PropertyProf Blog

NIMBY Gains a Foothold in China

Alexa Olesen looks that the growing environmental NIMBY protests in China:

The Chinese word for NIMBY is “linbi,” a pairing of the characters for “neighbor” and “avoid” that is meant to allude to the original English phrase in both sound and meaning. The word doesn’t show up in most Chinese dictionaries, a sign of just how young the phenomenon is there (though the definition can be found online). Most trace the beginning of the movement to the peaceful strolling protests and banner-waving that happened in the summer of 2007 in the coastal city of Xiamen that brought to a halt plans for a chemical plant in that city. The tenor of those demonstrations, which were largely organized via SMS, was cooperative and upbeat, not antagonistic.

Not all Chinese NIMBY actions have been so tranquil in the years since. It’s not clear whether this reflects a more aggressive response from police in cities where the protests are happening, or if the protestors are instigating the violence, or some combination of both.

(HT: The Daily Dish)

Mattingly on How Political Structures Affect Property Rights

Daniel Mattingly (Berkeley - Ph.D.) has posted The Perils of Power-Sharing: How Representative Institutions Can Weaken the Rule of Law and Property Protections on SSRN.  Here's the abstract:

What limits the power of the state to confiscate wealth? One widely-held view is that the most effective way to strengthen property protections is to introduce "inclusive institutions." However, I argue that formal power-sharing institutions can be used by political leaders as a tool to incorporate influential social elites into the state, strengthening rulers' control over society and weakening property protections. Using evidence from surveys and experiments, I show that when kinship group elites are incorporated into village governments in China it triples the likelihood of land expropriations. While land requisitions in China often benefit villagers, the political co-optation of local elites allows the state to elicit villagers' compliance with expropriations that have negative consequences. These findings suggest that the power of social connections to hold officials accountable in an authoritarian state is limited, and reinforce other work showing that informal institutions can be biased in favor of elites.

Map of the Day: Most Commonly Spoken Langugage (Other than English or Spanish)

Murray on Class and Takings

Yxta Maya Murray (Loyola - LA) has posted Peering (Georgetown Journal on Poverty Law & Policy) on SSRN.  Here's the abstract:

“Peering” designates a legal practice of gazing at poor people. Legal actors literally peer, that is, look at the poor; they also peer in another fashion, which determines whether the visual subject is their peer. If the observed falls short of the observer’s social class, the law fixes them in their “proper place.” In the Fifth Amendment takings context, this means they are at risk for condemnation.

This article traces peering’s evolution in Fifth Amendment law. It notes peering’s initial descent: From the 1920s until the 2000s, courts looked “down” at the poor, often describing them as monstrous. “Slums” – edifices typically depicted as housing contagious subhumans – proved perfect objects of condemnations since they threatened the upper strata. In the 1980s, however, another legal gaze flourished: One that looked “up,” and whose bearers peered themselves with wealthy developers. In cases stemming from Michigan’s 1981 Poletown Neighborhood Council v. City of Detroit to the Supreme Court’s 2005 Kelo v. City of New London, we find rhetoric signaling legislative and judicial alignment with affluence. Here, lawmakers and judges approved condemnations that fostered “world class” and “cutting edge” corporate factories. I call this the ascendant or aspirational gaze, and in its exuberant optics, both the poor and the middle class find themselves vulnerable to “economic rejuvenation” takings. An active lobby of activists and judges challenge this gaze with petit bourgeois perspectives, leading to reform. But the poor submerge in these visuals, finding vanishing chances to escape “blight” condemnations.

To understand and combat peering, I study Columbia University’s recent expansion into West Harlem. I contemplate New York Court of Appeals’ 2010 Matter of Kaur v. New York State Urban Development Corporation, which approved of Manhattanville’s condemnation, and also the political rhetoric and blight reports that justified the taking. I additionally reference interviews with members of the Harlem community, and offer their home photographs as counter‐images to the ones that filled the blight reports. Inspired by the legal history I recount, as well as the testaments and images offered by Harlem residents, I describe the racist, classist, and violent meanings of blight findings. I reject “blight” as unsalvageable, but sketch a Fifth Amendment doctrine that would foster what one Harlem leader describes as a “decent life.”

The Global Market for Real Estate

A million dollars doesn't go as far as it used to:

The New Yorker takes a look at the real estate market in Vancouver:

The most expensive housing market in North America is not where you’d think. It’s not New York City or Orange County, California, but Vancouver, British Columbia.

[...] Almost by chance, the city has found itself at the heart of one of the biggest trends of the past two decades—the rise of a truly global market in real estate. We’re all familiar with the stories of Russian oligarchs buying up mansions in London, but this is a much broader phenomenon. A torrent of capital from wealthy people in emerging markets—from China, above all, but also from Latin America, Russia, and the Middle East—has flowed into the real-estate markets of big cities in other countries, driving up prices and causing a luxury-construction boom. A recent report by Sotheby’s International Realty Canada examined more than twelve hundred luxury-home sales in Vancouver in the first half of 2013 and found that foreign buyers accounted for nearly half of sales.

