PropertyProf Blog

Getting Dogs Into a No-Pet Apartment

The N.Y. Times looks that the increasing number of renters who claim to have a disability in order to skirt no-pet rules in apartment buildings:

Most people know that federal, state and city laws require building owners and landlords to accommodate tenants who have disabilities — for instance, by waiving a no-pet rule for a blind resident’s guide dog. But word apparently is spreading about how broadly these laws define a disability, allowing people with a wide range of physical and mental conditions to seek waivers for their dogs.

Serious depression, chronic pain, AIDS, autism, dementia, cancer and heart disease are just some of the illnesses lawyers say can qualify as disabilities. And as New Yorkers trade advice about this topic in dog parks, elevators and online pet forums, the number of people applying for waivers is increasing “enormously,” said Darryl Vernon, a partner in the law firm Vernon & Ginsburg.

The relevant statutes are the federal Fair Housing Act (which defines a disability as a mental or physical condition that “substantially limits” a major life activity), the New York State Human Rights Law and the New York City Human Rights Law. The city law is generally considered the broadest of the three, covering “physical, medical, mental or psychological” impairments — which opens the door to a wide range of requests.

Steve Clowney

Hockett & Vlahoplus on Municipal Eminent Domain Authority to Purchase Underwater Loans

Robert Hockett (Cornell) & John Vlahoplus (Mortgage Resolution Partners) have posted A Federalist Blessing in Disguise: From National Inaction to Local Action on Underwater Mortgages (Harvard Law & Policy Review) on SSRN.

While it is widely recognized that the mortgage debt overhang left by the housing price bubble and bust continues to operate as the principal drag upon U.S. macroeconomic recovery, few seem to appreciate just how locally concentrated the problem is. This paper takes the measure of the national mortgage debt overhang problem as a cluster of local problems warranting local action. It then elaborates on one form of such action that the localized nature of the ongoing mortgage crisis justifies - use of municipal eminent domain authority to purchase underwater loans, then modify them in a manner that benefits debtors, creditors, and their communities alike.

Steve Clowney

Housing for the Mentally Ill

The Pittsburgh Post-Gazette looks at some of the housing challenges facing the mentally ill, many of whom have criminal records:

For many people with serious mental illness, the specter of homelessness is just around the corner. Housing can be as important to recovery as medication, yet the mental-health system struggles to meet the demand for safe, affordable housing. To make matters worse, some clients' behavioral problems make then unwanted tenants.

[P]ublic housing authorities, which provide subsidized housing to the poor, routinely deny admission to felons. He said clients with mental illness might get around that barrier by arguing that they're entitled to a special accommodation under the Americans with Disabilities Act.

Ms. Ricci of Supportive Services runs Stone Harbor, a 12-bed home for offenders with mental illness and drug and alcohol problems in Beaver County. She said her clients are "high profile, in the news a lot" because problems with impulse control repeatedly get them into trouble. Without Stone Harbor, she said, some would sit in jail because they have nowhere else to go.

Steve Clowney

Pagano on Grassroots City Building

Celeste Pagano (Florida Coastal) has posted DIY Urbanism: Property and Process in Grassroots City Building (Marquette Law Review) on SSRN.  Here's the abstract:

In recent years, a range of grassroots interventions have claimed and shaped the use of urban space. Community gardens, unsanctioned public art, temporary crosswalks, miniature lending libraries — these projects and more have been termed “guerilla urbanism,” “tactical urbanism,” or “insurgent uses of public space.” I choose the term “DIY” — short for Do-It-Yourself — urbanism to describe these phenomena in order to emphasize their bottom-up and often ad hoc nature. Accomplishing a variety of aims and existing on a curiously fluid spectrum of legality, DIY urbanist interventions share in common an orientation toward community engagement in changing the use of common urban space.

