

(HT: Gizmodo)

Gallanis & Gittler on the Inheritance Rights of Caregivers

Thomas Gallanis (Iowa) & Josephine Gittler (Iowa) have posted Family Caregiving and the Law of Succession: A Proposal (Michigan Journal of Law Reform) on SSRN.  Here's the abstract:

As the American population ages, the need for long-term care, already great, will become even greater. Some of this care is paid for by government programs, such as Medicaid, and by individual long-term care insurance policies. But the combination of the public fisc and private insurance are, and will continue to be, insufficient to pay for all of the care our seniors and adults with disabilities need. The provision of care in a family residence by one or more family members is an important component of our health care delivery system and must be supported and encouraged by public policy and law. As experts in the law of estate planning and health care, respectively, we address in this Article the following question: How might the American law of succession realistically recognize, support, and promote family caregiving? Our answer is a pragmatic proposal that can be adopted into the Uniform Probate Code (UPC). We propose a modified elective share for a family member who has provided the decedent with substantial uncompensated care in a family residence. (In this context, “family member” excludes the decedent’s surviving spouse, because the UPC already provides a spousal share.) Our approach contrasts with the prevailing law in the U.S., which treats personal services rendered by family members as gratuitous, hence not compensable. The scope and amount of the caregiver’s elective share can be structured by way of analogy to the surviving spouse’s elective share, though with important differences, as we discuss herein.

Steve Clowney

Top Preservation Victories of 2012

The National Trust for Historic Preservation names its "Ten Remarkable Preservation Wins of 2012."  The list includes the Cesar Chávez National Monument (Keene, CA), the Howard Theatre (Washington, DC), and the Phillips 66“The Flying Saucer” Gas Station (St. Louis, MO).

Steve Clowney

Tyson on Involuntary Annexation

Christopher Tyson (LSU) has posted Localism and Involuntary Annexation: Reconsidering Approaches to New Regionalism (Tulane Law Review) on SSRN.  Here's the abstract:

"Involuntary" annexation - the ability of cities to expand their territory unilaterally by extending their boundaries - is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to "localism," the belief in small, autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of "New Regionalism," a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person's perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.

Steve Clowney

Mann on the Mortgage Interest Deduction

Roberta Mann (Oregon) has posted Housing & the Mortgage Interest Deduction (Book Chapter) on SSRN.  Here's the abstract:

The deduction for qualified residence interest (QRI) is the second largest individual tax expenditure, after the exclusion for employer provided health insurance. While homeownership has long been viewed as a social good, the QRI deduction has faced criticism. Commentators have argued that it is not consistent with the structure of the income tax system; it is economically inefficient, skewing investment towards private residences; it is inequitable, discriminating against low income people (a group that may disproportionately include people of color), and certain religious minorities; and it is environmentally unsound, encouraging sprawl, excessive energy use, and inefficient transportation choices. In late 2008, the entire world reeled from a global economic crisis, which started with a housing bubble inflated by excessive debt facilitated by subprime mortgages and spread around the economy by mortgage backed securities.

Assuming that homeownership provides useful societal benefits, this chapter will explore how the tax system could create incentives for homeownership while avoiding the problems of the QRI deduction. The chapter will examine options including adding a homeownership benefit to the standard deduction, creating a refundable housing credit, providing a deduction for contributions to a housing savings account, and including a shelter credit available for renters and homeowners alike. The chapter will also address whether the housing benefit should be linked to debt financing. The ideal benefit would be equitably distributed, would not unduly influence housing prices, would not encourage excessive debt, and would respect environmental as well as social goals.

Steve Clowney

Sherman's Christmas Gift to Lincoln

Slate highlights this historical gem.  In the winter of 1864 Willima Tecumseh Sherman presented Lincoln with the City of Savannah as a Christmas present.  Sherman's telegram, dated December 22, reads “I beg to present you as a Christmas gift the city of Savannah with 150 heavy guns and plenty of ammunition and also about 25,000 bales of cotton.”  According to Slate, "The brief message came as a huge relief to Lincoln, who had been out of touch with Sherman for several weeks, since the major general had embarked from Atlanta on his March to the Sea."

Steve Clowney

The Largest Private Land Owners in America

CNBC lists the five largest landowners in the U.S.A.:

1. John Malone The cable tycoon has 2.2 million acres stretching from Wyoming to Maine. One of his crown jewels is the Bell Ranch, a 290,100-acre cattle empire.

2. Ted Turner The media magnate has 2 million acres in Nebraska, New Mexico and other states. He is a strong advocate of wildlife conservation.

3. The Emmerson family This low-profile family holds 1.8 million acres through Sierra Pacific Industries, the nation's second largest lumber producer.

