PropertyProf Blog

Americans are Moving Less

Richard Florida looks at a new study:

the evidence suggests that Americans are moving less because they're changing jobs less often, and they're changing jobs less often because the money to be gained from doing so just isn’t as good as it was in the past.

Houston is Really, Really Big

Beltway 8 in Houston laid over other cities.  Here's Houston v. Oahu:

(HT: Matt Festa)

Smith on the Elements of Possession

Henry Smith (Harvard) has posted The Elements of Possession (Book Chapter) on SSRN.  Here's the abstract:

This Chapter offers a bottom-up account of possession that builds on salience-based accounts of conventions and on the economics of property rights. Possession is a first cut at a legal ontology in an overall modular architecture of property. The legal ontology divides the world up into persons and things, and establishes associations between persons and things. These associations will be in the interest of use, and so possession will usually require stylized duties of abstention on the part of other potential users. Depending on the nature of the group, the resources, and the universe of possible uses, duties of abstention can be implemented though norms of exclusion or governance of particular uses. What counts as a “thing” emerges from a combination of possession and accession, and so these aspects of property form a basic module, which serves as a basic default regime that can be displaced by more refined rules of title and governance. Possessory customs tend to be formalized into law, and yet for reasons of information cost, basic notions of possession retain their importance in many, especially informal, contexts. From the basic modular architecture many of the puzzling features of possession receive an explanation.

Welfare Queens in Cowboy Hats

Paul Krugman does land use, Cliven Bundy, and the American welfare state:

Start with the narrow issue of land use. For historical reasons, the federal government owns a lot of land in the West; some of that land is open to ranching, mining and so on. Like any landowner, the Bureau of Land Management charges fees for the use of its property. The only difference from private ownership is that by all accounts the government charges too little — that is, it doesn’t collect as much money as it could, and in many cases doesn’t even charge enough to cover the costs that these private activities impose. In effect, the government is using its ownership of land to subsidize ranchers and mining companies at taxpayers’ expense.

It’s true that some of the people profiting from implicit taxpayer subsidies manage, all the same, to convince themselves and others that they are rugged individualists. But they’re actually welfare queens of the purple sage.

And this in turn means that treating Mr. Bundy as some kind of libertarian hero is, not to put too fine a point on it, crazy. Suppose he had been grazing his cattle on land belonging to one of his neighbors, and had refused to pay for the privilege. That would clearly have been theft — and brandishing guns when someone tried to stop the theft would have turned it into armed robbery. The fact that in this case the public owns the land shouldn’t make any difference.

Fershee on Zoning and Hydraulic Fracturing

Joshua Fershee (West Virginia) has posted Facts, Fiction, and Perception in Hydraulic Fracturing: Illuminating Act 13 and Robinson Township v. Commonwealth of Pennsylvania (West Virginia Law Review) on SSRN.  Here's the abstract:

Hydraulic fracturing for oil and natural gas is perhaps the most polarizing energy issue in the United States and around the world, and Pennsylvania has emerged as an example of passionate views both for and against hydraulic fracturing for shale gas. To limit local government restrictions on gas drilling, the Pennsylvania legislature passed Act 13 in September 2012, and the Act largely eliminated the ability of local governments to restrict oil and gas operations through zoning. The Pennsylvania Supreme Court overturned Act 13 in December 2013.

This Article reviews how Act 13 came to be, highlights the key provisions of the Act, and explains the various rationales used by the court to overturn the Act. The Article then takes a critical look at the Pennsylvania Supreme Court’s reliance on unsupported facts and illustrates how even well-meaning assumptions applied to highly complex issues can cause more harm then good. The Article further argues that the court did not sufficiently analyze the full scope of environmental impacts of Act 13 and the related natural gas output that would accompany it. After the court decided to engage in the environmental analysis (rather than deferring to the legislature on policy matters), a detailed fact-gathering and analysis process was warranted to avoid adopting common misconceptions as legal facts.

