PropertyProf Blog

Foster on Zoning Payday Lenders

Sheila Foster (Fordham) has posted Breaking Up Payday: Anti-Agglomeration Zoning and Consumer Welfare (Ohio State Law Journal) on SSRN.  Here's the abstract:

In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances. The author’s analysis of the aftermath of payday lending zoning restrictions in one state demonstrates that while such laws may play a role in reducing the number of payday lenders in the immediate urban area, they do not shield consumers from these lenders altogether. Further, the economic literature on agglomeration economies suggests that there are costs to consumer welfare from limiting or breaking up retail agglomerations. Such “anti-agglomeration” zoning restrictions can prevent consumers from capturing the benefits of the price and product competition that result from retail agglomerations. This Essay concludes that if the main impetus behind anti-agglomeration zoning measures is to protect local residents from the high interest rates and loan terms associated with the payday industry, it might be that these measures are working against their intended purpose and actually harming consumers who lack viable financial services alternatives. As such, in weighing the costs and benefits of payday lender agglomeration, lawmakers should consider more carefully the effects of anti-agglomeration zoning measures on consumer welfare.

Steve Clowney

What Happens to Your Rewards Points When You Die?

Gerry Breyer is on the case:

If you die, your rewards points may die with you.  According to a recent study by market research firm Colloquy, major rewards programs like Delta SkyMiles, Southwest Rapid Rewards, and Hilton HHonors generally do not allow points to be transferred after death. 

According to their research, outstanding loyalty points had an estimated total value of $50 billion in 2011, but around 76% of loyalty club members have not considered who would inherit their balances. 

Their study also shows that many companies may not have considered the issue either.  American Express Membership Rewards, Citibank’s ThankYou Rewards, and Best Western Rewards don’t detail their policies online, which can lead to conflicting interpretations from customer service reps.  Other companies can have complicated or restrictive inheritance policies such as only allowing transfers to spouses, only allowing heirs to redeem points but not transfer them,  requiring executors to pay transfer fees, or requiring a death certificate to be sent within a certain time frame.

Loyalty club members should consider including account numbers, passwords, and balances as an addendum to their will.  However, bequeathing point balances will not supersede the terms of service of particular programs.

Click here for a chart detailing different policies from major airline, hotel, and credit card rewards programs.

See Kelli B. Grant, ‘Til Death Do Us Part: Reward Points Don’t Live On, CNBC, Oct. 24, 2013.

Steve Clowney

Map of the Day: When Was Your House Built?

Steve Clowney

Murthy on the Human Right to Water and Sanitation in the Slums of Mumbai

Sharmila Murthy (Suffolk) has posted Land Security and the Challenges of Realizing the Human Right to Water and Sanitation in the Slums of Mumbai, India (Health and Human Rights) on SSRN.  Here's the abstract:

Addressing the human right to water and sanitation in the slums of Mumbai, India requires disentangling the provision of basic services from a more complicated set of questions around land security and land ownership. Millions of slum-dwellers in Mumbai lack adequate access to safe drinking water and sanitation, which places them at risk for waterborne diseases. Many slums are located in hazardous areas such as flood plains, increasing their susceptibility to climate change-related weather patterns. Access to water and sanitation in slums generally hinges on whether a dwelling was created prior to January 1, 1995, because those constructed created prior to that date have greater land security. Although the so-called “1995 cut-off rule” looms large in Mumbai slum policy, a closer reading of the relevant laws and regulations suggests that access to water and sanitation could be expanded to slums created after January 1, 1995. State and municipal governments already have the authority to expand access to water services; they just need to exercise their discretion. However, slums located on central government land are in a more difficult position. Central government agencies in Mumbai have often refused to allow the state and municipal governments to rehabilitate or improve access to services for slums located on their land. As a result, an argument could be made that by interfering with the efforts of subnational actors to extend water and sanitation to services to slum-dwellers, the central government of India is violating its obligations to respect the human right to water and sanitation under international and national jurisprudence.

