PropertyProf Blog

Stern on Property and Conflict of Laws

James Stern (William & Mary) has posted Property, Exclusivity, and Jurisdiction (Virginia Law Review) on SSRN.  Here's the abstract:

Property has always been treated somewhat exceptionally in the realm of conflict of laws, but today conflicts rules for property are more unusual than ever — not because they have changed, but because they haven’t. Decades ago, most states discarded the general body of traditional conflict-of-laws doctrines, a transformation referred to as the Conflicts Revolution. Property, however, remains mysteriously untouched. The basic common-law principle is that property is governed by the law of its location — the situs rule. Despite persistent academic criticism, the situs rule is still followed in every state.

This article argues certain structural features of property support the situs rule, notwithstanding the Conflicts Revolution. Theorists have increasingly stressed property’s “in rem” quality — the idea that property is “good against the world.” This article shows how that feature creates a special need for uniform treatment across jurisdictions, such that a single, exclusive source of law is applicable to questions concerning the division of rights in a given asset. Property’s in rem character is a consequence of the allocational model used as the central organizing concept in property law. That model treats each property entitlement as part of a zero-sum game, in that one person’s entitlement to an asset means no one else can validly hold an incompatible claim to the same asset. Using different rules to resolve the same legal issue both aggravates the information cost problems generated by such a system and undermines its overall coherence. The situs rule in turn responds to the elevated need for uniformity in the property context by creating a focal point that enables states to coordinate their conflicts rules. The article shows how uniformity devices pervade property, including intellectual property and even other fields with certain formal resemblances, such as marriage and corporations law. Beyond its implications for issues of property jurisdiction, this article helps show where property’s much discussed “in rem” character comes from, what it really means, and how it distinguishes property from other private law fields like contract and tort.

Inclusionary Zoning Amicus Brief Sign-on Invitation

Here's an request from friend-of-the-blog, Tim Iglesias (San Francisco):

I am writing to invite you to sign on to an amicus curiae brief by housing scholars in an important inclusionary zoning case currently before the California Supreme Court. A draft of the brief  is attached. I am also attaching a one pager with a brief description of the case, a summary of the argument of our brief, and the names of people who helped draft it.

If you wish to sign on, please email me ([email protected]) directly ASAP, but at the very latest by Tuesday, March 18th with the following information: Full Name, Title, your academic or other scholarly affiliation (for identification purposes only), and Address (street, city, state & zip code).
 
Thank you very much for considering this request.  I am happy to answer any questions you might have about the litigation or the brief.
 
Sincerely,
 
Tim Iglesias

Texas A&M Seeks Visitors

Texas A&M University School of Law seeks applicants for one or more Visiting Professors for one or two semesters in the 2014-15 academic year.  We are focusing our search on two subject areas: (1) natural resources and environmental law (including related areas such as energy law, land use law, water law, biodiversity law, hazardous waste law, and wildlife law); and (2) patent law (including related intellectual  property subjects).  Applicants should have demonstrated outstanding academic and scholarly achievement in their respective areas, as well as strong classroom teaching.  The Visiting Professors will teach one or two courses each semester and will be encouraged to participate broadly in the intellectual life of the law school.  
 
Salary will be commensurate with qualifications and experience.  Funding is available for professional travel and development activities.
 
Review of candidates will begin immediately.  Expressions of interest should be submitted as soon as possible and will be reviewed on a rolling basis until positions are filled.  Candidates should submit a cover letter including a statement of interest, a curriculum vitae, and a list of references, including their telephone numbers and email addresses, to Professor Meg Penrose, Chair of the Faculty Recruitment Committee, at the following email address: [email protected].
 
An Equal Opportunity Employer, Texas A&M University is committed to employing quality faculty who will enhance the rich diversity of our academic community.  In that regard, we are particularly interested in receiving applications from a broad spectrum of qualified people who are representative of the state’s diversity.

