PropertyProf Blog

The Effect of "Disorderly Behavior" Ordinances on Victims of Domestic Violence

Sarah Goodyear looks at how municipal nuisance ordinances that target "disruptive" tenants can impact the victims of domestic violence:

Imagine that you are being attacked by your abusive former boyfriend in your own home, where you are raising your three-year-old daughter. Your life is in danger.

But if you call the police, you know you might be evicted, because the law in your community requires landlords to throw tenants out if cops come to the home three times within a four-month period for "disorderly behavior."

The last time your 21-year-old daughter called the cops, they came and they told you, "You are on three strikes. We’re gonna have your landlord evict you." And so you stopped calling. Soon the boyfriend – with whom you’ve been trying to break up – saw his chance to move back in and continue his abusive behavior. You couldn’t do anything about it.

Then one night, he almost killed you by stabbing you in the neck with a piece of broken glass. One of your neighbors called the cops. You were helicoptered to a trauma center and survived. But when you came home from the hospital, the city where you have lived for 24 years had started proceedings to force you out of your apartment, against the wishes of your landlord – who stood to lose his rental license if he didn’t file eviction proceedings.

This is the story of Lakisha Briggs, as outlined in a suit filed last week (PDF) in U.S. District Court in Pennsylvania by the American Civil Liberties Union. The ACLU, the ACLU of Pennsylvania, and the law firm Pepper Hamilton are bringing the federal suit on Briggs’s behalf against the borough of Norristown, Pennsylvania.

Steve Clowney

Wolf on Takings and Sea-Level Rise Adaptation

Michael Wolf (Florida) has posted Strategies for Making Sea-Level Rise Adaptation Tools 'Takings-Proof' (Journal of Land Use & Envt'l Law) on SSRN.  Here's the abstract:

While the costs of some Sea-Level Rise (SLR) adaptation tools are undeniably daunting, the American legal system poses an additional, potentially budget-busting impediment — the Takings Clause of the Fifth Amendment to the United States Constitution. Officials at all governmental strata and from all three branches should keep the demands made by the Takings Clause, as interpreted by the judiciary, in mind as they choose tools from the diverse SLR-adaptation toolbox, as they justify their choices to the electorate and other constituencies, as they put those tools to use, and as they defend that use from litigants claiming abuse. This article sets out to achieve four tasks: First, the article locates the heart of the Takings Clause in a single sentence from a 1960 decision — Armstrong v. United States. Second, the article reviews six taking varieties, ranging from the most concrete common — the affirmative exercise of eminent domain — to the most fanciful — judicial takings. Each variety in turn is matched with one representative Supreme Court decision and with operative language drawn from that opinion. Third, with Armstrong as a guiding principle, the article identifies which of the most common SLR tools already being deployed pose “no,” “minimal,” “moderate,” and “serious” takings implications. Fourth, the article suggests methods that government officials can use to address the challenge posed by tools with the highest takings risk.

Steve Clowney

Liveblogging ALPS

I just returned from ALPS Annual Meeting (Association of Law Property and Society) in Minnesota.  In case you missed the event, Jessie Owley liveblogged many of the sessions.  Check out her posts at Land Use Prof.

Steve Clowney

The Rent Remains Very High

Jimmy McMillan, founder of the Rent Is Too Damn High Party, is back in the New York Mayor's race with a new ad:

 

Steve Clowney

Mulvaney on How The Supreme Court Analyzes Property Rights in Takings Cases

Tim Mulvaney (Texas Wesleyan) has posted Foreground Principles (George Mason) on SSRN.  Here's the abstract:

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the “background principles” inquiry has wrought, and questions the self-contained nature of this inquiry. In doing so, it asserts that a focus on connecting or disconnecting challenged regulations to what are, at times, antiquated background common law principles can come at the expense of a more direct and transparent consideration of what is in the foreground: the public and private interests implicated by the challenged regulations in the modern context within which those regulations are promulgated. The Article advocates de-emphasizing the background principles inquiry in favor of a contextual analysis that is centered on fairness and recognizes that background principles might not be sufficient to deal with modern problems and serve modern human needs.