Steve Clowney

Property is Power, or How to Claim a Country (Estate)

Adam Clulow, writing for The Atlantic, highlights the wonderfully weird criminal case against Lamont Maurice Butler.  Butler was recently charged with conspiracy to commit burglary, burglary, and attempted theft for taking possession of a $6 million 12-bedroom, 17-bathroom estate in suburban Maryland.  Butler's defense:

[O]n December 17 last year, he presented himself before the Maryland Department of Assessments and Taxation to demand that the records be altered to reflect the fact that he was assuming ownership as a representative of the so-called Moorish Nation of Northwest Amexem, North America, an imagined community that supposedly predated both the modern United States and European colonization of the Americas. Some weeks later on January 3, he employed a similarly bold strategy when questioned by his new neighbors, who had noticed unexpected activity on the property. His response was a detailed “history lesson” that was repeated to police officers arriving on the scene two days later.

Clulow then shows that Butler's claims aren't actually that outlandish when viewed through the lens of history.  They mirror, quite nicely, the declarations of some early European explorers in the New World:

One example comes from exactly five hundred years before Butler-El claimed his Bethesda mansion when Vasco Núñez de Balboa, a Spanish adventurer, crossed the Panamanian isthmus with a small party in search of the mysterious ‘other sea.’ Arriving at the shores of the Pacific Ocean, he paused for a moment, waiting on the beach for the tide to come in before staging an act of possession of such audacity that it still retains the power, even centuries later, to stun. Wading into the warm waters up his knees, he proceeded to claim the ocean itself “now and for all time so long as the world shall last, until the final universal judgment of all mortals.” The unlimited ambition of such moments, and here again there is a parallel with what happened in Bethesda, meant that they frequently crossed the line into farce. 

Steve Clowney

Dagan on Compensation for Expropriation of Property

Hanoch Dagan (Tel Aviv University) has posted Expropriatory Compensation, Distributive Justice, and the Rule of Law on SSRN.  Here's the abstract:

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).

Steve Clowney

Should the U.S. Adopt a Land Value Tax?

Slate picks up on idea that's been floating around in academic circles:

For a long time the economics profession has quietly noted that a land value tax is economically efficient but, having sussed out its theoretical benefits, left the subject for more intellectually rewarding pursuits. The result is a frustrating dearth of scholarship on the subject. But the few detailed papers that do exist suggest land taxes can replace most levies on labor and capital which—if true—suggests that the failure to switch to land value taxes is a much bigger deal in practice than most economists realize.

The most comprehensive work on this subject I could find is Steven Cord’s 1985 paper in the American Journal of Economics and Sociology, "How Much Revenue Would a Full Land Value Tax Yield." His answer was that it could replace much more than half all taxes on labor and capital in that year. That’s stunning . . . .

[A] big benefit of land taxes is the incentive to bring land into intense use which, by definition, would be valued on the margin. Land taxes might not work, but that's an argument nobody is making.

Faithful blog commentator, Wyn Achenbaum, has been making some of these points for years.  Here blog is here: http://lvtfan.typepad.com

Steve Clowney

Mitt Romney: Living Every 12-Year-Old Boy's Real Estate Fantasy

The Salt Lake Tribune has  obtained the architectural records for Mitt Romney's home that's under construction in Holladay, Utah.  The paper has made an awesome discovery: the house has a secret room. And yes, it's totally hidden behind a bookcase. 