This article is the first to examine the trend from a legal perspective. Because many DIY urbanist interventions are initially illegal, they raise thorny issues of law and legitimacy. This article first situates DIY Urbanism in the context of other contemporary trends in urban development, then tackles the questions of legitimacy, legality, and ultimately democracy that these projects raise. DIY urbanist actions, even when illegal, strengthen civic values, enhance community, and serve to remedy deficits in existing democratic processes. Ultimately, their acceptance into the mainstream canon of urban development tools reflects the inherent flexibility in legal regimes, particularly in property law, which develop to protect enduring values of community in shifting circumstances.

Steve Clowney

Congratulations to David Barron

Congratualtions to PropertyProf David Barron of Harvard, who has been nominated by President Obama to fulfill a seat on the First Circuit.

Steve Clowney

Map of the Day: The German Election & the Pull of History

Andrew Sullivan deciphers the above map:

One of the most remarkable features of the two Obama victories was how close the states he lost were to the member states of the Confederacy. There were a few mismatches, but it was hard to ignore that power of historical forces on the vote for the first African-American president. In Germany, too, here’s the map of Berlin’s election in 2013, courtesy of the FT (registration required) . . . The old Berlin Wall is in black. Notice how the former Communist, and still economically laggard, east (purple) still votes left, while the gentrified, formerly West Berlin votes right. The miracle? The West and the right are now led by a native woman of the East. And the beat goes on.

Blue signifies the Christian Democratic Union, led by Merkel. Green is the Green Party.  And purple is The Left party.

Steve Clowney

Rose on the Property Scholarship of James Krier

Carol Rose (Arizona) has posted Evolution and Environment in the Property Scholarship of James Krier (Property Rights Conference Journal) on SSRN.  Here's the abstract:

This article is brief appreciation of the enormous contributions that Jim Krier has made to property law scholarship. It focuses on his engagement with theories about the evolution of property rights, and argues that Krier learned from his work in environmental law to be skeptical about just-so theories of institutional evolution, including the evolution of property. Instead, Krier has been constantly attentive to the reasons why institutional responses to resource problems actually unfold as they do, following their twists and turns through both successes and mishaps.

Steve Clowney

Who Sells Houses?

As Berkshire Hathway prepares to create a real estate franchise, the LA Times looks at some trends in the national real estate market:

But it may surprise you to know that the National Assn. of Realtors counts 32 national and regional franchise brands in operation across the land. And that does not include the handful of start-ups that seem to pop up every year and then fade away.

Another surprise, perhaps, is that only slightly more than half the nation's realty agents work under a franchise banner. The rest — 41%, according to NAR's latest membership profile — choose to remain independent.

At the same time, 84% of all real estate firms are independent, NAR reports. The rest are franchises or subsidiaries of national or regional firms. The reason: Most realty firms are one- or two-office shops with only a handful of agents, whereas the franchises are larger offices with more agents.

 Other facts: Keller Williams is the largest franchise in terms of agents, with some 83,000 sales associates in 662 offices.  But Re/Max agents appear to sell the most homes, followed by Coldwell Banker, Keller Williams, Century 21 and Prudential Real Estate.

Steve Clowney

Phillips on Private Property Ownership in Light of Increased Oil and Gas Development

Sara Phillips (McGill LLM) has posted Property and Prosperity: Examining Contemporary Private Property Ownership in Light of Increased Oil and Gas Development in the United States on SSRN.  Here's the abstract:

The concept of private property has played an important role within American history and culture. For many of the country’s founding statesmen, private property was heralded as the ultimate path to freedom, financial independence, and prosperity. The role of the private landowner has evolved dramatically over the last two centuries or so, and private property has now become an important component of US states’ increased oil and gas development efforts. As demand for the resources continues to rise, the US has experienced an unprecedented boom in oil and gas development, on both public and private lands. In the wake of increased development activity, the demand for greater land conservation measures has also escalated. Private property plays an integral role in US environmental conservation efforts and a growing number of landowners now seek enduring land conservation and protection.