To be clear, this Article does not argue that the court was wrong to question the potential environmental impacts of hydraulic fracturing. Instead, it argues that the court’s decision failed to consider the full host of potential environmental risks related to energy extraction and production, which provide necessary context when considering the proper way to manage the corpus of the public trust and enforce the environmental protections mandated by the Pennsylvania Constitution. The Article cautions that a majority of the court appears to have relied on “fracking distractions,” which are real social or environmental risks that are incorrectly, and inappropriately, linked with hydraulic fracturing. Despite the court’s laudable focus on environmental protection, the Article also argues that the decision could cause unintended problems beyond the natural gas industry, unless future courts read the case narrowly. The Article concludes that a more tailored version of Act 13 may be feasible and that a renewed commitment to determining and analyzing the full complement of pertinent facts related to hydraulic fracturing is warranted and necessary to minimize potential environmental and social harms and to maximize potential benefits.

Land Loss in Rural Cambodia

Karen Coates, a senior fellow at the Schuster Institute for Investigative Journalism, has a short piece at Slate on how a combination of informal land rights and the global rush for agricultural land is seperating Cambodian peasants from their traditional farming areas:

Land disputes frequently exacerbate the problem, yet land rights rarely enter the global conversation about the future of food. These days it seems every major think tank and analyst has answers to the “9 billion people problem,” involving five-step plans and solutions-oriented conferences aimed at feeding the world. Many experts agree: The world will need to ramp up food production by 70 percent in future years.

There’s a big push for “big ag” in the developing world. But shifts toward mechanized agriculture with amped-up production “will not solve the problem: it will make it worse,” writes Olivier De Schutter, the U.N. specialist on the right to food. Large-scale investments in farmland do less to reduce poverty “than if access to land and water were improved for the local farming communities.”

Bright & Whitehouse on English Housing Law

Susan Bright (Oxford) and Lisa Whitehouse (Hull) have released a report looking at housing possession cases in England and Wales. It is available here.  Here's the abstract:

The report presents the findings of one aspect of a project which explores how non-financial considerations become known to key actors involved in the possession process,  and in particular the judge. Over the last two years,  they have conducted interviews with key actors and distributed surveys to court delivery managers and housing possession court duty schemes. These surveys sought detailed information about the legal process of possession including case management and the amount of advice and support available to defendants at court premises. The report focuses upon the outcome of these surveys,  but also draws on the interviews,  and other sources.

Contreras on Property Law and Dr. Seuss

For a fun and creative read on this springtime Friday, check out this article entitled No Matter How Small ... Property, Autonomy and State in Horton Hears a Who! (New York Law School Law Review) that was recently posted to SSRN by Jorge L. Contreras (American).  Here's the abstract:

This essay was presented at New York Law School Law Review's 2013 Symposium "Exploring Civil Society through the Writings of Dr. Seuss". It explores property law concepts that appear in Dr. Seuss's classic children's book "Horton Hears a Who!" and analyzes their relationship to the author's personal history and the sociopolitical landscape of post-war America.

Squatters 1, Soldier 0

A story out of Florida has a lot of people angry:

Soldier Michael Sharkey was deployed to Afghanistan two years ago and asked a friend to watch over his house in New Port Richey, Florida. Sharkey never thought that he would have to fight a battle to save his home from ex-convict squatters.

As reported by WFLA News Channel 8, strangers broke into the home Sharkey shared with his wife Danielle, changed the locks, then moved in. The squatters, Julio Ortiz and his girlfriend Fatima Cardoso, then refused to leave. Ortiz claims that there was a verbal ‘contract’ made with Sharkey’s friend who was watching the home. Mr. Ortiz said the agreement was that he would live there rent-free while he renovated the house, then later a rental agreement would be worked out. However, Sharkey and Lisa Pettus, Sharkey’s friend, say there was no such agreement.

