PropertyProf Blog

Should Michigan Sell Its Water to California?

A question worth asking:

It’s almost unfair how the Great Lakes area’s bountiful snowfall this winter will only compound the region’s enjoyment of an unequaled 21 percent of the world’s supply of fresh surface water, while places like California, the Southwest, the Southeast and even the Great Plains continue to struggle with near- and long-term water supply challenges.

In an era of increasingly stressed water systems and still-growing populations around the world, the aqueous blessings of the Upper Midwest, especially those fulsome bodies of water surrounding the peninsula amoena of Michigan, will only be envied — and coveted — even more.

[...] Some believe that Michigan hasn’t been doing a sufficient job of economically leveraging its own singular position at the epicenter of the world’s largest fresh-water supply.

[...] One possibility is blocked for now. A five-year-old agreement between the United States and Canada called the Great Lakes-St. Lawrence River Water Resources Compact ensures that the lakes’ waters won’t be shipped wholesale from the region even if the temptation to do so presents itself to one state or province or another. That’s exactly what happened in the late 1990s when Ontario moved toward sending bulk containers of Lake Superior water to Asia.

But the expectation may grow that in an increasingly thirsty world, those who benefit most from the Great Lakes should figure on sharing their fresh-water fortune with the rest of America and maybe beyond. Nothing says the Compact couldn’t be modified or overturned by future political pressures.

Why is North Up on Maps?

Writing for Al-Jazeera America, Nick Danforth sorts through some cartographic history:

There is nothing inevitable or intrinsically correct — not in geographic, cartographic or even philosophical terms — about the north being represented as up, because up on a map is a human construction, not a natural one. Some of the very earliest Egyptian maps show the south as up, presumably equating the Nile’s northward flow with the force of gravity. And there was a long stretch in the medieval era when most European maps were drawn with the east on the top. If there was any doubt about this move’s religious significance, they eliminated it with their maps’ pious illustrations, whether of Adam and Eve or Christ enthroned. In the same period, Arab map makers often drew maps with the south facing up, possibly because this was how the Chinese did it.

[...]  The north’s position was ultimately secured by the beginning of the 16th century, thanks to Ptolemy, with another European discovery that, like the New World, others had known about for quite some time. Ptolemy was a Hellenic cartographer from Egypt whose work in the second century A.D. laid out a systematic approach to mapping the world, complete with intersecting lines of longitude and latitude on a half-eaten-doughnut-shaped projection that reflected the curvature of the earth. The cartographers who made the first big, beautiful maps of the entire world, Old and New — men like Gerardus Mercator, Henricus Martellus Germanus and Martin Waldseemuller — were obsessed with Ptolemy. They turned out copies of Ptolemy’s Geography on the newly invented printing press, put his portrait in the corners of their maps and used his writings to fill in places they had never been, even as their own discoveries were revealing the limitations of his work.

(HT: Andrew Sullivan)

Butler on The Resilience of Property

Lynda Butler (William & Mary) has posted The Resilience of Property (Arizona Law Review) on SSRN.  Here's the abstract:

Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms of property without regard for property’s other relational planes.

A real-life theory of property — one based on a theory-practice link — sees the property landscape as a function of interactions among possible property arrangements and other perspective-based systems, including natural systems. Understanding property as a function of those relational planes is important to preserving its resilience. Research on the dynamics of change in social-ecological systems provides important insight into how institutions, like property, that manage resources can promote resilience. The mainstream economic theory lacks the openness and interdisciplinary inclusion needed to handle complex disturbances, ignoring conflicting perspectives and alternative visions that have played a significant role in the evolution of property. Often presented as involving either/or choices, the mainstream theory takes a singular perspective that overlooks important dialectical interactions. As subsystems of larger natural systems, complex societies need a resilient property system open to different perspectives and new knowledge if they are to handle the serious challenges of the future.

Akkermans on The Comparative Method in Property Law

Bram Akkermans (Maastricht) has posted The Comparative Method in Property Law on SSRN.  Here's the abstract:

Property law systems diverge and there are many reasons for this. This does not only apply to common law and civil law systems (or Nordic or mixed legal systems), but basically for all systems of property law. Property lawyers can approach these differences with different methods. One of these methods is the comparative method, of which the functional method of comparative law is the most well known and used. That method is, depending on the ‘agenda’ of the comparative lawyer, used to find similarities or to find differences. Generally the method is used to (i) improve the own national legal system, (ii) to provide an overview of systems, (iii) to understand vertical dynamics, such as the influence of EU law on national property law, or (iv) to provide the basis to develop something completely new, such as a Common European Sales Law.