Steve Clowney

Fennell & Penalver on Exactions Law

Lee Fennell (Chicago) and Eduardo Penalver (Chicago) have posted Exactions Creep (Supreme Court Review) on SSRN.  Here's the abstract:

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast as a bargain, the Court must find some way to hive off the domain of exactions from garden variety land use regulations. This it refused to do in Koontz, opting instead to reject boundary principles that it found normatively unstable. By beating back one form of exactions creep — the possibility that local governments will circumvent a too-narrowly drawn circle of heightened scrutiny — the Court left land use regulation vulnerable to the creeping expansion of heightened scrutiny under the auspices of its exactions jurisprudence. In this paper, we lay out this dilemma and suggest that it should lead the Court to rethink its exactions jurisprudence, and especially its grounding in the Takings Clause, rather than the Due Process Clause. The sort of skepticism about bargaining reflected in the Court’s exactions cases, we suggest, finds its most plausible roots in rule-of-law concerns implicated by land use dealmaking. With those concerns in mind, we consider alternatives that would attempt to reconcile the Court’s twin interests in reining in governmental power over property owners and in keeping the gears of ordinary land use regulation running in ways that protect the property interests of those owners.

Steve Clowney

Map of the Day: America's Mood

A Friday diversion:

[A] multinational team of researchers led by psychologist and American expat Jason Rentfrow of the University of Cambridge in the U.K. has sought to draw the regional lines more clearly, literally mapping the American mood, with state-by-state ratings of personality and temperament. 

According to the study, the winners (or losers, depending on how you view these things) were in some cases surprising and in some not at all. The top scorers on extroversion were the ebullient folks of Wisconsin (picture the fans at a Packers game — even a losing Packers game). The lowest score went to the temperamentally snowbound folks of Vermont. Utah is the most agreeable place in the country and Washington, D.C., is the least (gridlock, anyone?).

For conscientiousness, South Carolina takes the finishing-their-homework-on-time prize, while the independent-minded Yanks of Maine — who prefer to do things their own way and in their own time, thank you very much — come in last. West Virginia is the dark-horse winner as the country’s most neurotic state (maybe it was the divorce from Virginia in 1863). The least neurotic? Utah wins again. Washington, D.C., takes the prize for the most open place — even if their low agreeableness score means they have no idea what to do with all of the ideas they tolerate. North Dakotans, meantime, prefer things predictable and familiar, finishing last on openness.

You can take a quiz and figure out where you should live here.

Steve Clowney

Chen & Kielsgard on Condominium Governance in China

Lei Chen (City University of Hong Kong) and Mark Kielsgard (City University of Hong Kong) have posted Evolving Property Rights in China: Patterns and Dynamics of Condominium Governance (Book Chapter) on SSRN.  Here's the abstract:

This article investigates the development of private property law in the People’s Republic of China through the lens of condominium governance in urban China. It assesses the vitality of these trends, reviews the relevant historic legal and social background, and demonstrates how the introduction of private property in China has fundamentally altered the fabric of its civil society. Drawing upon case studies and statutory analysis and evaluating them from the perspective of property relations, it analyses the trends driving greater democratic structures by reviewing the self-governance of condominium owners associations and the grassroots democratic participation they have spawned. Moreover, this article tackles the future of these trends by reflecting upon conditions opposing continued development such as local corruption, lack of enforcement, and inadequate judicial review.

Steve Clowney

Assessing Mt. Laurel

In the pages of the New York Times, David Kirp takes a look at what's happening in Mt. Laurel, New Jersey.  Mt Laurel is the site of, arguably, the most famous inclusionary zoning case in the country.  Kirp argues that the presence of affordable housing units has had no noticable effect on the lives of Mt. Laurel's wealthy residents: 

Families with incomes as low as $8,150 — one-third of the poverty level — have been living in a town where the median income is 10 times higher for a family of four. “Climbing Mount Laurel,” co-written by the Princeton sociologist Douglas S. Massey and several colleagues, concludes that this affordable housing has had zero impact on the affluent residents of that community — crime rates, property values and taxes have moved in step with nearby suburbs — while the lives of the poor and working-class families who moved there have been transformed.

Steve Clowney

The 33 Most Beautiful Abandoned Places In The World

Via BuzzFeed, a fun list.