[...] Sharkey went to the house [with] a sheriff’s deputy with . . .  but was unsuccessful in removing the two squatters. Instead, after Ortiz told the deputy that there was a verbal agreement, the deputy told Danielle that it was a civil matter and he could do nothing.

I find the comments to the story most fascinating. Despite the disputed facts, calls for violence against the "squatters" are almost unanimous.

Calandrillo et al. on Smart Growth

Steve Calandrillo (Washington), Chryssa Deliganis (Independent), & Andrea Woods (Washington - Student) have posted Making 'Smart Growth' Smarter (George Washington Law Review) on SSRN.  Here's the abstract:

The "smart growth" movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies. This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political motivations to inconsistent judicial determinations to NIMBYs to constitutional takings jurisprudence.

This Article predicts dramatically increased land use litigation as the likely result of smart growth legislation in the coming decades unless legislatures and courts enact sensible reforms today. If we want "smart growth" to live up to its name, we must remove it from local politics, get serious about consistently enforcing urban growth boundaries or priority funding areas, and even consider reforming America’s individualistic notion of private property rights as we know it.

The Giant Arrows That Guide You Across America

Twentieth Century GPS:

Long before the days of radio (and those convenient little smartphone applications), the US Postal service began a cross-country air mail service using army war surplus planes from World War I, many piloted by former army flyers. To get the planes and everybody’s mail safely across the country by air, the postman was going to need a little help.

In 1924, the federal government funded enormous concrete arrows to be built every 10 miles or so along established airmail routes to help the pilots trace their way across America in bad weather conditions and particularly at night, which was a more efficient time to fly.

By World War II, radio was king and the airway beacons were obsolete. [...] While no one bothered to remove the concrete arrows, many have probably been caught up by development but an outline could still be visible from the air if they were just covered over by a grass lawn.

Chang & Fennell on Partition and Revelation

Yun-chien Chang (Academia Sinica) & Lee Fennell (Chicago) have posted Partition and Revelation (Chicago Law Review) on SSRN.  Here's the abstract:

Judicial partition works like a private taking, yet it has been under-theorized. Existing literature has focused on partition in kind and partition by sale, while ignoring intermediate partition approaches like partial partition that are prevalent in practice. Little attention has been given to the use of revelation mechanisms such as self-assessment, nor to how judicial partition rules cast a shadow on co-owners’ pre-judicial-partition behaviors. This Essay addresses these shortfalls and enriches the debate on the efficiency of legal rules governing partition. Our primary contributions include bringing partial partition into the theoretical framework and proposing new self-assessment-based partition rules that can extract information about co-owners’ valuations without creating distortions in co-owner behavior. Note: The attached document includes the appendices to the Essay.

Hills on Hydrofracking and Home Rule

Rick Hills (NYU) has posted Hydrofracking and Home Rule: Defending and Defining an Anti-Preemption Canon of Statutory Construction in New York (Albany Law Review) on SSRN.  Here's the abstract:

Extracting natural gas through hydraulic fracturing of shale provokes bitterly divisive reactions from New Yorkers. With such a division of opinion, the regulation of hydraulic fracturing provides an ideal case study of whether municipal home rule can mitigate the costs of deep political disagreement by letting each community go its own way. This article argues that Article IX, section 3(c) of the New York Constitution, requiring that the home rule powers of municipalities be “liberally construed,” requires courts to observe a presumption against preemption. Where a state statute is ambiguous about the scope of local laws that it preempts, then the statute should be presumed to preserve local laws from preemption. Such a presumption, however, is not irrebuttable. Under the presumption defended here, even ambiguous state laws can preempt local laws where the latter impose external costs on non-residents or disrupt the settled and investment-backed expectations of the local government’s own residents. Local prohibitions of hydraulic fracturing provide an illustration of how these general “home rule” principles can be used to resolve a real dispute, because such prohibitions impose neither an external cost on non-residents’ interests in extracting gas nor an “internal” cost on local residents’ property rights. Local political processes and fiscal instruments like property taxes and impact fees take into account the value of natural gas to non-resident purchasers, while resident landowners’ expectations in extraction of their gas are matched by equally settled expectations of their neighbors in quiet enjoyment of their land.

