PropertyProf Blog

Selling Hurricane Damaged Property "As Is"

The N.Y. Times looks at attempts to market and sell properties in the hurricane ravaged Rockaways area.

The buying and selling of homes in the Rockaways slammed to a halt right after Hurricane Sandy, but a few homes and plots of land are on the market today. And while under more normal circumstances, properties put up for sale are buffed and polished to their highest possible shine, many of the most badly damaged homes are being offered to buyers more or less as the hurricane left them.

“People ask me, ‘Should I fix my house and then put it up?’ But I don’t know if the value will be there. So I say let’s put it up as is, and let’s see what happens.”  One such experiment is 135 Beach 142nd Street, a house of pale yellow brick built right on the ocean, which is listed for $3 million. It has spectacular open views of the water, which can still take your breath away — but most of the walls on the side of the house that faces the water have been torn off, leaving a jagged, gaping hole.

Steve Clowney

Ligatti on Tenant Hoarders and the Fair Housing Act

Chris Ligatti has posted Cluttered Apartments and Complicated Tenancies: A Collaborative Intervention Approach to Tenant 'Hoarding'under the Fair Housing Act (Suffolk Law Review) on SSRN.  Here's the abstract:

This article briefly describes the Fair Housing Act and the Fair Housing Act Amendments of 1988 and the problem of tenant hoarding in society and under the law. This article discusses the problem of hoarding, its current classification in the medical field, and the possibility of the use of reasonable accommodation law to assist tenant hoarders. This article will conclude that reasonable accommodations for tenant hoarders are unlikely to be successful without a collaborative approach from the social services, medical, and legal fields.

Steve Clowney

What Should the City of Austin Do With All the Stuff Named After Lance Armstrong?

A conversation begins in the nation's fastest growing city:

The marks of Armstrong are all over downtown Austin, from Mellow Johnny’s Bike Shop (maillot juane — yellow shirt) to the Juan Pelota  — Johnny One-Ball — Cafe. And then there’s the Lance Armstrong Bikeway, which runs down Cesar Chavez St down by the river on the city’s southern downtown side.

Mayor Lee Leffingwell has consistently said that he has no plans to rename it, and after Armstrong’s interview aired on Oprah Winfrey’s network last night, he issued a statement reiterating that position.

[But] It’s a path that commemorates a cheater, and a particularly devious and evil cheater. All seven of his Mellow Johnnys are tainted and have been stripped. Armstrong built the sport of cycling in central Texas and across America with his story of overcoming all odds to become a champion. He has now destroyed that sport and its reputation for a generation. Armstrong destroyed the reputation of anyone who dared to expose him, with smears and lawsuits. The very cancer that Mayor Leffingwell cites in his statement is probably Armstrong’s own fault, a side effect of his doping.

Steve Clowney

Map of the Day: Everybody Is Rooting for the 49ers

A county-by-county map of which Super Bowl team has the most "likes" on Facebook:

Steve Clowney

Is a Seller Required to Disclose a Home's Bloody Past?

Yahoo! News picks up on a case bubbling up through the Pennsylvania courts:

A Pennsylvania woman has appealed to the state Supreme Court in her suit against a home seller and real estate agent who failed to disclose that a murder-suicide had taken place in the home she purchased.

When Janet Milliken, 59, moved from California after her husband died, she had hoped to start a new life with her two teenage children in Pennsylvania near her family. She bought a home in Thornton, Pa., for $610,000 in June 2007. She learned a few weeks after she moved in from a next-door neighbor that a murder-suicide had occurred the year before in her home.

She sued the seller and the real estate agent for fraud and misrepresentation, saying they made a "deliberate choice not to disclose the home's recent past," according to a court document. The trial judge granted summary judgment in favor of the defendants, saying state law does not require agents to disclose such events.

Steve Clowney

Prum on Construction Lending for Green Buildings

Darren Prum (Florida State) has posted Greenbacks for Building Green: Does a Lender for Sustainable Construction Projects Need to Make Adjustments to Its Current Practices? on SSRN.  Here's the abstract:

In the development of real property, the availability of money to secure construction resources becomes an important factor for success. The construction loan plays a central role in providing funds to erect a building on real property, but a lender faces numerous exposures that might result in a loss. In evaluating a project to determine its viability and to uncover any exposure it might present, a lender will conduct an extensive underwriting review process and will use mitigation techniques through the construction loan agreement and disbursement requirements to reduce the perceived risks to an acceptable business level, for those developments deemed worthy. With the recent transition into more sustainable construction practices, many lenders will fail to recognize that the construction of a green building differs from a traditional one. The meaningful distinctions between these different methods merit an evaluation of their own in order to properly assess and manage the risk associated with a construction loan for a green building. Accordingly, this article seeks to address the unique issues associated with a construction loan for a green building and provide solutions that can mitigate the exposures presented to acceptable levels.