Comparative lawyers compare equivalents in the systems they are investigating. They find these equivalents generally by looking for functionally similar concepts or institutions. For example to compare the right of ownership in civil law to the fee simple in common law as these are both primary rights. The danger of using this method is that, depending on the viewpoint of the comparative lawyer, it is very easy to find similarities and differences. It is therefore important for the comparative lawyer to make his or her intentions explicit. Although the comparative method is losing ground to other approaches, which enable a more normative approach to law, it remains of relevance, especially in light of the vertical dynamics that exist in multi-level systems such as the European Union.

China is (Rightly?) Ignoring the Law of Discovery

Writing for Slate, Eric Posner has a look at the dispute between China and Japan over who ownes the the Senkaku/Diaoyu Islands.  The short article has a great passage about the relationship between property and power:

The international law that governs territorial disputes favors Japan. When no one occupies or controls a piece of territory, it is deemed terra nullius (“land belonging to no one”). That was the status of the islands before 1895. The ancient Chinese texts do not establish Chinese control. A typical example is a diplomatic record from 1534 that says, “The ship has passed Diaoyu Island.” The ship was carrying a Chinese official, but passing by an island and calling it Diaoyu does not establish sovereignty. A country does that by showing it has seized a territory through an official act and then exerted control over it or that its government has controlled it as long as anyone can remember. Since China did not control the islands before 1895, Japan had the right to seize them. It then lawfully maintained sovereignty over them by ruling them. [...]

And yet that’s hardly the last word on the matter. The rules of international law to which both sides appeal embody the power relationships that existed at the time of their emergence centuries ago. At that time, the great powers raced around the world claiming territories that were either unoccupied or occupied by native tribes. With a lot of territory to snap up, it made sense for them to implicitly agree not to contest one another’s conquests so that they could all concentrate on seizing the areas that were up for grabs. This raised some significant questions. Could one seize an entire continent by placing a flag on a tiny piece of it? Could one conquer an island by sailing by it and putting it on a navigation chart? To the contrary, the rough norms that evolved required more significant control—perhaps a post office or a military garrison. This ensured that a country could own territory only if it was powerful enough to control it.

In 1895, Japan was on the cusp of great-power status, while China was beset by internal turmoil and foreign pressures. Japan could control the islands; China could not. Now China has the upper hand and is unhappy with the 19^th-century division of spoils. Why should it go along with territorial allocations that result from rules that favored strong nations a century ago?

Brilmayer and Moon on Regulating Land Grabs

Lea Brilmayer (Yale) and William Moon (Yale) have posted Regulating Land Grabs: Third Party States, Social Activism and International Law (Book Chapter) on SSRN.  Here's the abstract:

This chapter explores how international law may regulate large-scale leases and acquisitions of land (“land grab”) that have accelerated in pace and scope in recent years. We start by identifying why the land grab phenomenon concerns food security. In particular, we observe that the lessor countries (those where the land is located) are almost invariably states plagued by corruption, lack of democracy, dependence on food aid, and weak property rights. Where agents (state leaders) have conflicts of interests with their principals (citizens) it cannot be assumed that these transactions will work to the local population’s advantage. After examining why international investment law is not equipped to police these transactions, we turn to sources within trade law. Because trade law concerns the cross border flow of products, it has the potential to de-incentivize food from leaving land grabbed states and deter similar transactions in the future. The central question, then, is whether World Trade Organization (WTO) law accommodates strategies that are designed specifically to discourage particular categories of free trade. Drawing on recent WTO jurisprudence, we propose labeling laws and import restrictions as potential regulations that may be adopted by third party states.

Is it Human Nature to Love Our Property?

 Paul Hiebert looks at our strange attachment to inanimate things:

Around mid-February, someone on Reddit posted a meme that declared the following: “Sometimes, when I grab a cup from my cabinet, I will grab one that’s in the back and never gets used because I think the cup feels depressed that it isn’t fulfilling it’s life of holding liquids.”