Mortgage Debt Relief Equals Big Tax Bill?

The Washington Post reports that many homeowners who received principal write-downs as part of national efforts to blunt the harsh effects of the housing crisis, and thereby avoid additional foreclosures, are now facing sizable income tax bills. Although the Senate Finance Committee recently approved a two-year reauthorization of the Mortgage Forgiveness Debt Relief Act, commentators report that it may get held up in the House of Representatives. Not a good sign for the continued recovery of the housing sector: 

Struggling homeowners across the country could face significant new tax bills if they receive mortgage relief from their banks, a prospect that threatens to slow the housing recovery and put further strain on distressed borrowers. The collapse of the housing market and plunging home prices left millions of people stuckowing more on their mortgages than their homes were worth. Some have worked with their banks to reduce the loan amount to avoid foreclosure or enable a sale. In 2007, Congress adopted a law that spared those homeowners from being taxed on the amount of the loan that was forgiven. But that tax break expired in December, and now the forgiven debt can be counted as income by the IRS. Housing advocates worry that the lapse could scare homeowners away from making a deal with their bank, which could disrupt efforts to reduce foreclosures and harm borrowers who were just getting back on their feet.

The Tragedy of the Bay Area Housing Market

TechCrunch has a lengthy piece on the housing fiasco in the San Francisco area:

San Francisco has a roughly thirty-five percent homeownership rate. Then 172,000 units of the city’s 376,940 housing units are under rent control. (That’s about 75 percent of the city’s rental stock.)

Homeowners have a strong economic incentive to restrict supply because it supports price appreciation of their own homes. It’s understandable. Many of them have put the bulk of their net worth into their homes and they don’t want to lose that. So they engage in NIMBYism under the name of preservationism or environmentalism, even though denying in-fill development here creates pressures for sprawl elsewhere. They do this through hundreds of politically powerful neighborhood groups throughout San Francisco like the Telegraph Hill Dwellers.

Then the rent-controlled tenants care far more about eviction protections than increasing supply. That’s because their most vulnerable constituents are paying rents that are so far below market-rate, that only an ungodly amount of construction could possibly help them. Plus, that construction wouldn’t happen fast enough — especially for elderly tenants.

So we’re looking at as much as 80 percent of the city that isn’t naturally oriented to add to the housing stock.

The piece is quite thorough and contains lots of insight into the Bay Area's history and housing politics.

Huber on The Durability of Private Claims to Public Property

Bruce Huber (Notre Dame) has posted The Durability of Private Claims to Public Property (Georgetown Law Journal) on SSRN.  Here's the abstract:

Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too?

If there is, here is what it might look like: private claims to public property are remarkably durable. Consider private claims to the lands and resources owned and managed by the federal government. Once established, these claims — of which there are hundreds of thousands — seem, in many instances, to take on a life of their own. Mining claims, leases for the development of coal or oil and gas, grazing permits, hydropower licenses, ski resort leases, even residential leases — claims such as these are often extended, expanded, renewed, and protected by law and by bureaucratic practices in ways that shape, and often trump, other policy objectives with respect to federal land. Newer claim-ants, and policies that would favor new land uses or alter the mix of uses, tend to be disfavored. These tendencies create a set of managerial and policymaking difficulties that constrain lawmakers and land managers and that ultimately disserve the interests of the citizens in whose interest state property ostensibly is managed.

This Article examines the durability of private claims to public property, first, by providing a set of examples, and second, by explaining how the American historical experience and legal system combine to give public property this character. Third, it suggests implications for both theory and practice, in particular cautioning that lawmakers should take into account the phenomenon described here before granting new forms of access to various public resources.

Is Spring the Best Time to Sell a Home?

