PropertyProf Blog

Tennessee Hates Buses

According to Wired, Tennessee has imposed a state-wide ban on Bus Rapid Transit:

Tennessee lawmakers overwhelmingly voted in favor a bill that bans the construction of bus rapid transit (BRT) in two counties, one of which includes the city of Nashville. ¹

The impetus for the vote was a proposal to build a $174 million BRT system in Nashville called The Amp, which would’ve ran on a 7.1 mile route and served rapidly growing neighborhoods across the city. There’s a more detailed summary of the project over at The Tennessean.

Although BRT has been shown to revitalize economies and reduce congestion, opponents of The Amp voiced concerns about the safety of unloading bus passengers along roadways and whether private land would be used to build dedicated bus lanes.

Jordan on the Rule Against Perpetuities and the Relation Back Doctrine

Martha Jordan (Duquesne) has posted Requiem for Pennsylvania's Rule Against Perpetuities? (Duquesne Law Review) on SSRN.  Here's the abstract:

The purpose of this article is not to debate the wisdom of repealing the rule against perpetuities but to highlight two arcane problems created by the repeal. Both of these problems derive from the interaction of the doctrine of relation back with powers of appointments. The doctrine of relation back deems the exercise of a special or a testamentary general power of appointment as the completion of an act begun by the donor when the power was created. Consequently, the perpetuities period for contingent interests created by the exercise of a special or a testamentary general power of appointment begins when the donor creates the power, not when the donee exercises it.

The Property Story at Bundy Ranch

It's not often an individual citzen manages to bully the federal government, but that's exactly what's happening out in Utah:

Twenty-one years ago, rancher Cliven Bundy stopped paying his grazing fees.

Bundy does not recognize federal authority over land where his ancestors first settled in the 1880s, which he claims belongs to the state of Nevada. The Bureau of Land Management disagreed and took him to federal court, which first ruled in favor of the BLM in 1998. After years of attempts at a negotiated settlement over the $1.2 million Bundy owes in fees failed, federal land agents began seizing hundreds of his cattle illegally grazing on public land last week.

But after footage of a BLM agent using a stun gun on Bundy's adult son went viral in far-right circles, hundreds of armed militia supporters from neighboring states flocked to Bundy's ranch to defend him from the BLM agents enforcing the court order. The states'-rights groups, in echoes of Ruby Ridge and Waco, came armed and prepared for violence. "I'm ready to pull the trigger if fired upon," one of the anti-government activists told Reuters. Not eager to spill blood over cattle, the BLM backed down Sunday and started returning the livestock it had confiscated. The agency says it won't drop the matter and will "continue to work to resolve the matter administratively and judicially."

10 Ancient Theaters That You Can Still Visit

For the classics buffs among you.

Schorr on Water Rights in Mandate Palestine

David Schorr (Tel Aviv) has posted Reform of Water Rights in Mandate Palestine (Water History) on SSRN.  Here's the abstract:

This article surveys the water law of Palestine under British rule, identifying the legal norms governing the use of water and explaining some of the factors shaping the development of this area of the law. It argues that despite their lack of official lawmaking power, Arabs and Jews succeeded in decisively shaping the course taken by water law in this period.

After surveying the Ottoman water law in force when the British took power in 1917, the article examines influential court decisions in a case brought by the Arab residents of the village Artas against government expropriation of water, and explains the significance of this litigation for the subsequent development of Palestine's water law. It then turns to British initiatives meant to reform water law and subject the country's water to state control, plans frustrated by the opposition of Zionist groups fearful of increased government regulation. It closes by noting that water law was made in this colonial context neither by imposition from above nor by resistance from below, but by intervention of subject peoples at the highest levels of official lawmaking.

Renting is Expensive . . .

. . . and appears to be getting even more so:

Nationally, half of all renters are now spending more than 30 percent of their income on housing, according to a comprehensive Harvard study, up from 38 percent of renters in 2000. In December, Housing Secretary Shaun Donovan declared “the worst rental affordability crisis that this country has ever known.”

Apartment vacancy rates have dropped so low that forecasters at Capital Economics, a research firm, said rents could rise, on average, as much as 4 percent this year, compared with 2.8 percent last year. But rents are rising faster than that in many cities even as overall inflation is running at little more than 1 percent annually.

