Thursday, January 16, 2014
Bryan Lowder looks at the burgeoning issue of whether cities have a moral responsibility to provide housing to elderly LGBT citizens:
But eldercare is also a matter of economic justice. The responsibility . . . is easy forget in the era of gay marriage, in which same-sex couples are increasingly able to consolidate their wealth and plan for their retirements and estates in ways that older generations just couldn’t. And regardless of whether gay elders found life partners or not, the hard truth is that . . . simply being queer and out in previous decades often had severe—and long-term—consequences on an individual’s finances.
But the most unconscionable aspect of this issue—and the one that affordable elder housing is ideally suited to prevent—is the pressure many LGBTQ seniors feel to go back into the closet after a lifetime of openness. This kind of retreat can seem necessary in traditional nursing homes and retirement communities as queer residents are forced to reintegrate with their less tolerant age-group. Imagine the pain of having to police your behavior or refrain from discussing a partner who has passed in your own home—it’s barbaric. Hopefully, other cities will take a cue from Philadelphia and work to create accommodations for our elders that afford them the peace and dignity they deserve.
Hanoch Dagan (Tel Aviv) has posted Property's Structural Pluralism: On Autonomy, the Rule of Law, and the Role of Blackstonian Ownership (Brigham-Kanner Prop. Rts. Conf. J.) on SSRN. Here's the abstract:
This Essay was prepared for the 2013 Brigham-Kanner Property Rights Conference, William and Mary School of Law, as a tribute to Thomas Merrill. It is a brief presentation and defense of the structurally pluralistic conception of property I have developed in recent years, which differs both from the view of property as a singular right and from its conception as a bundle of rights.
Wednesday, January 15, 2014
The annual meeting of the Association for Law, Property and Society has quickly become the preeminent property conference of the year. Proposals for this year's conference are due by January 31. The meeting will be held May 2-3 in Vancouver, British Columbia and confirmed participants include Joe Singer (Harvard) and Andre van der Walt (Stellenbosch, South Africa).
More information at the ALPS website.
Tuesday, January 14, 2014
It's that time again, this month's Professors’ Corner Webinar. A FREE monthly webinar which features a panel of law professors, discussing recent cases or issues of interest to real estate or trust and estate practitioners and scholars. The event is sponsored by the Legal Education and Uniform Laws Group of the ABA Real Property, Trust and Estate Law Section.
Wednesday, January 15, 2014
12:00-1:00 pm Eastern
Topic: “Developments in Fair Housing: Mount Holly and Disparate Impact.”
The Mount Holly case, which had been pending at the Supreme Court, might have provided a definitive ruling as to the status and parameters of disparate impact liability under the Fair Housing Act. Now that the Mount Holly litigation is settled, the law with respect to disparate impact remains unsettled—particularly in light of HUD’s “affirmatively furthering” regulation and its intent to “affirmatively further” fair housing objectives.
Four panelists that will address the past, present, and future of disparate impact theory and HUD’s “affirmatively furthering” regulations:
Professor Robert Schwemm, University of Kentucky Professor Florence Roisman, University of Indiana-Indianapolis Professor Rigel Oliveri, University of Missouri Professor Stacy Seicshnaydre, Tulane University
Robert Hershey (Arizona), Jennifer McCormack (Arizona - Geography), and Gillian Newell (Independent) have posted Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past on SSRN. Here's the abstract:
How Indigenous communities choose to represent spaces or spatial information is integral to constructing and archiving cultural memory, articulating current environmental use, and dealing with evidentiary issues for title or land claim cases. For Indigenous communities around the world, the legacy of Western (often, colonial) cartography and spatial theory is disconnected from the many distinct narratives of space (and time) in Native communities.
Specifically in legal situations, this disconnect often reflects a power struggle between a Western, Cartesian division of space and time, and a relational, dynamic capitulation of space and time by an Indigenous group. Indigenous communities attempting to utilize Western legal forums for recognition of their rights face evidentiary hurdles caused by the ethnocentrism inherently built into legal systems. Although exceptions exist to hearsay rules, which allow oral history to be admitted as evidence and are common in multiple jurisdictions, fact finders are not comfortable placing conclusive weight on intergenerational memories. This discomfort is based on Western society’s ideas about what constitutes reality and reliability and results in Indigenous communities being held to strictly Western and often overly lineal principles. Indigenous communities need concrete methods to bring their intergenerational memories into Western courtrooms and have lawyers and judges receive and understand these fully and from an Indigenous standpoint.
