PropertyProf Blog

Dyal-Chand on Sharing in Property Law

Rashmi Dyal-Chand (Northeastern) has posted Sharing the Cathedral (UConn Law Review) on SSRN.  Here's the abstract:

Sharing is an indispensable part of American property law, often mediating the harsh implications of ownership rights. Yet sharing is also a hidden component of this legal structure. In both theory and doctrinal manifestations, sharing is overshadowed by the iconic property right of exclusion. This Article argues that property law suffers a critical loss from its under-recognition of sharing because it fails to use sharing to correct distributional failures in a world of increasingly scarce resources. Sharing could be the basis for developing a rich range of outcomes in common property disputes. Instead, as described by Calabresi and Melamed in their famed article on remedies, outcomes are tagged to exclusion in the form of blanket property rules and “keep out” signs. As a result, sharing currently functions merely to create very narrow exceptions to broad rights of ownership. To correct this failure, this Article presents a model for sharing as a preferred outcome in property disputes. Sharing as an outcome is a powerful means of addressing property inequalities, limiting harmful externalities, preserving efficiency, and harnessing the extraordinary potential of outcomes in property law.

Maryland Votes to Use Eminent Domain to Keep "House of Cards" in State

Volokh Conspiracy is on the case:

Responding to a threat that the “House of Cards” television series may leave Maryland if it doesn’t get more tax credits, the House of Delegates adopted budget language Thursday requiring the state to seize the production company’s property if it stops filming in the state.

[...]  If the measure passes the state senate, it may well be permissible under the state and federal constitutions as currently interpreted by their respective supreme courts.

[...] But even if the courts would uphold this taking, it is extremely foolish policy. State governments rarely condemn mobile property, for the very good reason that if they try to do so, the owners can simply take it out of the jurisdiction – a lesson Maryland should have learned when it tried to condemn the Baltimore Colts to keep them from leaving back in 1984. Moreover, other businesses are likely to avoid bringing similar property into the state in the first place.

Serkin on the State's Affirmative Duty to Protect Property

Christopher Serkin (Vanderbilt) has posted Passive Takings: The State's Affirmative Duty to Protect Property (Michigan Law Review) on SSRN.  Here's the abstract:

As conventionally understood, regulatory takings doctrine protects property owners from the most significant costs of legal transitions. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be, and that governments can violate the Takings Clause by failing to act in the face of a changing world. This is much more than a minor refinement of takings law because government liability for failing to act means that, in at least some circumstances, the Takings Clause imposes an affirmative obligation on the government to protect property. This liability runs counter to conventional understandings of constitutional law in which the Constitution enshrines primarily negative liberties. The Takings Clause, then, can serve as a previously unrecognized basis for affirmative government obligations. The Article ultimately illustrates this new category of passive takings with the example of sea level rise, arguing that ecological threats may compel the government to respond or else face takings liability.

Presentations Recap: Resilient Cities (Idaho)

Disaster, Destruction, and Resilient Cities Panel:

Andrea McArdle (CUNY) started off the morning with a discussion of the need for cities to anticipate the human costs of weather disasters, particularly as they impact vulnerable populations, by analyzing NYC's response to Hurricane Sandy.  John Travis Marshall and Ryan Rowberry (both George State) presented and discussed a prototype strengths and weaknesses index for measuring a city's legal capacity to deal with disasters that, in turn, can be used for the post-disaster allocation of recovery resources.  Lastly, Kellen Zale (Houston) analyzed the policy decisions facing cities when they choose to demolish municipally owned property and then presented an alternative approach to destruction that still builds on resiliency.  

Social Aspects of Resilient Cities Panel:

Palma Strand (Creighton) discussed the idea of "civity" by exploring the city as a complex adaptive system, underpinned by larger social networks and legal frameworks. Melissa Berry (Missouri) introduced the idea of an urban land ethic that rests on a concept that cities are socio-ecological constructs wherein people and nature have a reciprocal ecological relationship.  

Resiliency, Equity, and Economy Panel:

Chris Odinet (Southern) discussed the notion that truly resilient cities must exercise good judgment and prudence in the allocation of public resources in public-private partnerships so as to ensure a level playing field for private businesses and true market competition. Jeff Litwak (Columbia River Gorge Commission) discussed agreements between cross-border local governments and the issues created by their status as interstate compacts, including a call for cities to use interstate compacts as a tool for resiliency.  Jonathan Rosenbloom (Drake) discussed the problems in funding resiliency, particularly through traditional bond financing, and suggested more efficient and progressive means of funding public resiliency infrastructure through public-private partnerships.