One of the most expensive cities for renters is Miami, where rents, on average, consume 43 percent of the typical household income, up from a historical average of just over a quarter.

The New York Times Covers Gentrification

The New York Times' Room For Debate series recently covered the pros and cons of gentrification.  Law professors were represented by Wisconsin's Lisa Alexander:

Urban centers with significant subsidized and rent-restricted affordable housing stock should consider using legal tools to preserve their subsidies for the long term. Some cities like Chicago have created municipally-run community land trusts, while other community groups have created nonprofit land trusts, which take ownership of the land under homes, cooperatives, rental units and businesses.

This strategy makes home ownership more affordable by taking the cost of land out of a property's purchase price, while also controlling what happens on the land. A CLT retains ownership of the land, and then leases the use of it to home owners or commercial ventures. The ground lease includes resale price restrictions that preserve affordability for future generations while still allowing investors to earn profits from the appreciation of their homes or businesses). And studies show that homeowners and residents of these community land trusts are less likely to go into foreclosure than market-rate owners.

PennLaw: Property Rights in South Asia

The PennLaw is hosting an upcoming two-day workshop to explore property law regimes in South Asian societies. While the full conference papers aren't yet available, it's worth checking out the very interesting paper abstracts that are posted. The papers cover a range of topics including property rights under sharia law, land rights in post-colonial countries, and women's property rights under Indian law. The conference theme is described as follows:

What is property? Considered in the context of the contemporary societies of South Asia—with their bursting populations, pervasive land hunger, and ongoing tug of war between the urban and the agrarian, the developmental and the neoliberal, and the elite and subaltern—the answer may seem to go without saying. The question’s extreme simplicity of form, however, should not conceal the great complexity it harbors. Even strictly from the contemporary perspective—whether philosophical, legal, or economic—there is little agreement on the nature and basis of property. Is there a difference between property and the right to property? Are rights, themselves, inherently proprietary? If we speak of property as a social relation must we necessarily also be speaking about rights that are in some sense legal? What is the relationship between the logic of property and the logic of commodification? What of property’s relationship to possession, occupancy, use, and de facto control? Does that relationship imply that property is simply the reality of control over things in the world or is it a conceptual system for representing how control over such things is organized, parsed, and reckoned with? Is there something inherently Eurocentric or otherwise misleading about calling all such conceptual systems by the name of ‘property’? If we restrict our focus to property in land or rudimentary—rather than highly financialized—‘moveables’ are these difficulties likely to multiply or diminish? Finally, how do we go about meaningfully interrogating these questions not just through reference to our contemporary world but the much more daunting historical worlds of the past?

A Question on Teaching Takings

Here's a question that came through the inbox.  Any thoughts, property profs??

I'm considering switching to teaching takings first instead of last; I've heard of people who do it and I can see the appeal.  But what I'm wondering is how you deal with what seems like the embedded concept of nuisance as background principle.  Does that have to come first? Do you tell students to just go with it and figure out nuisance later? Any thoughts would be much appreciated.

Kochan on Federal Public Lands

Donald Kochan (Chapman) has posted Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act (BYU Law Review) on SSRN.  Here's the abstract:

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State.

Utah’s TPLA presents fascinating issues for the areas of public lands, natural resources, federalism, contracts, and constitutional law. It represents a new chapter in the long book of wrangling between states in the West and the federal government over natural resources and public lands ownership, control, and management. The impact is potentially considerable — thirty-one percent of our nation’s lands are owned by the federal government, and 63.9% of the lands in Utah are owned by the federal government.

This Article provides an overview of the legal arguments on both sides of the TPLA debate. In the end, there is a credible case that rules of construction support an interpretation of the Utah Enabling Act that includes some form of a duty to dispose on the part of the federal government. At a minimum, the legal arguments in favor of the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further clarification of public lands law and the relationship between the states and the federal government regarding those lands. Moreover, other states are exploring similar avenues to assert their claims vis-à-vis the federal government and are in various stages of developing land transfer strategies that will model or learn from the TPLA. That fact further underscores the need for a renewed serious and informed legal discussion on the issues related to disposal obligations of the federal government. This Article takes a first step into that discussion.