 

 

Steve Clowney

Black and Latino Homeowners Pay More Than Whites

Matt Bevilacqua reports on a new study from the National Bureau of Economic Research:

Looking at more than 2 million home sales between the years 1990 and 2008, the report found that blacks and Latinos paid anywhere from 1 to 5 percent more than their white counterparts. These were for homes of comparable quality and within the same neighborhoods in four major metropolitan areas: Chicago, Baltimore-Washington, D.C., San Francisco and Los Angeles.

According to the report, a minority family’s income, wealth and access to credit had little to do with the higher prices they paid for homes. And outright racism on the part of sellers didn’t play the obvious role that one might think.

The report explains this conundrum in detail: "[A]ny disadvantage that black and Hispanic buyers face when purchasing homes disappears when it comes time to sell. While certainly not conclusive, this pattern suggests that the relative inexperience of black and Hispanic buyers, due to the historically lower rates of home ownership, may contribute to the higher prices that they initially pay upon entering the market."

Steve Clowney

Renting the American Dream

Richard Florida looks at the how the appeal of renting versus homeownership has changed since 2008:

A majority of Americans also say home ownership has lost its economic allure as an investment for the future. Nearly seven in 10 Americans (69 percent) report that "it is less likely for families to build equity and wealth through homeownership today compared with two or three decades ago." Most of all, three in five adults (61 percent) believe that "renters can be just as successful as homeowners in achieving the American Dream." This sentiment was felt among more than half of home owners (59 percent) and more than two-thirds (67 percent) of renters.

Steve Clowney

Map of the Day: Age of Consent

Contrary to popular belief, the minimum age at which a person is considered to be legally competent to consent to sexual acts varies from 16 to 18 in the USA.

The laws of Europe show even greater fluctuation.  In Spain the age of consent is 13, in Malta and Turkey it's 18. 

Steve Clowney

The Oldest Palm Tree in LA

Los Angeles magazine does the knowledge:

At first glance, the fan palm guarding Exposition Park’s Figueroa Street entrance appears unremarkable. Palm trees, after all, are a fixture of the Los Angeles skyline. But that unassuming palm may be the city’s oldest, a survivor of three replantings and a witness to more than 150 years of Los Angeles history.

Likely still a sapling when it was dug up from a desert canyon in the late 1850s, the tree was transplanted with several other young palms to San Pedro Street in present-day Little Tokyo. Over the next 30 years, the trees grew up as Los Angeles matured around them. In 1888, the Times called the palms, which had witnessed the town’s evolution from a community of less than 5,000 to a booming city of nearly 50,000, “among the oldest landmarks of Los Angeles.”

Steve Clowney

How Milk Prices Are Set

Laura Anderson and Dan Pashman interview Kirk Kardashian (a land use lawyer turned writer) about how government sets the price of milk.   As the interviewers note, milk is almost unique among commodoties, in that the government plays a very direct role in determining how much it costs. The interesting stuff starts at about 2:25.

 

Steve Clowney

McCoy on Lessons Learned on From The Home Mortgage Foreclosure Crisis

Patricia McCoy (UConn) has posted The Home Mortgage Foreclosure Crisis: Lessons Learned on SSRN.  Here's the abstract:

From 2007 through 2011, the United States housing market suffered a severe imbalance in supply and demand due to an excessive number both of foreclosed homes and homes awaiting foreclosure in the shadow housing inventory. Foreclosure prevention can help reduce the shadow housing inventory by keeping troubled mortgages from entering that inventory to begin with. The loan modification experience post-2008 yielded four main lessons about the best way to optimize foreclosure prevention. First, servicers should design loan modifications to lower monthly payments, including through principal reduction whenever appropriate. Second, servicers should evaluate loss mitigation as soon as possible following delinquency. Third, when distressed borrowers lack the cash flow for cost-effective loan modifications, servicers should explore other ways to keep those homes occupied, such as short sales, in order to avoid unnecessary spillover effects to the surrounding community. Finally, subsidies are not enough alone to overcome the frictions to an optimal number of loan modifications. The paper closes by discussing the implications for policy reform.

Steve Clowney

A Water War Out West

The N.Y. Times details a growing battle between the Confederated Salish and Kootenai Tribes of Montana and a group of local farmers:

Dependable water supplies mean the difference between dead fields and a full harvest throughout the arid West, and the Flathead is no exception. Snowmelt flows down from the ragged peaks to irrigate fields of potatoes and wheat. It feeds thirsty cantaloupes and honeydew melons. Cutthroat trout splash in the rivers. Elk drink from the streams.