Monday, January 13, 2014
For years, Lucas St. Clair and his mother, Roxanne Quimby, have been trying to donate 75,000 acres of pristine land the federal government in order to establish a new national park in Maine. Although the presence of a national park would surely attract money and tourists to an economically depressed areas, local residents are staunch in their opposition to the proposal. Why? Because locals still resent Quimby (the founder of Burt's Bees skin care company) for violating the property norms of rural Maine. Specifically, she closed off her land to hunters and snowmobilers. Here's the quote from the NY Times:
[F]erocious opposition has stalled their plan, partly out of antipathy toward Ms. Quimby, who, against Maine tradition, closed off her lands to hunters and snowmobilers, and partly because many in this fiercely independent region loathe the idea of giving Washington a toehold here.
Schwartz said it’s often clear how parents should prepare for the arrival of a new baby, the rules of how to treat the unoccupied room of an adult child are less concrete. “There's a sort of gray area between what you do with that room when you've gone from full-time parenting to whatever it is that comes next,” Schwartz said. “In some of the houses I went into, people didn't need space, so those rooms could stay intact. They'd close the door and pretty much not go into them. In other houses, there's more of a calculation: They need the space, but they want to preserve it to maintain the memories.”
Peter Byrne (Georgetown) has posted The Rebirth of the Neighborhood (Fordham Urban Law Journal) on SSRN. Here's the abstract:
This essay argues that new urban residents primarily seek a type of community properly called a neighborhood. “Neighborhood” refers to a legible, pedestrian-scale area that has an identity apart from the corporate and bureaucratic structures that dominate the larger society. Such a neighborhood fosters repeated, casual contacts with neighbors and merchants, such as while one pursues Saturday errands or takes children to activities. Dealing with independent local merchants and artisans face-to-face provides a sense of liberation from large power structures, where most such residents work. Having easy access to places of sociability like coffee shops and bars permits spontaneous “meet-ups,” contrasting with the discipline of professional life. Such a neighborhood conveys an indigenous identity created by the efforts of diverse people over time, rather than marketing an image deliberatively contrived to control the perceptions of customers. At its best, a neighborhood provides a refuge from the ennui of the workplace and the idiocy of consumer culture, substituting for churches (or synagogues), labor unions, and ethnic clubs that structured earlier urban social life.
What changes in land use law have contributed to or supported this transformation to neighborhood-based living? Several legal developments outside land use seem very important. Perhaps the most central legal development has been local government legal protections for gays, who often have been in the vanguard of the revival of urban neighborhoods. Crime reduction has significantly enhanced urban living since the 1970s, but which laws have contributed what to that reduction is a matter of intense debate. Civil rights laws and immigration reform have arguably nurtured a comfort with multi-ethnic urban neighborhoods that has turned discrimination and resentment to a comfort with and even celebration of diversity.
But changes in land use law, broadly understood, also helped provide the context for the revival of neighborhoods. This brief essay highlights those aspects of land use law that have supported this new urbanization since the founding of the Fordham Urban Law Journal. The claim is not that legal reforms caused the revival, but that they contributed to a broader social trend. These reforms have supported neighborhood revival primarily by securing the physical environments people want to live in. The three chief legal tools for neighborhoods have been zoning for urban form, historic district preservation, and environmental protection.
Friday, January 10, 2014
Techcrunch has a short article on how tech start-ups are starting to change the rental process:
The tools currently offered by Cozy include collecting rent online, managing payments from multiple roommates, and screening tenants. Landlordology, meanwhile, features a number of guides and advice-focused articles for landlords and property owners, “especially those with 50 rental units or less.” (Sample post: “10 Best Practices to Prevent Tenant Lawsuits.”) Its traffic has supposedly been increasing 20 to 30 percent every month since it launched in January 2012.
Daniel Cole (Indiana) has posted The Law and Economics Approach to Property (Property Law Review) on SSRN. Here's the abstract:
This short paper, written for a symposium issue of the Property Law Review on "Research Methods in Property Law," provides a concise introduction to the ways in which property rights (and duties) structure economic relations and, in turn, are influenced by economic considerations. Among the topics covered are: (a) property as a functional "institution" that not only facilitates exchange but also supports resource conservation (via the right to exclude); (b) Coasian comparative institutional analysis as a research method based on transaction costs; (c) property conflicts as joint- or social-cost problems; (d) the law and economics of property remedies; and (e) the under-explored variety and complexity of property regimes. The paper concludes with the obvious point (but one often ignored by legal scholars) that a thorough understanding of property law (including public and common property, as well as private property) requires attention to the vital economic functions it serves in virtually all societies.