The sentiment proved popular. “I used to work at a toy store and if anyone ever bought a stuffed animal I would leave its head sticking out of the bag.. so it could breathe,” commented one Redditor. “I actually cried when we switched microwaves when i was a kid. I felt like we should have given it a proper burial or something,” wrote another. “I feel bad for inanimate objects all the time,” confessed yet another. Hundreds of other comments carried on in a similar vein.

Why is this? Why do some of us sometimes sense a pang of guilt for throwing away a pair of worn-out shoes or neglecting to use a new set of headphones? We know these things are without joy or loneliness, yet every now and then our emotions inform us otherwise. Perhaps this is the result of all those Disney films featuring a motherly teapot or brave little toaster.

[...] While some of these relationships seem a bit suspect, they do demonstrate what can happen when people personify things to the extreme. If anything, these examples show how far the human imagination can go (or how desperate some people are for attention). And though it’s not clear how many people view inanimate objects as having rich private lives or how often, all of the above suggests the phenomenon is neither new nor unusual. We are emotional creatures, and our emotions involuntarily attach themselves to all sorts of things, from places we’ve visited to a pair of earrings grandma left behind after she died to a cup located near the back of the cabinet.

The documentary posted above is Strange Love: Married to the Eiffel Tower, which profiles a woman who feels a deep emotional connection with public structures. “Despite our vast differences, we are very much in love, and our love in itself is no different from any other love that exists between two beings,” she says about the Golden Gate Bridge.

Wolf on the 'Term Creep' Problem in Property Law

Michael Wolf (Florida) has posted Conservation Easements and the 'Term Creep' Problem (Utah Envtl Law Review) on SSRN.  Here's the abstract:

This Essay (published in 2013 Utah Law Review and Volume 33 of the Utah Environmental Law Review) first discusses the “term creep” problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts. The confusion between easements of the “traditional” and “conservation” varieties is just one in a long line of situations in which the decision to allow often significantly dissimilar concepts to share the same name has led to unfortunate consequences.The second part of the Essay explains the substantive nature of the hybrids known most familiarly as conservation easements. Statutory and uniform law drafters were straightforward in their efforts to cherrypick the best attributes of traditional servitudes, while discarding troublesome disabilities, in order to achieve their admirable legislative goals.The third part asks why proponents of conservation restrictions should care about term creep, and the final section explores three benefits that outweigh the burdens of removing “easement” or “servitude” from the name of conservation restrictions and adopting the terminology used in the federal tax arena.

Will Twenty-Somethings Ever Purchase Homes?

The L.A. Times shines a light on some sobering statistics:

- Citing Census Bureau data on homeownership by age, demographer Chris Porter of John Burns Real Estate Consulting calculates that Americans who were 30 to 34 in 2012 — those born between 1978 and 1982 — had the lowest homeownership rate of any similarly aged group in recent decades, 47.9%. By contrast, Americans born between 1948 and 1957 had a 57.1% ownership rate by the time they hit the 30 to 34 bracket. This is despite record low mortgage rates and bumper crops of bargain-priced foreclosures and short sales.

- Debt-payment-to-income ratios increasingly are mortgage application killers for would-be first-timers. Adoption nationwide last month of a new federal 43% maximum debt-to-income ratio for "qualified mortgages" is particularly poorly timed for young buyers. Because of large student debts, which average $21,402 but sometimes balloon into six figures, they may not be able to meet the 43% standard for years.

 

Map of the Day: Time Zone v. Solar Time

Slate highlights the above map:

The map above, created by math blogger and Google engineer Stefano Maggiolo (click here for a full-size version), shows the difference between clock time and “solar time”—a schedule in which the sun is at its highest point in the sky at exactly 12 noon.

For whatever reason, more of the world seems to be a little bit like Spain—the sun rises and sets later in the day than it should—than the other way around. The “late” places are shown in red, the “early” places in green. The deeper the shade, the more off the time is.

Stein on the Transferability of Concert Tickets

Gregory Stein (Tennessee) has posted Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets on SSRN.  Here's the abstract:

Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events.