4. Brad Kelley The reclusive billionaire, who drives a pick-up truck and made his money from discount cigarettes, owns about 1.5 million acres and uses much of it for cattle ranching.

5. The Irving family The Canadian forestry family behind J.D. Irving Inc. owns 1.2 million acres in Maine and other locations. This year alone, J.D. Irving will plan 30 million seedlings.

Steve Clowney

Jaworski on Locke's Labour Theory

Peter Jaworski (Georgetown - Business) has posted The Metaphysics of Locke's Labour View (Locke Studies) on SSRN.  Here's the abstract:

This paper is an evaluation of John Locke's labour theory of property. Section I sets out Locke's labour view. Section II addresses several possible objections, including against the conceptual coherence of Locke's argument, against the metaphysical implications of his view, as well as foundational criticisms of the moral significance of labour and of my relations with objects that are grounded in labour under certain conditions and circumstances. I attempt to address each of these criticisms in a Lockian spirit, which will require strange metaphysical moves. The final Section raises further objections that are more significant because they cannot be squared with the labour view.

Steve Clowney

Nationalization and De-Nationalization in the Mortgage Industry

Back in 1938, the Roosevelt Administration, in order to save the housing finance industry, created a federal agency called the Federal National Mortgage Association.  The FNMA got banks lending to home buyers by agreeing to purchase the loans from the banks, so long as the loans met certain quality standards.

It was a smashing success!  The banks made high quality loans to borrowers (20% down payment, fixed rate, roughly 30% debt-to-income ratio), then sold the loans on the secondary market to the FNMA, and housing boomed.  By the 1960s, the FNMA owned about 80% of all the home loans in the United States.

But wait!  The federal government owned about 80% of all private home loans in the United States?  Wasn't that a little, well . . . socialist?  Couldn't private industry do it instead?  Yes, indeed.  So in 1968 the federal government did something unprecedented: it privatized an entire federal agency.  The agency became Fannie Mae, with a public offering and everything.  In return for certain tax advantages, it had certain obligations to the federal government, but it was a private entity.  And soon it was competing with other private entities purchasing loans on the secondary market, all of whom were securitizing those loans and selling the securties --  mortgage-backed securities.  Those entities were competing for loans, so they couldn't be too picky about quality any more. 

Fast forward to 2008.  Remember that old LendingTree ad, "When Banks Compete, You Win!"?  We all found out that was true -- so long as by "win" we meant "live in economically disastrous times."

Suddenly, things were a lot like 1937 again: the housing finance industry was dead.  Banks weren't lending -- it was too risky, since borrowers couldn't repay their loans and third parties wouldn't buy mortgage-backed securities.  How could the industry be revived?

Fannie Mae, on the verge of failure, was re-nationalized.  Quality standards were imposed, mortgages were acquired and re-financed with an assist from the federal government, and banks could make loans and sell them to Fannie Mae.  Extremely slowly, haltingly, the housing finance industry began to revive. 

Back in 2008, I predicted this would happen.  It didn't take a genius, that's for sure.  As I wrote back back then (Nationalization, De-Nationalization, Re-Nationalization), we have a history of nationalizing, de-nationalizing and re-nationalizing lending in the United States.  We tend to nationalize in a crisis, ending the crisis, then de-nationalize because of our ideological preference for a laissez-faire market system . . . which leads eventually to a crisis . . . repeat.

All that had to happen in 2008 was that history needed to repeat itself, and that was the path of least resistance.  But, it also seemed likely that, if it worked -- if the re-nationalized Fannie Mae got the housing finance industry stabilized -- then it wouldn't be long before someone realized that the federal government owned a huge protion of the home loans in the United States and that would seem a little, well . . . socialist.  Therefore, as soon as the program was successful, people would want to get rid of it.

The superb news site ProPublica, as part of its series on the housing crisis, is running a very interesting article entitled, We’ve Nationalized the Home Mortgage Market. Now What?  It makes the point that suddenly things look alot like 1968 again: 9 out of 10 home loans in the U.S. today are backed by the federal government through Fannie Mae.  The chart below, from the article, shows the percentage of home loans backed by the federal government.

What happens next?  Well, if history is any guide, the cycle will continue.  We will de-nationalize the industry, until the next crisis; then we will re-nationalize the industry to solve the crisis; then we will wonder why an industry that could be private is nationalized, so we will de-nationalize it . . . etc. etc.

Mark A. Edwards

 

 

 

 

The Priciest Celebrity Homes on the Market

Forbes magazine takes a look at the most expensive celebrity homes currently on the market:

Los Angeles’ Platinum Triangle – comprised of Beverly Hills, Bel Air and Holmby Hills — is where the kind of glitterati who escape to Malibu Colony on the weekends have their main digs. Homes in the Triangle boast the most precious celebrity amenity: privacy. There are two types of properties there: multi-acre estates situated down long driveways behind tall hedges, and side-by-side mansions located in guard-gated developments.