Navajo Veterans Face Dire Housing Shortage

The L.A. Times looks at the poor housing conditions of Navajo military veterans:

Nearly 9,000 military veterans live on the reservation that straddles the New Mexico-Arizona border, more than half of them in what the U.S. Department of Veterans Affairs says is substandard housing. For years, few funds were allocated for reservation housing for veterans, and much of what was allocated did not reach its intended targets because of mismanagement, U.S. and tribal officials say. Federal veterans' home loan guarantees cannot be used to build homes on tribal land.

 

The World's Worst Landlord?

Time magazine profiles a contender:

A Kansas City woman called police over the weekend after finding what she suspected might have been a hidden camera in her apartment, but what turned out to be much worse.

Police uncovered 11 hidden cameras throughout her home hidden in false smoke detectors and pinholes, including two directed at the toilet and two at the shower, according to the Kansas City Star. Others were found in the living room, hallway and the woman’s bedroom. All were connected to wires leading into the building’s basement, where they connected to a computer monitor featuring seven video screens.

Hinchliffe on the Rule Against Perpetuities

Sarah Hinchliffe (William & Mary VAP) R.I.P. Rule Against Perpetuities – Halloween in Trust Law. Where are We Now, and Where Should We Be? on SSRN.  Here's the abstract:

Long has there been a debate about the validity of the Rule Against Perpetuities, and whether it is time to extinguish the Rule in the United States. I argue that, yes, and put to rest any claims against a reintroduction of the Rule in the United States. I discuss deficiencies in previous – and current – approaches that sought to abolish the RAP in the United States, and the degree that these approaches can be purposefully adapted to achieve uniformity that is consistent with the equilibrium present in trust law. This article seeks to identify the progressive shift in trust law, and cautions against it shifting too far in favor of beneficial interests. I propose that States’ adopt a uniform abolishment of the Rule Against Perpetuities, and suggest a method to achieve this. While there appears to be limited difference in the introduction of the GST tax following 1986 from a fiscal perspective, the author identifies that there exist incentives for settlors, and requisite States if the proposal identified in this article is followed. Therein, this paper outlines the need to clarify beneficial entitlements under a Dynasty Trust, which is important on two accounts: (i) prevention of trust shopping; and (ii) highlighting the importance of establishing residency requirements under tax law to avoid triggering tax avoidance rules. Part I examines the balance that trust law strikes between implementing the settlor’s donative intent and protecting the interests of trust beneficiaries in the transferred property. Part II probes claims by the ALI, and concludes that trust law should not prevent a settlor from requiring trust assets to be invested in a fashion manifestly harmful to the interests of the trust’s beneficiaries. This, it is argued, is necessary to ensure a balance be maintained in trust law in the United States.

Hudson on Forest Federalism

Blake Hudson (LSU) has posted Dynamic Forest Federalism (Washington & Lee Law Review) on SSRN.  Here's the abstract:

State and local governments have long maintained regulatory authority to manage natural resources, and most subnational governments have politically exercised that authority to some degree. Policy-makers, however, have increasingly recognized that the dynamic attributes of natural resources make them difficult to manage on any one scale of government. As a result, the nation has shifted toward multi-level governance known as "dynamic federalism" for many if not most regulatory subject areas, especially in the context of the natural environment. The nation has done so both legally and politically — the constitutional validity of expanded federal regulatory authority over resources has consistently been upheld by courts in recent decades and federal, state, and local governments have been increasingly politically engaged in addressing environmental harms. Yet, remnants of "dual federalism" — which conceives of constitutionally protected, separate spheres of governance as between the federal and state governments — impact the governance of certain resources, like subnational forests. The preservation of the nation’s forests, in turn, is critical to environmental well-being in the coming decades, especially when considering the crucial role of forests in combating climate change. The entrenchment of legal and political dualism in the forest context stymies federal inputs into subnational forest management at a time when state and local governments are unlikely, given current trends, to curb the destruction of a significant acreage of the nation’s forests over the next fifty years. This Article, first, uses forest resources as a case study to shed light on the broader constitutional debate regarding dual versus dynamic regulatory approaches in the United States. Second, the Article is the first to thoroughly detail the under-analyzed status of subnational forest management regulation on the dual-dynamic federalism spectrum and the first to make a normative argument that U.S. forest policy should become more dynamic to avoid the unmitigated destruction of resources of increasing value to the nation, and indeed the globe, in a time of climate change.