So when the government and the reservation’s tribal leaders devised an agreement that would specify who was entitled to the water, and how much they could take from the reservoirs and ditches, there was bound to be some discord. But few people expected this.

There have been accusations of racism and sweetheart deals, secret meetings and influence-peddling in Helena, the state capital. Lawsuits have been threatened. Competing Web sites have sprung up. Some farmers have refused to sell oats to those on the other side of the argument.

Steve Clowney

40 Inspiring Workspaces Of The Famously Creative

Buzzfeed as all the photos:

From tiny writing desks to giant painting studios, the only thing all of these creative studios have in common is that they inspired their successful inhabitants to create greatness.

Steve Clowney

(photo: Georgia O'Keefe's studio)

McCoy on Barriers to Foreclosure Prevention During the Financial Crisis

Patricia McCoy (UConn) has posted Barriers to Foreclosure Prevention During the Financial Crisis (Arizona Law Review) on SSRN.  Here's the abstract:

The number of modifications to distressed residential loans has been subpar to date compared to the number of foreclosures. This raises concerns about the presence of artificial barriers to loan modifications in situations where foreclosure should be avoidable. Numerous theories have been advanced for the relatively low level of modifications, including restrictions on loan modifications in private-label servicing agreements, threats of lawsuits by private-label investors, servicer compensation arrangements, the high cost of loss mitigation, accounting rules, junior liens, and tax considerations. This Article concludes that servicer compensation coupled with the costly nature of loan workouts, accounting standards and junior liens form the biggest impediments to an efficient level of loan modifications. These factors also distort the mix of loan modifications that are made toward types of modifications with higher redefault rates. Other explanations, such as servicing agreement restrictions, tax consequences, and the threat of lawsuits, either are not at play or are of second order importance.

Steve Clowney

Where is the Good Life to be Found?

Rod Dreher has recently published a book (to generally glowing reviews) about the death of his sister from cancer at age 42.  The book, The Little Way of Ruthie Leming, also centers on Dreher's decision to pack up his family from Philadelphia and move back to his hometown St. Francisville, La., a place of about 1,700 residents 30 minutes northwest of Baton Rouge.

After reflecting on the move and the experience of grieving for his sister, this is Dreher's advice:

[M]y advice would be to do your very best to root yourself in the community where you do live, and to do your best to stay there — achieving “stability” in the Benedictine sense. [...] The point is, you can live a very rooted life in Mill Valley, California or Portland, Oregon or NYC, as long as you commit to the place in a concrete way, and root yourself in the community, via church or synagogue, school, little league, or other “little platoons.” We should return to a definition of success as laid down by Ralph Waldo Emerson: “To leave the world a bit better, whether by a healthy child, a garden patch, or a redeemed social condition; To know even one life has breathed easier because you have lived. This is to have succeeded.”

But what do you do if [you] live in a place where just keeping up requires you to work crazy-long hours, and leaves little time for community life? I remember that my dad always got off at 4:30, which left him plenty of time for little league coaching and other things. [...]  Anyway, maybe the lesson is that the good life is not possible in the Philadelphia suburbs, or any place where in order to keep your head above water, your job has to own you and your wife, and it keeps you from building relationships. There are trade-offs in all things, and no perfect solution, geographical or otherwise. Thing is, life is short, and choices have to be made. It’s not that people living in these workaholic suburbs are bad, not at all; it’s that the culture they (we) live in defines the Good in such a way that choosing to “do the right thing” ends up hollowing out your life, leaving you vulnerable in ways you may not see until tragedy strikes.

Steve Clowney

Bunting on Property Rights as Conflict Resolution Mechanism

W.C. Bunting (ACLU) has posted Private Property Rights as War on SSRN.  Here's the abstract:

Part I embeds the famous Coase Theorem within a more general theoretical framework of property rights. The concept of a transfer principle is defined and the final allocation of property rights is derived as a function of this transfer principle. Also, transaction costs are defined in relation to the equilibrium allocation of property rights implied by a given transfer principle.