Resiliency and Planning for City Growth Panel:

Keith Hirokawa (Albany) stressed the importance of water resources and how a well provided for water infrastructure that allows for the successful delivery of eco-system services can be a critical tool in the long-term resiliency planning of cities.  Tom Wuerzer (Boise State-Community Planning) and Tom Bergin (Blaine County Planning Department) closed out the symposium with a discussion of the issues facing cities related to wildfires and how resilient cities can be better prepared for wildfire disasters through effective mapping and building codes.

Lastly, excellent job to all the faculty and law review students of the University of Idaho College of Law for a tremendously successful event.  Keep on the lookout for the symposium issue of the Idaho Law Review where the articles from the above presentations will appear.

Live Blogging from Idaho's Resilient Cities Symposium

Greetings, all.  I'm here in beautiful downtown Boise blogging from the University of Idaho's symposium entitled Resilient Cities:  Environment | Economy | Equity.  There's an excellent line-up of speakers scheduled for today, all of whom teach or work in the area of property or real estate/urban development.  You can watch the presentations via live streaming video by clicking here.  The students of the Idaho Law Review will be monitoring the live chat function of the streaming video so you can also interact real-time with the symposium presenters.  

Below is the schedule of events (courtesy of Stephen Miller over at the Land Use Prof Blog):

Time	Event
8:00 – 8:30	Registration and Continental Breakfast
8:30 –  9:00	Introduction and Welcome Symposium Introduction:  Alexandra Grande; Tori Osler (ILR symposium student editors) Welcome:  David Bieter (Mayor, City of Boise) Dean's Welcome: Michael Satz (Idaho)
9:00 – 10:30	Disaster, Destruction, and Resilient Cities Moderator: Dale Goble (Idaho) Kellen Zale (University of Houston Law Center) – Urban Resiliency and the Right to Destroy John Travis Marshall and Ryan Rowberry(Georgia State) – Urban Wreckage and Resiliency: Articulating a Practical Framework for Preserving, Reconstructing, and Building Cities Andrea McArdle (CUNY) – Imagining A Resilient New York After Superstorm Sandy
10:45 – 12:00	Social Aspects of Resilient Cities Moderator: Anastasia Telesetsky (Idaho) Palma Strand (Creighton) –Increasing City-System Resilience by Cultivating Civic Social Networks Melissa Berry (University of Missouri) –Thinking Like a City: Grounding Social-Ecological Resilience in an Urban Land Ethic
12:00 – 1:30	Lunch with Keynote Moderator: Barbara Cosens Ken Alex (California Governor’s Office of Planning and Research) – 20-30 minute presentation
1:30 – 1:45	Break
1:45 – 3:15	Resiliency, Equity, and Economy Moderator: Jerrold Long (Idaho) Christopher Odinet (Southern University Law Center) – Fairness, Equity, and a Level Playing Field: Land-use Goals for the Resilient City Jeff Litwak (Columbia River Gorge Commission) – Implementing Resiliency: Urban Services Without Borders Jon Rosenbloom (Drake) – Funding Resiliency
3:15 – 3:30	Break
3:30 – 5:00	Resiliency and Planning for City Growth Moderator: Stephen Miller (Idaho) Tom Bergin (Blaine County Land Use & Building Services) and Tom Wuerzer (Department of Community and Regional Planning Boise State University) – Fire Resilience Policy and Planning at the Wildland-Urban Interface: Impressions from Idaho Keith Hirokawa (Albany) – Planning for Scarcity: Enabling Resilient Urban Water Planning Through Eco System Services
5:00 – 5:15	Concluding Remarks
5:15 – 6:15	Reception

Farber on Property Rights and Climate Change

Daniel Farber (Berkeley) has posted Property Rights and Climate Change on SSRN.  Here's the abstract:

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.

The Disappearance of an American Downtown Icon

Large department stores have been a major part of the downtown real estate landscape in nearly all great American cities. The Journal Sentinel recently chronicled the growing decline of downtown department stores across parts of the U.S., even when publicly subsidized.  It's easy to imagine how these large, vacant buildings will impact downtown development going forward if willing buyers or replacement tenants cannot quickly be found.  You can read the story here.

Downtown department stores continue to disappear, even as cities subsidize them.

Just within the past three years, department store operators have announced downtown closings                 in Indianapolis, Minneapolis, St. Paul, St. Louis and Cincinnati — all Midwestern cities with metro populations comparable to or larger than the Milwaukee area. In all of those cities, the stores or their landlords have received millions of dollars in publicly financed loans, grants and ownership stakes over the past several years.