Tax Reform Proposal Slices Many Real Estate Deductions

The LA Times summarizes the major tax reform proposal floated by Rep. Dave Camp, chariman of the House Ways and Means Committee:

So what did Camp propose? For the vast majority of individuals and corporations, enticingly lower marginal rates of 10% and 25%, plus a substantially increased personal standard deduction — $22,000 for married joint filers, $11,000 for singles. Individuals with annual incomes above $400,000 and joint filers above $450,000 would pay taxes at a marginal rate of 35%.

In exchange, say bye-bye to the mortgage interest deduction in its current form. The $1-million limit on mortgage amounts that qualify for interest deductions would phase down to $500,000 in four annual steps, with no indexing to inflation. This would effectively diminish its value year after year as inflation takes its bites.

The good news on interest deductions: Anyone with an existing mortgage of $500,000 or higher on the date the tax bill takes effect would be grandfathered for the life of the loan. The bad news: Interest write-offs on home equity borrowings, currently limited to $100,000, would be prohibited unless the money was being used to improve your property.

Another set of changes Camp would make: He'd revise the present $500,000 and $250,000 capital gains exclusions for profits on sales of homes by joint filers and single filers, respectively. Under today's rules, you can claim a tax-free exclusion once you've owned and lived in a home for two years out of the preceding five years and you can do so once every two years.

Under Camp's proposal, you'd need to own your house for five out of the preceding eight years to claim a tax-free exclusion and you could exercise this privilege only once every five years. Capital gains exclusions for home sellers with high incomes — $250,000 a year for singles and $500,000 a year for joint filers — would be phased out altogether over a period of years.

Besides these, Camp's tax bill would End all deductions for local property taxes, which he considers subsidies for excessive spending at the local government level.

Our Waterless Future

Eric Holthaus interviews the mayor of Tucson, Arizona on the challenges facing the Southwest and how climate change could affect land use in desert regions:

Slate:What are the biggest challenges in creating a 21^st-century water policy in Tucson? Is private industry showing resistance? Could climate change lay your best plans to waste?

Rothschild: I think the two biggest challenges are still education and technology. We’re spending $3 million a year in conservation education programs. We've got people in our schools, talking to our elementary kids all the time.

On technology, we won’t be able to solve this problem without more work. But what are those technologies going to be? We recently received an IBM Smarter Cities Challenge grant, where they sent eight of their top engineers out here to work with us to help make our city more efficient. Part of their solution was improved meters that can be read in real time and can be monitored in real time. If there's a water leak, you don't have to wait 30 days to catch it when it shows up on your bill. I can't even imagine what the next technologies are going to be. Tucson has the ability to hopefully lead in developing water technologies for people around the world going through the same issues.

Don't Shoot Trespassing Dogs

In Arkansas, a jury awarded $145,000 to a man whose hunting dog was shot deadwhile he was trespassing on another man's land. From the account:

Newell Gill and three hunting companions, Mackie Edmonds, Lee Edward McGriff, and Darrel McGee, all of Star City, were coon hunting in late 2012 on the North Branch of White River National Refuge in Monroe County when their dogs crossed over onto private property and treed a raccoon.

The dogs had trailed and treed raccoons that were attracted to corn dispensed by deer corn feeders on the landowner’s property, according to Gill’s attorney, Charles Sidney Gibson of Dermott. Gibson said coon dogs cannot be called off once they tree; they have to be pulled off by hand and leashed.

Though there were posted signs on the property, there was no phone number to call for permission to retrieve the dogs. “The hunters rightfully put away their guns and went to retrieve the dogs,” Gibson said. When they did so, they encountered an irate man armed with a rifle.  The man, Frank Newby of Holly Grove, threatened to shoot the dogs and the hunters if they attempted to retrieve the dogs. Over Newby’s objections, Gill retrieved his dog, a 4-year-old treeing Walker named Buck, and leashed him. Newby then ordered Gill to back away from the dog so he could shoot him. Gill refused and the man shot the leashed dog.