Steve Clowney

(Image: Craco, Italy)

Tomlins on Property in Wild Animals

Christopher Tomlins (Irvine) has posted Animals Accurs’d: Ferae Naturae and the Law of Property in Nineteenth-Century North America (Toronto Law Journal) on SSRN.  Here's the abstract:

This essay comments on the three substantive articles comprising the University of Toronto Law Journal’s symposium on ferae naturae and the law of property. It argues that the articles collectively represent a reconsideration of the influential thesis developed by Robert Ellickson in Order without Law, that when members of any community resolve disputes arising in the course of some shared activity they are prone to do so in ways that avoid the costs that law imposes on the process of settlement because ‘coordination to mutual advantage without supervision by the state’ works better than order with it. Rather than confirming law’s unimportance, this essay argues, the articles collectively demonstrate the importance of law. The essay recognizes, however, that some of the ways in which the importance of law is demonstrated are distinct from the measures of importance originally considered by Ellickson. Following their lead, the essay considers additional criteria by which we might assess the significance of the law of property in wild animals – not least whether that law has taken the animals themselves into consideration.

Steve Clowney

Apple 's Spaceship Campus Coming to a Planet Near You

The Wall Street Journal reports that the city council of Cupertino, California voted to approve Apple's new the 2.8 million square-foot campus, which resembles a flying saucer:

InsideBayArea recounted the standing-room only meeting, during which Apple’s head of facilities spoke. “Steve transformed Apple into one of the most innovative companies in the world and we understand the responsibilities that come from carrying his legacy forward with this project,” Apple’s head of real estate and facilities, Dan Whisenhunt, told the council. “We’ve designed it with the same care and attention to detail as we do with all Apple products.”

Early indications are that Apple’s campus will help to increase commercial real-estate prices in the already expensive Silicon Valley area, particularly for companies that want to be positioned along the route to both of Apple’s campuses. Apple is among a handful of Silicon Valley companies, including Nvidia, Google and Facebook, that have announced grand plans for new corporate digs.

Steve Clowney

Hockett on Eminent Domain and the Underwater Mortgage Problem

Robert Hockett (Cornell) has posted Accidental Suicide Pacts and Creditor Collective Action Problems: The Mortgage Mess, the Deadweight Loss, and How to Get the Value Back (Cornell Law Review) on SSRN.  Here's the abstract:

Sustained economic recovery will remain elusive in America, post-crash, until principal is reduced on some 10-13 million underwater home mortgage loans across the nation. Yet in the case of privately securitized loans, these write-downs are all but impossible to carry out on the requisite scale because bubble-era securitization contracts, which now effectively function as suicide pacts among bondholders, would require collective action by millions of geographically dispersed passive investors in order to authorize write-downs or sales out of securitization trusts. The solution, this article suggests, is for state and municipal governments to use their eminent domain powers to buy up and restructure underwater mortgages, using money supplied by mortgage backed securities holders. Collective action problems such as those presently faced by the latter require collective agents for their solution. Since (a) bubble-era securitization contracts prevent trustees and loan servicers from playing that role, (b) the federal government seems to face collective action challenges of its own, and (c) the underwater mortgage problem is in any event locally concentrated in character, state and local governments are now those best suited to salvaging value for bondholders, homeowners, and their cities alike.

Steve Clowney

The Slander Against Brutalist Buildings

Bryan Lowder takes a look at the history behind Brutalist architecture on college campuses:

Chances are good that if you went to college in the United States after, say, 1975, your campus featured at least one imposing, bunker-like concrete building in the architectural style known as “Brutalism.” [...] Assuming that your campus did have a Brutalist building, you’ve probably been told a lie about it that goes something like, “Hideous, right? The administration chose that design because it was good at preventing student riots and occupations.” The notion, apparently, is that the style’s typically complex floor plans, dazzling edifices, and oddly placed entrances would discourage those kinds of activities.