Steve Clowney

A Free-Market Island Utopia in Detroit?

The return of the enterprise zone:

As the broken city thinks big and radically about its future, a developer is stepping forward with a revolutionary idea: Sell the city's Belle Isle park for $1 billion to private investors who will transform it into a free-market utopia. The 982-acre island would then be developed into a U.S. commonwealth or city-state of 35,000 people with its own laws, customs and currency.

Under the plan, it would become an economic and social laboratory where government is limited in scope and taxation is far different than the current U.S. system. There is no personal or corporate income tax. Much of the tax base would be provided by a different property tax — one based on the value of the land and not the value of the property.

It would take $300,000 to become a "Belle Islander," though 20 percent of citizenships would be open for striving immigrants, starving artists and up-and-coming entrepreneurs who don't meet the financial requirement.

Steve Clowney

Lewinsohn-Zamir on Monetary Versus In-Kind Remedies

Daphna Lewinsohn-Zamir (Hebrew University) has posted Can't Buy Me Love: Monetary Versus In-Kind Remedies (Illinois Law Review) on SSRN.  Here's the abstract:

The choice of appropriate remedies is a major concern in all legal spheres, yet little has been done to determine which remedies people actually prefer. Scholarly debates on this issue are typically based on theoretical arguments and intuitions rather than experimental or empirical data. It is often assumed that people are indifferent between in-kind and monetary remedies of equal pecuniary value. Consequently, some scholars have argued, for instance, that people ordinarily view a contractual obligation as an option to either perform in-kind or pay expectation damages.

This Article challenges the conventional wisdom that monetary remedies are usually a satisfactory substitute for in-kind redress. It presents new experiments that examine the choices laypersons and experienced businesspeople make between remedies and entitlements. The findings establish that members of both groups strongly prefer in-kind entitlements and remedies over monetary ones. For example, they would rather be given the very thing to which they were entitled than receive a monetary substitute, however accurately calculated. It is therefore possible that damages routinely fail to provide adequate compensation, even when they pertain to fungible, easily quantifiable assets.

Since promoting individuals’ welfare is a major concern for legal policy-making, ignoring the preference for in-kind redress may lead to both inefficiency and unfairness. The Article offers various normative implications of the experimental findings, through the discussion of such in-kind remedies as specific performance of contractual obligations, injunctions for wrongful interference with property, compensation in development rights for takings of land, and apologies in defamation cases.

Steve Clowney

Crowdfunding for Real Estate Development

Businessweek reports this week that NYC real estate developer Prodigy Network is experimenting with crowdfunding as means of financing real estate development.  Rather than investing in a pool of funds that finance many developments, individual investors will purchase shares of a particular development, and be entitled to a share of rents and appreciation.  Prodigy used the model successfully in Colombia to develop the nation's tallest skyscraper, but it hasn't been tried in the United States until now.  Prodigy intends to use crowdfunding to raise $26M (of about $90M it needs) to buy and improve 84 William Street in Manhattan.

Crowdfunding is all the rage in the start-up world.  The mortgage and foreclosure crisis put a serious dent in the availablity of real estate financing in the United States.  It will be interesting to see whether the crisis has left a hole in the market that crowdfunding can fill, and whether it will be a durable solution.  Any thoughts?

Mark A. Edwards

 

Florida Condo Tests Dog Poop DNA

And you thought your homeowners association was crazy:

Need proof that the rich really aren’t that different from you and me? How’s this — they don’t pick up their dog’s poop when they think no one is looking, either. No, not even when they’re only walking their dog on the turf at their luxury condo. That’s why a condo community in Florida is making residents enter their dog’s DNA into a new genetic database that will be used to match a poop to a pooch and identify which owners aren’t cleaning up after their pets. Which is really nice to hear, because you know once resources start being devoted to things like this, we’ve clearly solved the big problems like world hunger, and can now put science to work on the really important issues of our age.