Thursday, January 9, 2014
David Weber (Creighton) has posted Zombie Mortgages, Real Estate, and the Fallout for the Survivors on SSRN. Here's the abstract:
Part I of this Article briefly explains the context and scope of the problem of zombie mortgages - mortgages that are in default but for which the lender refuses or fails to foreclose. Zombie mortgages saddle the record owner with ongoing tax and maintenance obligations which they may not be able to escape. Zombie properties are problematic for the affected homeowners, but in many cases they are equally problematic for other individuals residing in the same neighborhood, the lenders and servicers, and the relevant municipalities who will have to face issues of negligence, blight and vandalism related to vacant properties. Part I analyzes current municipal approaches to dealing with the problem, primarily through vacant property registration ordinances (VPROs). Part II examines cases from both municipal-driven litigation as well as consumer-driven litigation where zombie debt has been legally extinguished. Part II also examines several bankruptcy decisions that potentially lead to an avenue of relief for the owners of the affected properties. Part III proposes two new unique ordinances that cities could use to combat the problem, highlights owner-based solutions in bankruptcy, and mentions other attempts that have been tried in erasing zombie mortgages. This article concludes that a compromise solution that involves the municipalities, lenders and owners is the best route to ease the nationwide problems associated with zombie mortgages.
The New York Times details the plight of tenants who didn't have heat during the recent blast of arctic air:
The landlord . . . at 930 and 940 Prospect Place in Crown Heights, Seth Miller, was named one of the city’s 50 worst landlords by Bill de Blasio last year, when he was the city’s public advocate. The Department of Housing Preservation and Development lists 78 open violations in the two buildings, which have a common heating system. Since Mr. Miller’s company, Aegis Realty Management Company, bought the buildings out of foreclosure in 2012, tenants say it has harassed and tried to evict long-term tenants, challenging their leases and refusing to accept their rent payments, in order to bring in higher-paying residents. The tenants have sued Aegis and Mr. Miller for failure to provide heat and adequate hot water; their case is scheduled to be heard in housing court next Tuesday.
Wednesday, January 8, 2014
Leila Amineddoleh (Independent) has posted The Role of Museums in the Trade of Black Market Cultural Heritage Property (Art Antiquity and Law) on SSRN. Here's the abstract:
Due to tax benefits enjoyed by museums, these institutions should be required to follow more stringent standards and to complete thorough provenance research prior to purchasing new acquisitions. The most recent revision of acquisition standards by the Association of Art Museum Directors was heightened, however the guidelines are still not demanding enough.
During the past decade acquisition standards have become a major issue, as unethical museum practices have drawn attention and protest from the art community. With the public trial of the Getty Museum's former curator, Marion True, the public has become aware of irresponsible acquisitions made by museums. In 2011, cultural heritage academics were outraged over the ownership dispute of the Ka Nefer Nefer funerary mask which was unearthed in Egypt in 1953 and then went missing in the 1960s. The mask reappeared in the St. Louis Art Museum in 1998, and the museum refused to return the artifact to Egypt. The case is currently in federal court, but has drawn attention to a number of museum purchases made from antiquities dealers with criminal or suspect records. (The St. Louis Art Museum purchased the mask from a gallery whose owners have been convicted for numerous art crimes.) Then in July 2012, an antiquities dealer from India was arrested for selling black market sacred Hindu antiquities to major museums worldwide. During this time of political upheaval, with so many cultural artifacts illegally exiting the Middle East, Northern Africa, the market is full of looted antiquities. With heightened due diligence standards, museums must avoid the purchase of illegally-excavated items. Acquiring this type of property fuels the black market for art, a market with ties to international terrorism. Museums have fiduciary duties to the public and ethical duties to protect art in their care.
Tuesday, January 7, 2014
Paul Babie (Adelaide) has posted Sovereignty as Governance: An Organising Theme for Australian Property Law (University of New South Wales Law Journal) on SSRN. Here's the abstract:
Perhaps the best-known and most succinct, but most misrepresented statement of the meaning of property comes from Sir William Blackstone’s Second Book of the Commentaries on the Laws of England:
There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
Of course, what it gained in succinctness, Blackstone’s statement lost in accuracy, or, at least, in the way it has been used by others; for Blackstone never meant this statement to represent a full account of all that property was. The way in which most others ever-after have portrayed Blackstone’s words is, at best, inaccurate and, at worst, disingenuous; property is nothing like the absolutist picture painted by an uncritical acceptance of Blackstone’s pithy quotation.
Monday, January 6, 2014
Harvard Magazine takes a look at the recent work of sociologist Matthew Desmond, who found shockingly high rates of forced moves in Milwaukee:
Analyzing court records of formal evictions, he found that in Milwaukee’s majority-black neighborhoods, 1 in 14 renting households is evicted each year—and even this proportion significantly underestimates the number of families whose lives are disrupted by involuntary displacement. That’s because formal evictions can be expensive for landlords—in addition to lawyers’ fees, they must pay court costs and an hourly charge for the eviction squad—so they often work out agreements with tenants, sometimes even paying them cash to move out. Desmond also met landlords who used more adversarial means, cutting off electricity or even removing the front door of a tenant in arrears so that the unit would be condemned and the tenant forced to move out.