This thesis considers the role of private property in light of the arguably equally important state interests of oil and gas resource development and environmental conservation. Utilizing professors Gregory Alexander and Eduardo Peñalver’s human flourishing model of the social obligation norm, I argue that private property ownership consists of two primary overarching social obligations: resource development and land conservation. Looking to the state of Colorado as a case study, I examine the various traits inherent in private land ownership within the context of resource development, demonstrating that Colorado has, to its detriment, over-emphasized the obligation of resource development while neglecting other equally important environmental considerations. Throughout the thesis, I reveal how Colorado’s substandard regulatory practices have disempowered the state’s private landowners, disincentivized land conservation efforts, and effectively undermined the human flourishing model of private property ownership. I therefore argue for a repositioning of the state’s interests, to provide greater protection to Colorado’s private landowners while also restoring balance and harmony to the social objectives of environmental preservation, and conservation and development of oil and gas resources.

Steve Clowney

UMKC Seeking Chair in Property Law

Edward A. Smith/Missouri Chair
in Law, the Constitution and Society
University of Missouri - Kansas City
School of Law

 The University of Missouri - Kansas City (UMKC) School of Law is seeking nominations and applications for the Edward A. Smith/Missouri Chair in Law, the Constitution and Society.  The School is especially interested in applicants with strong backgrounds in Environmental Law, State and Local Government Law, Urban Law, or Property Law.   It is expected that the holder of the Chair will make significant contributions to student learning and scholarship, and will be an active leader in bringing creative solutions to the legal and social problems of the wider community.  The Chair was established in honor of Edward A. Smith, whose distinguished career exemplified the use of law as a tool for shaping a better society. 
 
The School of Law was founded more than 100 years ago and is located in the beautiful Country Club Plaza area of Kansas City, a diverse metropolitan area of more than 2.3 million people.  The School provides its approximately 500 students with a comprehensive, affordable legal education supported by a collaborative and dedicated faculty, uses a personalized admissions process, and enjoys strong community and alumni support.  The School is housed in a technologically sophisticated building on a landscaped and vibrant campus.  The UMKC School of Law is the only law school in Kansas City, and is one of two law schools in the University of Missouri system.

Nominations and questions may be directed to Professor Doug Linder, LinderD@umkc.edu, (816)235-2375.  To apply, please submit an application through http://www.umkc.edu/hr/career-opportunities/default.asp

Applicants should submit a cover letter, CV, and other materials the applicant wishes to be considered, before October 15, 2013.  Applicants who are not U. S. citizens must state their current visa and residency status.

The University of Missouri-Kansas City recognizes that a diverse faculty, staff, and student body enriches the educational experiences of the entire campus and the greater community.  To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and to making every attempt to support their academic, professional and personal success.            

The University of Missouri-Kansas City is an Affirmative Action, Equal Opportunity Employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply.

Schlag on the Coase Theorem

Pierre Schlag (Colorado) has posted Coase Minus the Coase Theorem - Some Problems with Chicago Transaction Cost Analysis (Iowa Law Review) on SSRN.  Here's the abstract:

In law as well as economics, the most well-known aspect of Coase’s “The Problem of Social Cost,” is the Coase Theorem. Over the decades, that particular notion has morphed into a crucial component of Chicago law and economics — namely, transaction cost analysis.

In this Article, I deliberately bracket the Coase Theorem to show that “The Problem of Social Cost” contains far more interesting and unsettling lessons — both for law as well as for economics. Indeed, while Coase’s arguments clearly target the Pigouvian attempts to “improve on the market” through government correctives, there is, lurking in those arguments, a much more profound critique of neoclassical economics generally.

This broader critique has been all but eclipsed by the focus on the Coase Theorem and its main offshoot — namely, Chicago transaction cost analysis. Here, based on a close reading of “The Problem of Social Cost,” I retrieve Coase’s broader critique from its current obscurity to show its relevance and bite for contemporary law and economics. In particular, I deploy Coase’s thought to show that Chicago transaction cost analysis is, on its own terms, compromised.

Chicago transaction cost analysis has no theory capable of distinguishing transaction costs from production factor costs. It is accordingly incapable of delineating the circumstances when it is (or is not) efficiency-enhancing to “economize on transaction costs.” The surprising upshot is that despite its stated commitment to enhance efficiency, Chicago transaction cost analysis is instead engaged in a selective subsidization (or penalization) of various markets based on criteria that are at best opaque and quite possibly, incoherent.