Steve Clowney

Conference News: Association for Law, Property and Society

Here's the announcement:

The ALPS 4th Annual Meeting, http://www.alps.syr.edu/meetingsandconferences.aspx, will be held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract over 100 participants, approximately one third of whom come from outside of North America and a number of whom do interdisciplinary work. 

Registration and paper/panel submission is available through the conference website or directly at http://www.regonline.com/Register/Checkin.aspx?EventID=1158517. The deadline for submitting papers and panels is March 1, 2013, but registration for the conference will continue to be available after that date. Please do not submit papers and panels after March 1, 2013 as part of your registration without having emailed Hari Osofsky, [email protected] for permission to submit late. We will do our best to accommodate late submission requests, but can only guarantee that proposals submitted by the March 1, 2013 deadline will be able to be considered for the conference. 

This year’s registration includes an option to register to attend without presenting and an option to submit complete panels in addition to individual papers. As in previous years, we will have both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship at its beginning stages. We also plan to support early-career scholars in their development and in connecting to mentors through the conference events. A discounted early registration rate of $145 is available until March 1, 2013; after that date, the registration rate is $175.

Steve Clowney

News Conference: Legal & Policy Pathways for Energy Innovation

The announcement:

The University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life Sciences welcomes submissions of papers or complete panels for its April 24–25, 2013, conference on Legal & Policy Pathways for Energy Innovation. 

This conference at the University of Minnesota will bring together leading scholars, practitioners, policymakers, and business people to discuss how to make critical progress on energy law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities. 

The conference goal is to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. First, we do not have the legal, institutional, or physical infrastructure to transition to cleaner energy sources. Second, we do not have effective governance strategies for complex, multi-level problems that predominate at the intersection of environmental and energy law. Third, the relevant law results in low-income communities of color disproportionately bearing the environmental burdens of our energy and other industries without reaping the benefits of clean, low-cost energy or open space. Fourth, many U.S. metropolitan areas lack effective regional approaches to land-use, power, and transportation and suffer from dysfunctional dynamics between core cities and their suburbs and exurbs. 

Please submit proposals (1 page or less) to [email protected] by March 1, 2013.  Proposals should include: —the names and email addresses of the submitter/s —the title of the proposed paper or panel —a brief description of the paper or panel and which of the four streams the proposal connects to: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities. It is fine if it connects to more than one.  Please contact Prof. Hari Osofsky at [email protected] for more information.

Steve Clowney

New York City Unveils Winner of Tiny Apartment Contest

Fun.

The city on Tuesday unveiled the winner of a competition to design and build an apartment tower on city-owned land composed entirely of micro-units, 55 homes the size of hotel rooms that Mayor Michael R. Bloomberg hopes will be the first in a wave of tiny apartments aimed at addressing the city’s shortage of studio and one-bedroom apartments.

Small as it might be, the winning design was chosen for the way that it maximized light, airiness and storage space through the use of 9-foot-high ceilings, large windows, lofts and Juliet balconies.

Steve Clowney

Perpetual Conservation Easements Conference

On February 15,the University of Utah College of Law is hosting a conference entitled, Perpetual Conservation Easements: What Have We Learned and Where Should We Go From Here?. Those unable to travel to Salt Lake City can watch the live webcast of the event on ulaw.tv.  Here's the announcement: 

The public is investing billions of dollars in conservation easements, which now protect more than 18 million acres throughout the United States. But uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as land protection tools. This conference will explore these issues, with the goal of minimizing abuse and helping to ensure that conservation easements actually provide the promised conservation benefits to the public over the long term. Leaders in their respective fields will address (i) the federal tax incentives offered with respect to easements donated as charitable gifts to certain qualified holders, (ii) the state conservation easement enabling statutes, (iii) federal and state oversight of charities, and (iv) the role of state attorney general offices in the charitable sector and in the protection of charitable assets on behalf of the public. For more information and a detailed agenda see Perpetual Conservation Easements.

Steve Clowney

Asset Forfeiture Abuse

From Volokh: John Ross of Reason has a nice article outlining the problem of asset forfeiture abuse, as illustrated by the scandalous practices in the nation’s capital:

Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.

Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt....

Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.

Ilya Somin has previously covered this topic here.

Steve Clowney

 

Should an Unsatisfied Condo Owner Ever Stop Paying the Assessment Fee?