Part II models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to war/conflict, the following question is posed: if the pre-conflict common-use property right regime is socially-optimal, under what conditions will disputing parties fail to bargain around/settle the conflict? In addition to the explanations specifically identified by Professor Fearon, the present article offers an additional explanation evidenced in the institution of private property rights itself, and, in particular, state “Castle Doctrine” laws that permit the use of lethal force in defense of real property. Skeptical that participants in a capitalist market-based economy will voluntarily enter into socially-optimal cooperative arrangements regarding the joint use of private property rights, a role for the courts is suggested wherein de facto common property rights are established by rendering private property rights random/uncertain. Although possibly producing socially-suboptimal misallocations of the property right, this uncertainty weakens private property rights, reducing the expected spoils of costly conflict, and, in turn, creates an incentive for the parties to settle/cooperate. In this way, less secure claims to private property promote social cooperation.

Part III examines judicial/Coasian intervention versus legislative/Pigouvian intervention and argues that legislative/Pigouvian rulemaking fails to make use of the disputing parties’ privately-held information to the extent that political conflict, unlike legal conflict, is “settlement-impossible.”

Steve Clowney

Photos of Children From Around the World With Their Most Prized Possessions

Amanda Gorence highlights a photo-essay centered on children and their toys:

Shot over a period of 18 months, Italian photographer Gabriele Galimberti’s project Toy Stories compiles photos of children from around the world with their prized possesions—their toys. Galimberti explores the universality of being a kid amidst the diversity of the countless corners of the world; saying, “at their age, they are pretty all much the same; they just want to play.”

Steve Clowney

Was Marx Right?

Time magazine looks at the the resilience of the ideas of Karl Marx

With the global economy in a protracted crisis, and workers around the world burdened by joblessness, debt and stagnant incomes, Marx’s biting critique of capitalism — that the system is inherently unjust and self-destructive — cannot be so easily dismissed. Marx theorized that the capitalist system would inevitably impoverish the masses as the world’s wealth became concentrated in the hands of a greedy few, causing economic crises and heightened conflict between the rich and working classes. “Accumulation of wealth at one pole is at the same time accumulation of misery, agony of toil, slavery, ignorance, brutality, mental degradation, at the opposite pole,” Marx wrote.

A growing dossier of evidence suggests that he may have been right. It is sadly all too easy to find statistics that show the rich are getting richer while the middle class and poor are not.

Steve Clowney

Zacks on High Volume Foreclosure Firms

Dustin Zacks (King, Nieves & Zacks PLLC) has posted Robo-Litigation (Cleveland State) on SSRN.  Here's the abstract:

The recent housing crisis increased demand for attorneys to process foreclosures through state courts. This increase in demand was coupled with a desire for the fastest and cheapest legal services available. As a result, large foreclosure firms designed to handle an enormous number of foreclosure cases quickly and inexpensively evolved and flourished. During their ascendancy, these firms consistently generated complaints about their conduct, including questions about their ethical decision-making and about the veracity of the pleadings and documents they filed. Scholarly literature on the housing crisis, however, is largely devoid of commentary on ethical issues related to increased foreclosures.

This Article tracks the rise and fall of several notorious high volume foreclosure firms and examines the numerous instances of serious misconduct their attorneys and paralegals perpetrated. The Article accordingly examines the curiously muted reaction from state bar associations, judges, and state legislators.

The Article then proceeds to examine how these foreclosure firms differ in makeup from traditional large law firms. Notable characteristics of these foreclosure firms include lenders and servicers’ relentless demand for increased speed and low costs, lack of firm-specific capital at foreclosure law firms, and a factory-like atmosphere of legal practice. The Article concludes with an examination of three policy options to prevent another surge in attorney misconduct: changing ethical rules, improving ethical education, and increasing state bar association funding and authority.

Steve Clowney

Is a Wind Turbine a Nuisance?

From Volokh:

Wind turbines may be a promising low-carbon power source, but the communities in which they are sited do not always welcome them with open arms. Residents of the Forest hills subdivision in Washoe Valley, Nevada, were none to pleased when one of their neighbors planned to erect a wind turbine to power his home. They sued, alleging the 75-foot-tall turbine would constitute a nuisance, and won. While noting that “the aesthetics of a wind turbine alone are not grounds for finding a, nuisance,” the Nevada Supreme Court ruled that “a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value.” On this basis, the court upheld the lower court’s determination that the wind turbine would constitute a nuisance, and could be enjoined.

Steve Clowney