Steve Clowney

How to Design a City for Women

The Atlantic Cities Blog looks at how Vienna takes gender into account when it re-designs urban spaces:

Following completion of Women-Work-City, city officials turned their attention to Vienna’s network of public parks and commissioned a study to see how men and women use park space. What they found was surprising.  The study, which took place from 1996 to 1997, showed that after the age of nine, the number of girls in public parks dropped off dramatically, while the number of boys held steady. Researchers found that girls were less assertive than boys. If boys and girls would up in competition for park space, the boys were more likely to win out.

City planners wanted to see if they could reverse this trend by changing the parks themselves. In 1999, the city began a redesign of two parks in Vienna’s fifth district. Footpaths were added to make the parks more accessible and volleyball and badminton courts were installed to allow for a wider variety of activities. Landscaping was also used to subdivide large, open areas into semi-enclosed pockets of park space. Almost immediately, city officials noticed a change. Different groups of people -- girls and boys -- began to use the parks without any one group overrunning the other.

Steve Clowney

Somin on the Recent Takings Clause Cases

Ilya Somin (George Mason) has posted Two Steps Forward for the 'Poor Relation' of Constitutional Law: Koontz, Arkansas Game & Fish, and the Future of the Takings Clause (Cato Supreme Ct. Rev.) on SSRN.  Here's the abstract:

Property rights protected by the Fifth Amendment’s Takings Clause have long been “relegated to the status of a poor relation” in Supreme Court jurisprudence. Over the last 25 to 30 years, however, Takings Clause issues have been more seriously contested in the Court than previously, and property rights have had a modest revival. During the 2012–2013 Supreme Court term, property rights advocates won notable victories in Arkansas Game & Fish Commission v. United States and Koontz v. St. Johns River Water Management District.

This article considers the significance of Arkansas Game & Fish and Koontz, arguing that both cases are potentially important victories for property rights, and that the Court decided both correctly. But because both rulings also left some key issues unresolved, their full impact may not be evident for some time to come.

In Part I, I discuss Arkansas Game & Fish, the less controversial of the two cases. The Court’s unanimous decision makes clear that when the government repeatedly and deliberately floods property owners’ land, it is possible that the resulting damage qualifies as a taking for which “just compensation” must be paid under the Fifth Amendment. The Court’s unanimity is a rebuke to the extreme position taken by the federal government in the case. But it also leaves a number of crucial issues for later resolution.

Part II considers Koontz, which ruled that there can potentially be a taking in a situation where a landowner was refused a permit to develop his land by a government agency, unless he agreed to, among other things, pay for off-site repair and maintenance work on other land in the area that he did not own. Koontz thereby limits the government’s ability to use permit processes and other land-use restrictions as leverage to force property owners to perform various services. The case could be the most important property rights victory in the Supreme Court in some time. In part for this reason, the Court was much more divided than in Arkansas Game & Fish, with the justices splitting 5-4 along ideological lines. Like the term’s other major Takings Clause case, Koontz leaves some crucial issues for later determination.

Finally, the conclusion briefly discusses the implications of these decisions for the future of constitutional property rights. Although both cases represent incremental progress, there is still a long way to go before property rights cease to get second-class treatment from the Court.

Steve Clowney

Map of the Day: Geography of American Agriculture

The United States grows a lot of different agricultural products, from soybeans to sunflowers. And each of these crops are suited to different places. We know that tobacco is grown in North Carolina and corn is grown in Iowa.

But it turns out that the geography of American agriculture is much more interesting than I had imagined. After being astonished by the relatively high cost of corn in Kansas City (for the region is known more for its winter wheat), I began to explore the geography of different crops. And I stumbled across this amazing set of county-by-county crop maps put out by the United States Department of Agriculture.

Well, you learn a lot of interesting things. For example, while cotton is associated with the South, it’s grown as far away as Arizona and California as well:

More here.