The Wolf Family Lecture in Real Property

The Wolf Family Lecture Series is endowed by a gift from UF Law Professor Michael Allan Wolf, who holds the Richard E. Nelson Chair in Local Government Law, and his wife, Betty.  Past scholars who have delivered the Wolf Family Lecture in the American Law of Real Property include Tom Merrill, Greg Alexander, Lee Fennel, Joe Singer, and Vicki Been. 

This year, Daniel Farber of Berkeley spoke about his recent work on climate change:

He said if the government is allowed to place restrictions on what landowners can do with their property due to a changing coastline – such as restricting how close to build to the water or preventing the use of “hard-armoring” (sea wall) to protect their land – property values could plummet. On the other hand, if a sea-side cottage is swallowed by the ocean, is it the government’s fault for not stepping in or simply a bad investment?

One possible solution to ease the blow of losing land to the sea might be transferrable development rights – the owner may be given rights to develop in another part of the community.

[...] Farber pointed out that real property lawyers will be a big part of deciding just how these questions and concerns will be addressed.  “I think real property lawyers are going to be involved in a lot of this stuff in a way that will change a little bit the nature of the practice,” Farber said. “There are going to be a lot of issues for clients to worry about, connecting to climate changes, there are going to be a lot of risks to worry about, there are going to be a lot of changes in land use planning.”

Freyfogle on Property Law in Times of Transformation

Eric Freyfogle (Illinois) has posted Property Law in a Time of Transformation: The Record of the United States (South African Law Journal) on SSRN.  Here's the abstract:

Over the century-long period from just before the American Revolution until the end of the Civil War the United States underwent a profound transformation, beginning with its political break from Britain and expanding rapidly to embrace political and economic liberalism and elements of equality and social justice. Importantly, this transformation was aided by fundamental changes to the received English common law of property. Several property-law changes enhanced economic freedom and facilitated industrialization. Other legal changes diminished the power of landowners to dominate the poor socially and economically. Yet further reforms stabilized land tenure and expanded easy public access to natural resources, on private as well as public lands. Along the way, American courts embraced a more instrumental conception of law and carved out greater space for legislatures to regulate uses of property. Many of these changes involved substantial shifts of wealth, yet none was accompanied by significant compensation. In its transformation, South Africa is differently situated from the US of two centuries ago. Nonetheless, the American record may prove instructive, both in its particulars and as an example of how a developing nation, committed to private property and the rule of law, can nonetheless reform the legal elements of ownership without diminishing the institution’s stability and widespread benefits.

Introducing Guest Blogger Christopher Odinet

I'm delighted to announce that Chris Odinet (Southern) has agreed to guest blog here during the month of April.  Chris is magna cum laude graduate of LSU and had a successful real estate practice at Phelps Dunbar before turning becoming a professor. His research interests focus on the intersection of traditional property law concepts with modern commercial and tax policies.  Although 2013-14 is Chris's first year as a full-time academic, his work has already appeared in South Carolina Law Review, the Quinnipiac Law Review, the Louisiana Law Review, and the Idaho Law Review. Welcome Chris!

Top SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days.

 

1.  [189 downloads]  An Overview of the Fannie and Freddie Conservatorship Litigation
      David J. Reiss (Brooklyn)

2.  [93 downloads]  Foreclosure and the Failures of Formality, or Subprime Mortgage Conundrums and How to Fix Them
      Joseph William Singer (Harvard)

3.  [84 downloads]  Property's Structural Pluralism: On Autonomy, the Rule of Law, and the Role of Blackstonian Ownership
      Hanoch Dagan (Tel Aviv)

4.  [83 downloads]  Regulating Land Grabs: Third Party States, Social Activism and International Law
      Lea Brilmayer (Yale) & William J. Moon (Yale)

5.  [80 downloads]  Property Claims Between Cuba and The United States. A Literature Review
      Jesus V. Bu (Independent)

6.  [71 downloads]  The Utopian Promise of Private Law
      Hanoch Dagan (Tel Aviv)

7.  [66 downloads]  Planting Houses in Shenzhen: A Real Estate Market Without Legal Titles
      Shitong Qiao (Yale)

8.  [64 downloads]  The Comparative Method in Property Law
      Bram Akkermans (Maastricht)

9.  [64 downloads]  Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?
      Nancy A. McLaughlin (Utah)

10.  [59 downloads]  Illegal Contract or Contract For Appearance Sake
      Eyal Zamir (Hebrew U.) & Michael Cohen (Hebrew U.)