“It was a horrible experience for Newel Gill to helplessly watch his leashed dog’s execution then thrash around his feet in agony,” Gibson said. “Gill has nightmares yet about that night.” Gill filed a civil suit against the man and was awarded $145,000. The 5-man, 7-woman Lincoln County jury on Wednesday awarded Gill $100,000 in punitive damages and $45,000 in compensatory damages.

Weisbord on The Connection Between Unintentional Intestacy and Urban Poverty

Reid Weisbord (Rutgers) has posted The Connection Between Unintentional Intestacy and Urban Poverty (Rutgers Law Review) on SSRN.  Here's the abstract:

Most people think of estate planning and testamentary freedom as issues for the rich and middle class, but there is much to learn about inheritance patterns in lower economic populations. This Essay examines the connection between urban poverty and decedents who failed to appreciate the consequences of dying intestate (without a will). Unintended intestacy causes wealth to fractionate, a problem of particular concern when a decedent owned real property in which surviving family members reside. For individuals near or below the poverty line, the unexpected loss of an anticipated inheritance by an intended beneficiary can cause devastating social and economic consequences. This is especially true for intended beneficiaries forced to vacate the decedent’s home.

For Boys, Leaving Poverty is Hard

Given the policy focus on breaking up concentrations of poverty, this is certainly depressing:

It’s well known that  living in high-poverty neighborhoods has a significant effect on the mental health of children. Now a new study in the Journal of the American Medical Association offers a nuanced look at what happens after children leave these environments. It highlights a paradox: According to the study authors, led by Harvard professor Ronald Kessler, boys who move into more affluent neighborhoods report higher rates of depression and conduct disorder than their female peers.

Buy why?

The reason for the disparity between boys and girls isn’t exactly pinned down. Kessler points to various factors—community perception, interpersonal skills—as major points of influence: “We had an anthropologist working with us, and the anthropologist went and talked to and watched the kids in the old neighborhoods and the new neighborhoods, and their perception was that when the boys came into the new neighborhood they were coded as these juvenile delinquents,” says Kessler. “Whereas with the girls, it was exactly the opposite. They were embraced by the community—‘you poor little disadvantaged thing, let me help you.’”

Fraley on Labor, Waste, and the Evolution of Property

Jill Fraley (Washington and Lee University) has posted Finding Possession: Labor, Waste, and the Evolution of Property (Capital Law Review).  Here's the abstract:

Although possession has long been intimately linked to labor, recent historical work on land claims during the sixteenth and seventeenth centuries suggests that the clash of divergent legal cultures of possession drove the two apart. This clash yielded an American concept of possession much more deeply connected to industrialization than the traditional understanding of labor. By providing evidence of how our concept of labor was industrialized, this article questions the outcomes in modem possession cases, particularly as they impact development and environmental preservation in rural areas.

Couple Finds $10 Million Worth of Gold Coins in Old Tin Can

 Finders Keepers?

A senior expert at the firm representing a Northern California couple who discovered buried gold coins worth $10 million says he has not received any credible claims to the huge find and does not expect to.

Numerous theories have cropped up since the discovery of the Saddle Ridge Hoard was announced last week. One of them, that the coins were tied to a 1901 U.S. Mint theft in San Francisco, appeared to be debunked Tuesday by the U.S. Mint itself.

“We do not have any information linking the Saddle Ridge Hoard coins to any thefts at any United States Mint facility,” U.S. Mint spokesman Adam Stump said in a statement, adding that lawyers have looked into the matter.

The Northern California couple, only identified as John and Mary by Kagin's, had walked the path on their gold country property for years before they spotted the edge of a rusty can peeking out of the moss in February 2013. When the lid cracked off, they found dirt-encrusted coins, some in better condition than those on display in museums.

The Saddle Ridge Hoard, named for the space on their property, may be the most valuable cache ever found in North America, with an estimated value of more than $10 million. If you melted the coins, the gold alone would be worth $2 million, said David Hall, co-founder of Professional Coin Grading Services in Newport Beach, who recently authenticated them.