Chicago's Vanishing Middle Class

The website, Sociological Images, explains the above map:

Borrowing data from education scholar Sean Reardon and sociologist Kendra Bischoff, Daniel Hertz calculated where the median family income of each Census tract fell relative to the entire metropolitan area. Orange tracts are ones where the median family income is 0-45% of the median for Chicago as a whole (struggling families), dark green tracts are ones where the median is 200% or more (resource rich families). Grey is, literally, middle class.

The World's Most Visited Tourist Attractions

This is so much fun (Only three European sites in the top 20?  Can we really call Grand Central a tourist attraction? Disney!).

Klerman on Choice of Law in Property Disputes

Daniel Klerman (USC) has posted Jurisdiction, Choice of Law and Property on SSRN.  Here's the abstract:

Jurisdiction and choice of law in property disputes has been remarkably stable. The situs rule, which requires adjudication where the property is located and application of that state’s law, remains the norm in most of the world. This article is the first to apply modern economic analysis to choice of law and jurisdiction in property disputes. It largely confirms the wisdom of the situs rule, but suggests some situations where other rules may be superior. For example, in disputes about stolen art, the state where the work was last undisputedly owned may be both the most efficient forum and the best source of applicable law.

Foreclosing Lenders Turning to Courts for Protection?

The conventional wisdom has been that mortgage lenders should, when possible, avoid foreclosing through the judicial process since involving the courts can result in long delays and the incurring of substantial legal expenses and court costs.  However, in a surprise turn of events Bloomberg News reports that many lenders are now showing a preference for the judicial foreclosure process as a way to protect themselves from a regulatory/legal misstep that might lead to fines or damages.  You can read the article here:

Lenders are increasingly using U.S. courts to foreclose on delinquent homeowners in states where it’s not required to reduce the risk of falling afoul of new protections . . . The shift to the courts comes after laws were passed in states such as California and Hawaii that give consumers new tools to fight foreclosure. . . “Going through the judicial process now protects lenders,” said Thomas Lawler, a housing consultant and former chief economist at Fannie Mae. “Even though it takes longer, all sorts of eyes starting with the judge’s will reduce the likelihood of mistakes and potential liability under new foreclosure laws.”

Man Dumps Fiancee Via Text, She Keeps $53K Engagement Ring

Think, then text:

On July 1, 2012, only three months before their wedding, [Christa] Clark, a nail technician from upstate New York, received a shocking text message from Billittier, co-owner of Chef’s Restaurant and her fiancé of three years, according to a story published by the Buffalo News. He informed her that their relationship was over. “You’re doing this through a text message?” she replied. Billittier promised to reimburse Clark for money she had spent on wedding preparations. He then added, “Plus you get a $50,000 parting ring. Enough for a down payment on a house.”

A few weeks later, angry that Clark was still in contact with his family, Billittier texted, “Keep it up, and I will take back the ring as well.” His final message: “You by law have to give it back. You’re nowhere near the person I thought you were. You don’t deserve it.”

Those text messages sealed Billittier’s fate. Judge Russell P. Buscaglia ruled that because Billittier referred to the ring as a “parting gift,” it no longer was associated with the promise of marriage. “I was being sarcastic, like a game show host – you get a parting gift,”  Billittier claimed, in his own defense. That excuse didn't hold up for the judge, who called it a classic case of "giver's remorse."

Gerhart's on Property Law and Social Morality

Peter Gerhart (Case Western) has a new book, Property Law and Social Morality (Cambridge U. Press), that many readers should find interesting.  From the publisher:

Peter Gerhart has published a book entitled Property Law and Social Morality with Cambridge University Press.   The book develops a theory of property that highlights the social construction of obligations that individuals owe each other. By viewing property law through the lens of responsibility rather than the lens of rights, the author affirms the existence of important property rights (when no obligation to another exists) and defines the scope of those rights (when an obligation to another does exist). By describing the scope of the decisions that individuals are permitted to make and the requirements of other-regarding decisions, the author develops a single theory to explain the dynamics of private and common property, including exclusion, nuisance, shared decision making, and decision making over time. The author also develops an evolutionary theory that shows how property and markets embody social recognition norms.  Because the theory reflects the principle of equality, the author recommends that the Supreme Court replace the regulatory takings doctrine with a limitation on government power based on equal treatment of owners.