Steve Clowney

(Image: Frank Sinatra's $12 million home for sale in Chatsworth, CA)

Blumm & Paulsen on the Public Trust in Wildlfe

Michael Blumm (Lewis & Clark) and Aurora Paulsen (Lewis & Clark) have posted The Public Trust in Wildlfe on SSRN.  Here's the abstract:

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine — sovereign ownership of wildlife — is also an ancient public property doctrine inherited from England. State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This paper claims that these two doctrines should be merged, and that state sovereign ownership of wildlife means that wildlife — like navigable waters — is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states with the authority to manage their wildlife populations but also the duty to do so and would equip members of the public with standing to enforce the states’ trust duties in court. This paper shows that the public trust in wildlife has already been employed in California and in several other states, and suggests that it deserves more widespread judicial recognition, particularly — as we demonstrate — that no fewer that no fewer than forty-seven states use trust or trust-like language in describing state authority to manage wildlife. We include an appendix citing the sources of the wildlife trust in all forty-seven states for reference.

Steve Clowney

Did Abraham Lincoln have the Authority to Free the Slaves?

James McPherson, America's preeminent historian of the Civil War, has penned an essay that examines the history and meaning of the Emancipation Proclamation.  In the second half of the piece, McPherson takes head-on the "accusation that Lincoln 'freed' the slaves in areas where he had no power, and left them in slavery where he did have power."

Nothing could be more wrong. For one thing, tens of thousands of ex-slaves lived in parts of the Confederacy that were occupied by Union forces but were not exempted from the proclamation. They celebrated it as their charter of freedom. For that matter, so did many slaves in exempted areas, which included the four slave-holding states that never left the Union (Missouri, Kentucky, Delaware, and Maryland) as well as Confederate areas that had been returned to Union control, such as New Orleans and the forty-eight Virginia counties that would soon become West Virginia. They recognized that if emancipation took hold in the Confederate states, slavery could scarcely survive in the upper South.

The proclamation officially turned the Union army into an army of liberation—if it could win the war. And by authorizing the enlistment of freed slaves in the army, the final proclamation went a long step toward creating that army of liberation. If the Emancipation Proclamation was merely a piece of paper that did not actually free anyone, as skeptics then and later charged, the Declaration of Independence was likewise a mere piece of paper that did not in itself create a new nation. Both outcomes depended on victory in a war to which these documents gave new purpose.

Steve Clowney

HT: The Daily Dish

Gaughan on The Taking of Robert E. Lee's Home

Anthony Gaughan (Drake) has posted The Arlington Cemetery Case: A Court and a Nation Divided (Journal of Supreme Court History) on SSRN.  Here's the abstract:

In May 1861, the United States Army seized the Virginia home of Confederate General Robert E. Lee and his wife, Mary Lee. During the Civil War, the Lincoln Administration converted the estate into a refugee camp for runaway slaves and a military cemetery, a burial ground that is known today as Arlington National Cemetery. In December 1882, seventeen years after Lee surrendered at Appomattox, the United States Supreme Court ruled that the federal government had unlawfully seized the Arlington estate without paying just compensation to the Lee family. It further held that the doctrine of sovereign immunity did not bar the Lees from bringing suit to vindicate their legal title to the property. In the aftermath of the Supreme Court’s ruling, Congress reached a settlement agreement with the Lee family. Arlington National Cemetery has remained the lawful property of the United States ever since. The Supreme Court’s ruling in United States v. Lee made clear that the Constitution is not suspended in wartime. At all times, legal and constitutional limits govern the exercise of official power. This article tells the story of United States v. Lee and places the case in historical context.

Steve Clowney

The Fate of Land in the West Bank

The New York Times takes a look at the future of E1, a heavily contested piece of land on the borders of East Jerusalem:

Israel sees E1, only 4.6 square miles and largely rocky desert, as the stone in the arch that connects East Jerusalem, which Israel has annexed, to Maale Adumim, one of the biggest of the so-called settlement blocs, with a population of 40,000. Israel says it intends to keep Maale Adumim in any peace settlement, hoping to swap land with any future Palestinian state. In fact, it was Yitzhak Rabin of the Labor Party who in 1994 attached E1 to the municipality of Maale Adumim.

For the Palestinians, E1 is seen as essential if they are ever to achieve a viable independent state with East Jerusalem as their capital. Palestinians say they need the land to preserve a workable, practical connection between East Jerusalem and the West Bank, and to build housing for Palestinian refugees and their descendants. As important, the Palestinians contend, E1 is central to a crucial north-south route through the West Bank from Ramallah to Bethlehem.