Steve Clowney

Owley on Environmental Permitting

Jessica Owley (Buffalo) has posted The Increasing Privatization of Environmental Permitting (Akron Law Review) on SSRN.  Here's the abstract:

Forty years ago, Congress passed many of the nation’s federal environmental laws. Congress and state legislatures recognized the growing environmental damage occurring in the country and passed laws restricting the actions of businesses, individuals, and government entities. One of the hallmarks of these environmental laws is the growth of permitting programs. Acknowledging that a halt to all pollution and development was both impractical and undesirable, governments developed programs to minimize, monitor, and mitigate environmental harms. Over the past forty years, private organizations have been increasingly involved in these permitting programs. For example, through conservation easements and mitigation banks, private businesses and nonprofit organizations have taken on the responsibilities of monitoring and enforcing environmental permits.

This article examines the increasing privatization of environmental law by looking at the example of mitigation programs. Concerns regarding democracy and accountability arise when government agencies hand off their mitigation duties embodied in permit obligations to private organizations. It is not clear that the private organizations have adequate oversight and there are no clear mechanisms for stepping in when these organizations fail to perform (or inadequately perform) their conservation duties. This increasing privatization has largely occurred without a public debate regarding who is the appropriate entity to carry out and enforce environmental law. The privatization has gone unnoticed and underexamined. This article argues that environmental conservation is a public duty and examines concerns that should be addressed with the increasing privatization of that task.

Steve Clowney

Houston: Zoning by Traffic Studies

Matt Festa highlights the next big land use controversy in everyone's favorite unzoned city, Houston.  In short, residents of a fancy neighborhood are fighting the siting of a 17-story office tower with traffic and infrastructure concerns.

"It will be costly to both sides," said former state Sen. Jack Ogg, who lives near the San Felipe site and opposes the project. "We have to protect our property rights. We have no choice."  Ogg and other opponents believe the structure will increase congestion and cause safety hazards. They say it does not fit into the area, a mix of condos, townhomes, apartments and one- to two-story businesses.

"You have a situation with an affluent neighborhood with resources, a heightened level of interest and stake in the outcome," Festa said.  That raises an equality issue, Festa said, about who can muster the most resources to fight a development. While the amount of money and time spent does not guarantee legal success, well-funded efforts may elicit more attention and generate public pressure. [...] "In the long-term, higher-level scholars who study this field are asking questions like: Do these wealth disparities argue for more generalized command and control or less?

Steve Clowney

Taylor on Implied Easements

Greg Taylor (Monash - Australia) has posted Easements Implied in a Grant — Away with ‘Continuous and Apparent’ (Monash University Law Review) on SSRN.  Here's the abstract:

In Wheeldon v. Burrows, the law on implied grants of easements was pronounced to be that a grant would be recognised if the easement was 'continuous and apparent' or reasonably necessary for the enjoyment of the land, and used at the time of the grant for the benefit of the land granted. Ever since, there has been a controversy about whether the word highlighted actually means "and." But there has been no in-depth consideration of the purpose which the 'continuous and apparent' requirement is supposed to serve. This article concludes that it serves no purpose at all, is often ignored by the courts, is not justified for historical or any other reasons, is not binding as part of the ratio decidendi of Wheeldon nor part of the broader contribution of that case to the development of the common law, and accordingly should be deleted from the discussion.

Steve Clowney

Tutt on a Blightened Scrutiny

Andrew Tutt (Yale - Information Society Project) has posted Blightened Scrutiny (UC Davis Law Review) on SSRN.  Here's the abstract:

There is perhaps no fate worse than a declaration that one’s property is blighted. With that label in hand, the government obtains a virtually limitless power to regulate, to condemn, and to take for the greater good. Yet, the word “blight” is nearly meaningless, functionally and legally. Times Square, downtown Las Vegas, unspoiled wildlife habitat, prime Brooklyn real estate, and the entire city of Coronado, California all have been declared blighted at one time or another. Since the Supreme Court’s decision in Berman v. Parker in 1954, courts nationwide have applied the most deferential scrutiny to blight designations and the takings they license.