Section 8 'Welcome' Signs Cause Stir

The whole story here is worth reading for property profs - it's a tale of landlord/tenant, zoning, & neighborhood associations, and it features some great quotes from guest blogger Chris Odinet:

“Section 8 Welcome” is not a sign one might expect to see in the desirable Southdowns neighborhood, with its streets lined with stately oak trees and well-manicured lawns. But last week, property manager Steve Myers, who owns about 50 properties in the 70808 ZIP code, put out targeted ads in front of some of his Southdowns rental properties advertising to low-income residents. Section 8 refers to a federal housing voucher program, offering rent payment assistance for private housing based on income levels and family composition.

The signs didn’t last long. The three he put out last week were stolen or torn apart within 24 hours, Myers said.

[...] Paul Naquin, a member of the Southside Civic Association, has been a longtime critic of Myers and has assisted the city-parish in filing lawsuits against the landlord by compiling evidence that he was renting to unrelated people. “We don’t want our neighborhood downgraded,” said Naquin, who said he was speaking as an individual homeowner and not on behalf of the civic association. “I’m sure there are some good people involved in Section 8 — but it’s not what we’re used to in the neighborhoods.” Naquin softened his comments since an interview last week on radio station WRFK’s “Jim Engster Show,” in which he stated he and other Southdowns residents do not want poor people in their neighborhood because they are more likely to commit crime.

Meier on Van Valkenburgh v. Lutz

Luke Meier (Baylor) has posted A Contextual Approach to Claim of Right in Adverse Possession Cases: On Van Valkenburgh v. Lutz, Bad Faith, and Mistaken Boundaries (Lewis & Clark) on SSRN.  Here's the abstract:

This Article shows that, in adverse possession disputes, a uniform approach to the claim of right inquiry can produce undesirable results. To reach the desired result in one type of adverse possession case, a court might be forced to adopt a particular approach for determining whether the possessor had the required state of mind (“claim of right”). In a different type of adverse possession case, however, using this same approach might produce a result that the court finds objectionable. Thus, to reach the desired outcome for each type of adverse possession case a court must resolve, a court might be compelled to adopt a different test for measuring the possessor’s state of mind. This Article suggests that much of the confusion regarding the claim of right inquiry can be attributed to a failure to recognize the analytical point made herein — namely, that a uniform approach to the claim of right inquiry will often be problematic. Recognizing that adverse possession arises in factually distinct contexts — and accepting that different rules could apply in each of these contexts — should resolve much of the confusion associated with the claim of right inquiry.

Seidemann on A Review of Recent Cemetery and Human Remains Legal Issues

Ryan M. Seidemann (La. AG - Lands & Natural Resources Chief ) has posted How Do We Deal With All the Bodies? A Review of Recent Cemetery and Human Remains Legal Issues (Univ. of Baltimore J. of Land and Development) on Bepress.  Here's the abstract:

The law of the dead is now precipitating a lively debate in the legal community.  Scandals are increasingly rocking the death care industry, an industry enjoying greater attention with the aging Baby Boom generation.  Regulators and attorneys now must address an array of issues that revolve around death.  And the law of the dead is a unique animal.  It is neither property nor health care; real estate nor contract; yet it has elements of each of those areas of the law, as well as environmental law, zoning, and general torts, but it lies comfortably in none of these fields entirely.  This hybrid area of the law can be confusing for those who do not often practice the law of the dead, as many of the odd realities surrounding corpses has led to unique jurisprudence.  What do you do when a cemetery is in the path of your development project?  Are we so strapped for burial space that people need to bury loved ones in their suburban yards?  How do you protect yourself as an employer when an employee has sex with a corpse on the job?  All of these questions and more are included in this review and analysis of the recent jurisprudence of the dead that will serve as a primer for anyone dealing with the law of the dead.

Map of the Day: Maternity Leave