What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can the initial ticket seller limit that transferability? Does it matter whether the initial purchaser planned to sell at a profit all along? If there is a profit to be made, who is entitled to keep the resale premium? More generally, what are the economics of the market in ticket sales and resales?

Part I of this Article asks what legal rights a ticket creates under contract and property law and whether the party who acquires a ticket is legally empowered to reconvey it. Part II looks more globally at the economics of the market in sales and resales of tickets. Part III examines and compares the roles of the private market and the government in transactions involving the sale and resale of event tickets. Finally, Part IV looks to the future, suggesting some directions the ticket resale market may and should take as technology and the law continue to evolve and as the political process functions.

Where Do Slums Come From?

The Economist links the size of a nation's slums with its colonial legacy.  The short explanation is that "Poorly-run colonial systems allowed for the emergence of dodgy groups that monopolise rental markets."  A slightly longer take:

A new paper by Sean Fox of Bristol University focuses on absentee landlords in Kibera [a slum in Nairobi]. Well-connected types, Mr Fox finds, can acquire control over swathes of land thanks to their political connections. One survey found that 41% of Kibera’s landlords were in fact government officials: 16% were politicians. These landlords can exploit their privileged position. Research from MIT, again in Kibera, finds that when the chief of the local area and the landlord come from the same tribe (but the tenant does not), renters end up paying 6-11% more. Chiefs and landlords collude to extract higher rents. … Mr Fox reckons that these arrangements are partially a legacy of colonial rule. He argues:

Colonial administrative structures were weak and highly centralised, and municipal authorities were granted very limited authority over development and regulation … In a context of rapid population expansion, such structures have proven cumbersome and have contributed to the proliferation of unplanned settlements.

In other words, clumsy colonial governments were bad at controlling urban development. Mr Fox demonstrates this empirically. Legal fragmentation in the colonial era, a proxy for indirect rule, is strongly correlated with contemporary slum incidence (measured [in the above chart] as the percentage of a country’s urban population living in slums)….

(HT: Andrew Sullivan)

Krier & Serkin on The Possession Heuristic

James Krier (Michigan) and Christopher Serkin (Vanderbilt) have posted The Possession Heuristic on SSRN.  Here's the abstract:

This chapter for the forthcoming book, The Law and Economics of Possession (Yun-chien Chang, ed), explores the law of possession as an application of a heuristic (a simple decision making strategy devised to solve complex problems, part of System 1 thinking in Daniel Kahneman’s famous formulation). Since the law of property is essentially the law of belongings, its first task is to determine to whom things belong. There are all sorts of complicated inquiries that could be undertaken to figure out and justify an incredible range of answers to this question. Alternatively, there is a simple inquiry that provides a simple answer: A thing belongs to its possessor. This is the possession heuristic. The chapter canvases possession doctrines and ultimately argues that some current controversies in property, about the centrality of exclusion versus a social obligation norm in property, can be at least partly reconciled by viewing possession as a heuristic.

How We All Subsidize the Construction of Beach Houses

From the Atlantic Cities Blog:

Here's how flood insurance works, in the ideal. FEMA develops maps of areas near the coast or inland bodies of water and rivers. Those maps try and anticipate the likelihood of flooding, and if you build in zones that are likely to flood, you pay mandatory insurance premiums linked to the likelihood of it happening. If the property is flooded, FEMA pays out damages from the insurance program.

That's the ideal, anyway. As NBC News' Bill Dedman reports, hundreds of property owners have successfully lobbied to have the zones where their homes — or hotels — are located downgraded. Meaning that they pay less in insurance premiums, but still receive the same payout in the event of disaster.

(Image: screencap of NBC's map of successful flood insurance rezoning efforts)

Jay on Enforcing Conservation Easements

Jessica Jay (Vermont) has posted Enforcing Perpetual Conservation Easements Against Third-Party Violators (UCLA J. of Envtl Policy) on SSRN.  Here's the abstract:

Among the most daunting challenges the holder of a perpetual conservation easement faces is the enforcement of the easements it holds, for all time, and against all violators. National organizations estimate that at least forty million acres of land in the United States are protected with perpetual conservation easements. Each of these conservation easements is held by an entity, either a government agency or a tax-exempt, non-profit land trust, charged with the responsibility of enforcing easement violations against any and all violators. Holders must contend with violations caused by landowners and third parties. In the latter instance, someone who is not the owner of the easement-protected property enters the land by trespass without the knowledge or permission of the landowner or the easement holder, and violates the conservation easement. A Land Trust Alliance (Alliance) survey, specifically designed to gather information on conservation easement violations, reveals that behind successor-generation landowners, third parties are the most frequent class of easement violators. The findings of this survey track those of an earlier Alliance survey and are consistent with violation reporting in the most recent Alliance census. Further, anecdotal reporting of conservation easement violations indicates that many violations are caused by third parties — possibly as much as forty percent.