These sorts of forced relocations take place off the books. So Desmond collected new survey data from more than a thousand Milwaukee renters to try and capture all involuntary displacements and gain a more comprehensive picture. Working with sociology graduate student Tracey Shollenberger, he found that the most recent move for almost one in eight Milwaukee renters was an eviction or other involuntary relocation; the ratio rises to one in seven for black renters, and fully one in four for Hispanic renters.
Robin Craig (Utah) has posted Does the Endangered Species Act Preempt State Water Law? (Kansas Law Review) on SSRN. Here's the abstract:
In March 2013, in The Aransas Project v. Shaw, the U.S. District Court for the Southern District of Texas announced, almost in passing, that the federal Endangered Species Act (“ESA”) preempts state water law and the exercise of state water rights. As a result, the court concluded that the Texas Commission on Environmental Quality had effectuated a “taking” of ESA-listed whooping cranes as a result of state-permitted diversions of fresh water. This case is currently on review before the U.S. Court of Appeals for the Fifth Circuit, but it raises a question likely to be increasingly important for both aquatic species and water users: When, and to what extent, does the federal ESA preempt state water law, including the exercise of state-created water rights?
This Article examines that question in much more detail than the Southern District of Texas did. It begins by examining the plethora of water systems in the United States that are already subject to ESA controversies as a result, at least in part, of water management decisions and water rights. For a variety of reasons, including both population dynamics and climate change, the number of such systems is increasing, and conflicts between the ESA and state water law are only likely to escalate in the future. In Part II, this Article reviews the basic jurisprudence of federal preemption, outlining the three ways in which federal law can preempt state law — express, implied, and conflict preemption. Finally, Part III examines how these three types of preemption play out through the ESA. The Article concludes that the ESA is unlikely to either expressly or implicitly preempt state water law in most circumstances, but that conflict preemption is likely to play an increasingly bigger role in ESA-water law jurisprudence, making The Aransas Project v. Shaw a harbinger of water rights litigation to come.
Friday, January 3, 2014
Fannie Mae & Freddit Mac might have become too profitable to close:
WASHINGTON — Federal officials swooped in to rescue mortgage finance giants Fannie Mae and Freddie Mac in 2008 with the largest of all the financial crisis bailouts — a combined $187.5 billion — because they were considered too big to fail.
Now, despite bipartisan support to shut them down, Fannie and Freddie may prove to be too profitable to close. Fannie and Freddie play a vital role in the mortgage market by purchasing or guaranteeing more than 6 in 10 new loans. And the housing market's recovery has reversed the finances of the once-private companies, now wards of the U.S. government.
Fannie and Freddie are not only making money but also sending huge dividend checks to the Treasury — a combined $39 billion this week for their latest quarterly payment — and some are wondering why they should be put out of business.
Yun-chien Chang (Academia Sinica) & Henry Smith (Harvard) have posted Structure and Style in Comparative Property Law (Book Chapter) on SSRN. Here's the abstract:
In this book chapter, we argue that the distinction between "structure" and "style" is important in understanding the similarities and dissimilarities in common and civil law property. Structure is the functional form the law employs to protect people’s use interests, whereas style is a manner of delineating entitlements that is characteristic of a particular legal culture. The same structure of property can be implemented in a number of styles. For transaction costs reasons, property systems under the two traditions (common and civil laws) are similar and have to be similar. Their styles today, as is well known, are quite different, due to their different histories and path dependence.
To underpin our point that it is critical to look beyond property styles to understand the economic nature of property, we closely examine mortgage (called hypothec in civil law countries). The styles of mortgage/hypothec cannot be more different. Several countries consider mortgage a property right; several others delineate it as a contract; while some others view it as neither property nor contract. We demonstrate that mortgage/hypothec, like other, uncontroversial property interests, contains the three essential elements of property. Thus, in terms of structure, mortgage/hypothec is a property right in all jurisdictions, despite the wide variety of styles in the civil and common law systems.
Thursday, January 2, 2014
As the new semester dawns, we're looking for a few guest bloggers to join us. If you're interested, please drop me an email. Guest stints generally last about a month, and we hope you'll post around twice a week. If you've ever wondered if you'd like to blog, this is a low-pressure way to find out if you're made of the right kind of iron. Benefits include the opportunity to promote your scholarship, a cool new line on your C.V., and the promise of copious free drinks on me at the law conference of your choice.