Though the riot-prevention narrative is widely known, every architectural historian or critical source that I consulted viewed it as extremely dubious. For one thing, the claim is somewhat anachronistic. Many campus Brutalist projects were planned (if not totally completed) before the student movements of the late ‘60s and early ‘70s really took off, so crafty administrators would have to have been very prescient to foresee the countercultural-quashing usefulness of any particular style.

But more to the point, the philosophy behind Brutalism—which was developed in the ‘50s and early ‘60s, again well before the student rebellions began—was directly opposed to repression and control, a detail which makes the style’s later association with totalitarianism all the more ironic.

Steve Clowney

Infranca on Micro-Rentals and Accessory Dwelling Units

John Infranca (Suffolk) has posted Housing Changing Households: Regulatory Challenges for Micro-Units and Accessory Dwelling Units (Stanford Law & Policy Review) on SSRN.  Here's the abstract:

The existing stock of affordable rental housing falls significantly short of the need in many areas of the country. In addition, available housing frequently does not match the specific needs of prospective tenants, which have changed as household sizes shrink, more people are living alone, and people are living longer. This misalignment has been exacerbated by regulatory environments that have not kept pace with evolving housing demands. Likely as a result, cities throughout the country have seen an increase in illegal housing units – units that do not conform to zoning or building codes and may not provide safe living environments. In response to these and other concerns, a number of jurisdictions have altered regulations to permit the development of more compact rental housing units, including both accessory dwelling units and micro-units. Developers have also shown significant interest in both kinds of units.

Prior studies of these unit types concentrate on a single jurisdiction or a small number of neighboring jurisdictions and discuss accessory units, but not micro-units – which raise distinct regulatory issues. No comprehensive study has examined the feasibility of developing both types of compact housing units in a range of jurisdictions. This Article provides a detailed analysis of the regulatory and other challenges to developing both types of units, focusing on five cities: New York; Washington, D.C.; Austin; Denver; and Seattle. It places these regulatory challenges in the context of broader demographic shifts and changing conceptions of the home and the relation between public and private spheres. It argues that jurisdictions should avoid considering micro-units – which have received considerable attention in the past few years – in isolation from other forms of housing, including ADUs. Both unit types have the potential to further urban infill goals, provide individuals with access to particular neighborhoods or proximity to other individuals, reduce energy consumption, and deliver new sources of affordable housing. They also serve distinct segments of the same changing spectrum of household compositions. Cities seeking to encourage development of these unit types must carefully consider how a range of regulations pose challenges to their development.

This Article, which will be published in an issue of the Stanford Law & Policy Review examining Urban Law and Policy, derives from the author’s work on a broader research agenda on regulatory and other issues related to ADUs and micro-units conducted by the Furman Center for Real Estate & Urban Policy at New York University.

Steve Clowney

Slavery Alive and Well in the World

New research indicates that, around the world, 29 million people are still enslaved:

The [Global Slavery Index], published by the Walk Free Foundation on Thursday, ranks 162 countries and identifies risk factors for enslavement and the government responses. The research found that around 10 countries hold about 70 percent of the world’s slaves. India has the highest number of people enslaved in absolute terms, approximately 14 million, almost half the total worldwide.

Steve Clowney

(HT: Andrew Sullivan)

Fennell on Just Compensation

Lee Anne Fennell (Chicago) has posted Just Enough (Columbia Law Review Sidebar) on SSRN.  Here's the abstract:

Does the constitutional measure of just compensation — fair market value — unfairly undercompensate those whose property is taken through eminent domain? Professor Brian Angelo Lee unpacks this inquiry in his recent article, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013). In this response, I hope to both underscore the value of the questions Lee asks and challenge some of his answers. I start with the positive question of which elements, if any, are actually left out of the fair market value standard. I then turn to the normative question of whether failure to compensate for these elements should be regarded as unfair. I conclude that the fair market value standard does generally undercompensate condemnees in the ways that commentators have suggested, subject to some possible caveats. Nonetheless, the level of compensation that this standard provides when property is taken for public use may be just enough.

Steve Clowney