How to Build the a Perfect Refugee Camp

The New York Times has a fascinating story on Kilis, Turkey - a seemingly model refugee camp that's currently housing Syrians.  The story explains how and why Turkey's refugee camps outperform the ones run by the UN:

Many of the world’s displaced live in conditions striking for their wretchedness, but what is startling about Kilis is how little it resembles the refugee camp of our imagination. It is orderly, incongruously so. Residents scan a card with their fingerprints for entry, before they pass through metal detectors and run whatever items they’re carrying through an X-ray machine. Inside, it’s stark: 2,053 identical containers spread out in neat rows. No tents. None of the smells — rotting garbage, raw sewage — usually associated with human crush and lack of infrastructure.

The World's Largest Residential Pool

This two-acre pool has six waterfalls, a 21-foot slide, a 500-foot lazy river, a bar, an outdoor kitchen, a kiddie area, and more.

Check out the video here.

Pomeroy on Why Property Is So Hard

Chad Pomeroy (St. Mary's) has posted Why Is Property So Hard? (Rutgers Law Review) on SSRN.  Here's the abstract:

This paper seeks to flesh out the heterogeneity and inherent difficulty of property law and to analyze it in depth. Part I begins this examination by setting up a taxonomy for property law and then describing the heterogeneity inherent in that context and the costs associated with that variability. Real estate law has continually evolved throughout American history — changing from a small, local business to a large, national one, spanning jurisdictional lines and limits — and it is the haphazard and varied nature of this evolution that has created this difficulty and cost. This is notable when contrasted with the homogeneity and relative stability of other areas of the law. And it is particularly notable when contrasted with one particular area of property law itself: when it comes to property form, property law is remarkably stable and predictable, and a closer examination of this exception to property’s broader heterogeneity leads to an enlightening analysis of the underlying reasons for the larger heterogeneity that is the focus of this article.

Part II undertakes just that sort of examination, examining property form in terms of the numerus clausus. This theory, which means “closed number,” was first discussed by European scholars and has more recently been propounded by Thomas Merrill and Henry Smith to describe and explain the fact that the wider variability of property law does not extend to common law restrictions on property types. In particular, they argue that the numerus clausus drives the standardization of property types by implementing an informational cost-benefit analysis that focuses on whether a new property type would provide helpful information to interested parties, the unique benefit of which exceeds the marginal informational costs thereof.

Part III applies an informational burdens analysis to property law generally by demonstrating its application to vesting, co-ownership, and third party property rights heterogeneity. Part IV then builds upon this construction to explain why this has not yet occurred in our system by focusing on the significant roll-back costs that would result from attempting to change established real property practices and laws. Any such attempt would upset settled expectation based upon prior precedent and hundreds of years of recorded documents, creating much higher costs than those usually associated with legal innovation.

The Article concludes that our property system is dangerously inefficient and costly and that the numerus clausus analysis provides a potentially adequate vehicle for addressing this problem, while acknowledging the very real costs associated with any such attempt.

Are Reverse Mortgages the Wave of the Future?

The New York Times thinks so:

As baby boomers age, reverse mortgages are expected to gain popularity as a means of covering living expenses. Hence, in the future, more homes passed on to children will come with a bill attached — the balance due on these equity loans.

Federally insured reverse mortgages, officially issued as part of the Home Equity Conversion Mortgage program, are a way for homeowners 62 and older to borrow money using their home equity as collateral. The proceeds must first be used to pay off any remaining balance on the mortgage, which frees homeowners from monthly payments. Interest and monthly insurance premiums are charged throughout the life of the loan, and the total becomes due when the borrower dies (or permanently moves out of the home).

Map of the Day: Felon Disenfranchisement