In a time before Kelo, the idea that the state might declare a property a “blight” and condemn it thereby was merely disquieting. But now, standing as it does as the last line of defense between a property owner and the State — undermined by the dangerous incentives to take advantage of its deep conceptual failings — blight rises to a level of Constitutional concern. “Blight” in all its forms is State Aestheticism, a constitutionally suspect category. Throughout American history, across fields as diverse as First Amendment law, Constitutional Privacy, Intellectual Property, Torts, Contracts, and indeed the law of Property itself, the shadow-right to be free of the State’s aesthetic judgments surfaces and resurfaces. This article discusses this constitutional right to aesthetic and moral self-determination as it has developed in fields ranging from the Constitutional right to privacy to free expression to property itself. It first canvasses how aesthetic neutrality was protected historically. It then discusses how this shadow-right manifests across a variety of areas of constitutional, statutory, and common law, and argues that this implicit Constitutional right has become increasingly explicit in recent years. Finally, it argues that the judicial failure to carefully police blight takings constitutes a significant oversight in our Constitutional order.

This Article concludes that it is time to revisit Berman’s premises and its holding. Following Kelo’s elimination of the last theoretical limitations on the “public use[s]” for which the State may exercise the power of eminent domain, blight’s newfound role as the primary protection for property owners from illegitimate takings means its legal and conceptual defects are due for reexamination, and a return to heightened scrutiny is warranted.

Steve Clowney

New Jersey's Post Kelo Reforms

John Ross of Reason magazine details how New Jersey's post-Kelo reforms actually make eminent domain abuse more likely:

The law purports to do two things: first, codify a 2007 New Jersey Supreme Court ruling favorable to property owners and, second, decouple eminent domain from redevelopment subsidies. It fails miserably at both.

When local officials declare that an area is blighted and “in need of redevelopment,” the designation both allows them to offer economic development incentives and authorizes the use of eminent domain. But sometimes officials honestly don’t want to seize anyone’s property; they just want the ability to offer subsidies to developers.

But officials cannot credibly promise not to condemn property once it has been declared blighted. Officials can change their minds. And the next city council isn’t bound by past promises. Every redevelopment area is thus under constant threat of eminent domain—intended or not.

Decoupling the incentives from condemnation would remove the threat. And the law appears to do just that, allowing for the creation of “non-condemnation redevelopment areas.” But the law lets officials transform a non-condemnation area into a condemnation area if property owners refuse to sell.

Steve Clowney

(HT: Volokh)

Render on Complexity in Property

Meredith Render (Alabama) has posted Complexity in Property on SSRN.  Here's the abstract:

This article illuminates the largely misunderstood relationship between complexity and the regulation of property interests. Specifically, the article presents the "complexity thesis" -- a novel explanatory account of the principle of numerus clausus. The principle of numerus clausus is an ancient common law rule which prohibits the customization of property interests. The complexity thesis holds that the primary function of numerus clausus is to prevent the proliferation of highly idiosyncratic property interests. In so doing, numerus clausus provides a bulkhead against the overwhelming complexity that would ensue if customized property interests were permitted.

For the last fifteen years, numerus clausus has been the subject of a spirited colloquy in which property theorists of all methodological stripes have sought to unravel some of the mysteries that surround the principle. This article carefully engages several prominent explanatory accounts of numerus clausus, and demonstrates that while these competing accounts supply a number of important insights about the principle, the complexity thesis does a better job of accounting for all of the salient features of the principle without sacrificing coherence or consilience.

Finally, the complexity thesis is especially instructive today, as the 2007 collapse of the housing market can largely be traced to a set of basic misapprehensions about the destructive power of complexity in the context of highly alienable interests. The complexity thesis demonstrates that standardization serves an essential epistemic function. Standardization makes it possible for us to better apprehend risk, and thereby avoid catastrophic miscalculations such as those that led to the housing collapse.

Steve Clowney