The LA Times investigates:

It's common knowledge verging on holy writ in real estate: Spring is the absolute best time of the year to sell a house. Right? But is there hard statistical evidence that listing your house in April, May or June — flowers blooming, birds chirping, lawns greened up after a tough winter — actually nets you a higher price or a shorter time from listing to sale?

[...]  A study of 1.1 million home listings between 2011 and 2013 in 19 major markets by the national realty brokerage firm Redfin found that, contrary to popular impressions, houses put on the market in winter — defined as Dec. 21 through March 21 — had a 9-percentage-point greater probability of selling within 180 days and at a smaller discount to the initial list price than houses put on the market during the spring months (March 22 to June 21). The advantage jumped to 10 percentage points over summer listings (June 22 to Sept. 20). Winter listers ultimately sold for prices slightly higher than homes listed during any other season.

Dyal-Chand on Protecting Non-Owners in Property Law

Rashmi Dyal-Chand (Northeastern) has posted Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law (American Law Review) on SSRN.  Here's the abstract:

Property law has a particular problem with non-owners. Although property law has a very clear understanding of the rights of “owners,” it has only a vague understanding of the rights of “non-owners.” The problem is significant, because modern property law is so often called upon to balance the rights and needs of owners and non-owners. With so vague an understanding of one set of rights, property law cannot adequately perform this function. The New Jersey case of State v. Shack exemplifies this problem, because it purports to be a case about protecting non-owners. By examining both the case and the texts upon which the Court relied in deciding the case, this Article argues that the New Jersey Supreme Court could not understand, and therefore could not adequately protect, the non-owners in the case. Instead, in its effort to evince a set of rights powerful enough to overcome the property owner’s rights, the Court eliminated the voices of the migrant workers it claimed to protect.  

This Article draws upon postcolonialist theory both in examining the problem and in prescribing a solution. In its prescription, the Article proposes a pragmatic form of postcolonialist inquiry as a theoretical foundation for protecting non-owners in property law. Relying on the less iconic case of Hilder v. St. Peter, the Article proposes three devices within the common law tradition that are well suited to the task of representing and protecting non-owners. As Hilder demonstrates, by the pragmatic use of storytelling, the personalization of claims, and the precise matching of remedies to harm and need, legal decision-makers can more fully consider and protect the rights and needs of non-owners.

Map of the Day: Social Security Disability Benefits

Oliveri on Single Family Zoning and the Right to Choose Household Companions

Rigel Oliveri (Missouri) has posted Single Family Zoning, Intimate Association, and the Right to Choose Household Companions (Florida Law Review) on SSRN.  Here's the abstract:

Many local governments use single family zoning ordinances to restrict occupancy in residential areas to households whose members are all related to one another by blood, marriage, or adoption. The Supreme Court upheld such ordinances in the 1974 case of Belle Terre v. Boraas , and they have been used to prevent all sort of groups from living together – from unmarried couples who are raising children to college students. This Article contends that Belle Terre is wholly incompatible with the Court’s modern jurisprudence on privacy and the right of intimate association. The case appears to have survived this long because of a reflexive deference paid to the “police power,” which gives local governments wide latitude to pass laws to promote the general welfare of the community. This Article disputes that the police power can stretch so far, and asserts that Constitutional protection should attach to the choice of household companions. If such protection is accorded, the reasons traditionally given for such ordinances – reduction of overcrowding, protection of children – fail to stand up to heightened scrutiny. This Article also takes issue with so-called “functional family” reforms, which allow groups who resemble or operate like families to live in single family zoned areas. While these reforms do expand the class of people who can choose their household companions, they leave untouched the assumption that governments can regulate this decision absent a compelling reason. Moreover, they allow government actors to decide, based on largely subjective criteria and after an often invasive inquiry, whether groups of people are sufficiently “family-like” to live together. If the right of intimate association within the home is to have any force, it must be available to everyone, regardless of their identities, motivations, or characteristics.