The Most Terrifying Lawyer Commercial on the Interweb

Because its Friday and I love all things Pittsburgh (and, yes, this is real):

McLaughlin on Perpetual Conservation Easements in the 21st Century

Nancy McLaughlin (Utah) has posted Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here? (Utah Law Review) on SSRN.  Here's the abstract:

The public is investing billions of dollars in conservation easements, which now protect an estimated 40 million acres throughout the United States. But all is not well. Uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of conservation easements as a land protection tool. This short article is part of a series of articles published in the law review discussing conservation easements, with a focus on what we have learned thus far and where we should go from here. This article sets the stage by describing the dramatic growth in the use of conservation easements, the various laws that impact easement creation and administration, a timeline of important legal and policy developments, and the recent surprising lack of certainty and consensus regarding what it means to protect land “in perpetuity” or “forever” with a conservation easement. The article concludes by discussing how the perpetuity issue might be productively resolved.

Why Don’t the Japanese Value Their Old Homes?

A new Freakonomics podcast investigates the surprisingly disposable nature of Japanese homes:

It turns out that half of all homes in Japan are demolished within 38 years — compared to 100 years in the U.S.  There is virtually no market for pre-owned homes in Japan, and 60 percent of all homes were built after 1980. In Yoshida’s estimation, while land continues to hold value, physical homes become worthless within 30 years. Other studies have shown this to happen in as little as 15 years.

Does this make  sense? Not according to Alastair Townsend, a British-American architect living in Japan, who is perplexed — and awestruck — by the housing scenario there: "The houses that are built today exceed the quality of just about any other country in the world, at least for timber buildings. So there’s really no reason that they should drop in value and be demolished."

Fascinating stuff.

White & Reid on Bankruptcies and Loan Modifications in the Foreclosure Crisis

Alan White (CUNY) & Carolina Reid (Berkeley - City Planning) have posted Saving Homes? Bankruptcies and Loan Modifications in the Foreclosure Crisis (Florida Law Review) on SSRN.  Here's the abstract:

Do homeowner bankruptcy filings work to delay or prevent home foreclosures, and how do they compare to voluntary loan modifications specifically targeted to mortgage relief? The 2007–2012 financial crisis provides a unique opportunity to assess whether bankruptcy can help homeowners avoid the negative consequences of over-indebtedness and mortgage default. This empirical study analyzes a large, loan-level mortgage dataset to determine which variables are associated with delinquency and bankruptcy filing, and in turn, whether filing bankruptcy or receiving a loan modification measurably influences subsequent loan outcomes (e.g., foreclosure sale, prepayment, or default cure). Overall, we find that bankruptcy filings delay foreclosures but are not generally effective in curing payment defaults, especially when compared to modifications negotiated outside of bankruptcy, which are highly effective. We also find, consistent with prior research, that variations in state bankruptcy and foreclosure law greatly influence debtor outcomes from one state to another. Bankruptcy filing is more effective in states with nonjudicial foreclosure and limited homeowner protections.

Zoning By Any Other Name, Houston Edition

Houston is the only city of any size in America without zoning regulations.  But land use regulation continues to creep into the innerworkings of the Bayou City. Elizabeth Rhodes highlights the newest expanaion of historic districts:

Houston City Council's voted to designate the Starkweather subdivision of Independence Heights as a historic district. This marks only the second time this designation has been awarded to a neighborhood outside the 610 Loop.  The subdivision, which includes only 25 lots on E. 31st 1/2 St. between Yale and Cortlandt, features classic 1930s-era homes and is located about two blocks north of the 610 Loop. 

Designating a neighborhood as a historic district isn't just for show. Property owners in these districts are limited in how they may alter the fronts of their homes and historic district houses are far more difficult to demolish as they are subject to the city's preservation rules. [...] There are now 21 historic districts in Houston, including Starkweather.

(HT: Matt Festa)

Map of the Day: Russia's Fear

The map states: "Since 1989 (red line) pro-EU-forces have moved 1500 km eastward (yellow line).