The Chicago Tribune's real estate expert offers his opinion in the case of a condo owner subjected to awful noise from a nearby elevator:

No! No! No! I cannot under any circumstances recommend that any homeowner in a community association, whether that be a condominium, a cooperative or in a homeowners association, withhold the assessment.

There are several reasons. First, you admit that this problem has been plaguing you for several years. If you suddenly decide to withhold your association assessments, I seriously doubt that a judge would be sympathetic. More importantly, as soon as you are delinquent, I suspect your association will start collection efforts, which can include filing a lawsuit against you. Once again, while you may have a legitimate concern, case law throughout this country makes it clear that a homeowner has an obligation to pay his assessment, regardless of any problems that the homeowner has.

Steve Clowney

Map of the Day: Oh My God, It's Full of Stars

Stéphane Guisard, who works the Paranal Observatory in Chile, has put together a mind-bending map of the center of the Milky Way galaxy.  It's huge (24,000 x 14,000 pixels).  And it's fully zoomable.

The vast number of stars in this picture (of a small corner of one galaxy) is enough to completely melt your brain.

Check out the map right here.

Steve Clowney

(HT: Slate)

Property as Short Story

A short story about property, the bundle of sticks, pink flamingos, rule lawyering, & homeowners associations.

Steve Clowney

(HT: Rebecca Tushnet)

Lawton on Tenant Purchases & Affordable Housing

Julie Lawton (DePaul) has posted Tenant Purchase as a Means of Creating and Preserving Affordable Homeownership (Georgetown Journal on Poverty Law Policy).  Here's the abstract:

For a number of years, the federal government and various local jurisdictions have struggled with the most effective means of producing more units of affordable housing. This article proposes an affordable housing production model that enables tenants to purchase their single-family homes and multifamily apartment buildings based on a tenant purchasing program prevalent in Washington, D.C.

Throughout the years, Washington, D.C., like many jurisdictions, has tried various measures to create and preserve affordable housing and make homeownership affordable to more residents. One of the most productive programs created to produce and preserve units of affordable housing in Washington, D.C. is the program known as the Tenant Opportunity to Purchase Act (TOPA). Generally, TOPA requires that a landlord owning residential property in Washington, D.C. must first offer the tenants residing in that property the opportunity to purchase it before selling that property to a third-party. The tenants then have the right to: (i) maintain the property as a rental owned by either the tenants or a private developer chosen by the tenants, (ii) purchase the property and convert it to a market rate or affordable condominium or cooperative, (iii) sell their rights to purchase the property to any entity the tenants choose for any value negotiated by the tenants, or (iv) ignore their TOPA rights altogether. TOPA helps prevent the loss of affordable housing units to the private market, promotes resident engagement and control in the development of the resident’s neighborhood, promotes private investment in preserving affordable housing, enables residents — specifically low- and moderate-income residents — to participate in the wealth creation from the property sale, and creates homeownership opportunities for low- and moderate-income residents who might otherwise be priced out of an expensive real estate market.

I represented tenant groups in Washington, D.C. in the purchase, renovation, and conversion of their multi-family apartment buildings for many years and experienced TOPA’s ability to facilitate the preservation of affordable homeownership in gentrifying neighborhoods, to empower low- and moderate-income residents in influencing the redevelopment of their neighborhoods, and to provide wealth creation for the tenants who were able to successfully purchase their properties in a manner that preserved affordability. Other jurisdictions should consider a law providing some form of tenant purchase rights to residents of multi-family properties to help create and preserve affordable housing. This article seeks to provide those jurisdictions with an in-depth review of TOPA, its benefits, and some suggested areas of improvement. This article also seeks to provide Washington, D.C. with a rare scholarly review of TOPA by someone who worked closely on TOPA policy, business, and legal issues for a number of years.

Steve Clowney

Zoning Makes Brooklyn Expensive

Stephen Smith argues that zoning rules have kept Brooklyn expensive:

[N]orthern Brooklyn is underdeveloped. The hip neighborhoods around the L train, the main vehicle of gentrification in Williamsburg and Bushwick, are less than half as dense as Brooklyn neighborhoods like Crown Heights and Bed-Stuy.

Because the amount of housing in the neighborhood is effectively capped through zoning, demand has spilled out of the neighborhood much faster than it would have if Williamsburg had been allowed to grow.

Steve Clowney