Steve Clowney

Medema on the History of the Coase Theorem

Steven Medema (Colorado Denver - Econ) has posted Debating Law's Irrelevance: Legal Scholarship and the Coase Theorem in the 1960s on SSRN.  Here's the abstract:

This paper examines the diffusion of Coase’s negotiation result -- now better known as the 'Coase theorem'--in the legal literature during the 1960s, with particular attention paid to the challenge that this result posed for received legal thinking, how the it related to far older attempts to bring economic thinking to bear on the law, how legal scholars utilized it in their analysis, and how the treatment of this result by legal scholars compares to that accorded it by economists during this formative stage in the Coase theorem’s history. What will emerge, in the end, is an enhanced understanding of how the Coase theorem came to have a place in legal scholarship, as well as some additional insight into this neglected epoch in the history of the economic analysis of law.

Steve Clowney

Detroit Attacks Vacant Property with Arugula

Detroit has taken a unique and aggresive approach to address the plague of vacant and abandoned property within its borders.  Last week, the city council agreed to sell 140 acres on the east side of town (1,500 city-owned plots) to John Hantz, an urban agriculture entrepreneur.  Opponents worry that Hantz got a sweatheart deal that will crowd out other, smaller urban agriculturalists:

Despite strong opposition from a coalition of urban farmers, community activists and local residents, Detroit City Council Tuesday approved the controversial Hantz Woodlands land deal. Under the proposed agreement, the city will sell roughly 140 acres the land to Hantz Woodlands, a division of the Hantz Farms, at slightly over 8 cents per square foot, provided they maintain the land, demolish a number of derelict buildings and plant 15,000 trees.

 

Steve Clowney

Garnett on Transect Zoning

Nicole Garnett (Notre Dame) has posted Redeeming Transect Zoning? (Brooklyn Law Review) on SSRN.  Here's the abstract:

Thanks to the growing influence of the new urbanists, transect zoning” is becoming the zoning reform du jour. This alternative to zoning traces its origins to architect Andrés Duany’s 2003 SmartCode, which proceeds upon the assumption that urban development naturally proceeds from more-dense areas to less-dense ones. Duany calls this progression the “transect” and urges cities to replace traditional use zoning with regulations on building form appropriate to the various “transect zones” along the progression. Over the last decade, increasing numbers of jurisdictions (large and small) have adopted “transect zoning” laws and the “form-based” codes that accompany and supplement them. Theoretically, transect zoning embraces a relatively simple conception of how to regulate urban development: buildings that are appropriate for the city center should go in the city center (regardless of their use), and suburban buildings should look suburban (again, regardless of their use). In its implementation, however, transect zoning is anything but simple. As a practical matter, the new urbanists favor meticulous and exhaustive aesthetic regulations, found in the form-based codes that represent the ubiquitous gap-fillers in transect-zoning regimes. This Essay begins by briefly describing the rapidly evolving phenomenon of transect zoning and its companion, form-based coding. It then discusses four concerns raised by the current uses of both devices as public land-use-regulatory devices. The Essay concludes by suggesting that form-based codes may be most appropriate in situations approximating the private-development context rather than as a public regulatory.

Steve Clowney

The Wheels of Restitution Turn Slowly, If at All

Two weeks ago a conference was held in Prague on the restitution of property expropriated from Jews in Europe during the World War II era.  The conference came three years after another remarkable conference in Prague produced a document known as the Terezin Declaration, by which 47 countries agreed to facilitate the restitution of, or compensation for, property expropriated from Jews (the Declaration was named after the Terezin concentration camp outside of Prague, where tens of thousands of Jews, and in particular Jewish children, were held before being shipped to death camps further east). 

Entry to part of the Terezin complex

Despite that commitment, the recent conference found that progress has been uneven at best.  Restitution is particularly difficult with regard to two types of property -- immovable (essentially real property in the common law tradition) and communal.  The restitution of immovable property is notoriously difficult.  Often, that property is now in the possession of people who committed no wrongs themselves, other than continuing to benefit from the wrongs committed by others (we in North America should have no trouble identifying with that difficulty).  Communal property was often held by rural Jewish communities, and restitution claims for it inherently involve questions of standing.  And, with each day that passes, restitution and compensation become less likely, as current occupiers feel less connected with the past wrongs.   

I've written a lot about the race against time for the viability of restitution claims.  Restitution claims are undermined by a paradox.  It takes time for a society to willingly acknowledge it responsibility for a wrongful dispossession of property rights.  But during that time, the moral strength of claims fade and the practicality of restitution becomes infinitely more complex.  In other words, by the time restitution claims are socially and politically viable, they are often no longer morally and practically viable.  That may help explain the uneven progress made despite the good intentions of the Terezin Declaration.

Mark A. Edwards