[...] The challenge for Vancouver and cities like it is that foreign investment isn’t an unalloyed good. It’s great for existing homeowners, who see the value of their homes rise, and for the city’s tax revenues. But it also makes owning a home impossible for much of the city’s population.

The piece concludes by suggesting that Vancouver might want to levy a tax on foreign owners or restrict them from making real estate purchases.  That seems like a really really terrible idea.  Why not just roll back some of the zoning restrictions in places like New York or San Francisco or Vancouver and increase the supply of housing?  We should be celebrating, rather than lamenting, that rich foreigners want to pay (North) Americans to build expensive stuff.

(HT: Andrew Sullivan)

Williams on the Right to Housing in South Africa

Lucy Williams (Northeastern) has posted The Right to Housing in South Africa: An Evolving Jurisprudence (Columbia Human Rights Law Review) on SSRN.  Here's the abstract:

This Article focuses on recent South African constitutional and statutory jurisprudence regarding the right to housing, and attempts to analyze both its transformative possibilities and its doctrinal limitations. The South African Constitutional Court’s housing rights jurisprudence is more developed than that regarding any other social and economic right contained in the South African Constitution, with eviction cases having been a particular focus of the Constitutional Court. I address three aspects of major recent South African cases relating to the right to housing: the concept of judicially required “meaningful engagement” between government entities and individuals threatened with eviction, the prohibition of unfair practices by landlords and tenants under the Rental Housing Act 50 of 1999, and developments in the concept of just and equitable eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Housing Act 19 of 1998. In each context, I first describe the important ways in which this jurisprudence has benefited the poor and then present a critical perspective identifying both issues of concern and what might be called “unintended consequences.” I conclude by arguing that while the universality and moral force of human rights discourse assists in giving meaning and content to housing rights by exposing the social construction of poverty and by shifting the focus from individual fault and dependency to society’s responsibility, human rights discourse alone provides limited analytical assistance in addressing the difficult economic and institutional questions that must be faced in order to make housing rights a reality.

How We Think About Place

Every book "about Africa" has the same cover:

Michael Silverberg unpacks the image, first put together by the blog, Africa is a Country:

The texts of the books were as diverse as the geography they covered: Nigeria, Zimbabwe, South Africa, Botswana, Zambia, Mozambique. They were written in wildly divergent styles, by writers that included several Nobel Prize winners. Yet all of books' covers featured an acacia tree, an orange sunset over the veld, or both. "In short," the post said, "the covers of most novels 'about Africa' seem to have been designed by someone whose principal idea of the continent comes from The Lion King." [...]

I asked Peter Mendelsund—who is an associate art director of Knopf, a gifted cover designer, and the author of a forthcoming book on the complex alliances between image and text—to help me understand how the publishing industry got to a place where these crude visual stereotypes are recycled ad nauseam. (Again and again, that acacia tree!)

He points first to "laziness, both individual or institutionalized." Like most Americans, book designers tend not to know all that much about the rest of the world, and since they don't always have the time to respond to a book on its own terms, they resort to visual cliches. Meanwhile, editors sometimes forget what made a manuscript unique to begin with. In the case of non-Western novels, they often fall back on framing it with "a vague, Orientalist sense of place," Mendelsund says, and they're enabled by risk-averse marketing departments.

 

Odinet on Equity and the Inter-City Competition for Economic Development

Christopher Odinet (Southern) has posted Fairness, Equity, and a Level Playing Field: Development Goals for the Resilient City (Idaho Law Review) on SSRN.  Here's the abstract:

In the wake of the Great Recession and in the midst of a political climate that endorses the devolution of governmental power to more localized levels there has been a resurgence in recent years of the idea of the city as the center of American life. Competition between cities in capturing economic development projects has become palpable. Success can lead to job creation and growth, private investment, and, importantly, increased tax revenues. Cities often compete with one another by each offering their own package of public incentives. In the waning hours of negotiations hundreds of millions of public dollars can be promised in order to obtain the ultimate prize.

In view of this intense competition cities must be prudent when competing for and championing private projects that are clothed with the mantle of economic development. An unbridled desire for growth can lead to the support of projects that inure to the benefit of the few at the expense of the many. This Article posits that a truly resilient city is one that places equity and fairness at the forefront of its economic development decision-making by creating a level playing field where equal economic opportunity is the centerpiece. And in those cases where it is decided that public resources should be accorded to the benefit of a particular private interest for the greater good, the process from which these decisions ultimately derive must be considered, sober, tempered, and informed. In adopting such a policy view new developments and physical systems, so essential to a city’s success, will be rooted in a philosophy that not only engenders a business climate of opportunity and equality, but also lays an economic foundation for the city to weather future economic storms.

Rent-Regulated Tenants Excluded From Amenities

The New York Times recently ran a fascinating article on the growing divisions between market-rate tenants and rent-controlled tenants who occupy the same building.  In short, apartment-building-owners are adding amenities that are exclusively for the market-based tenants.  Unsurprisingly, the rent-controlled tenants are upset and feel disrespected:

When a playroom opened in Michael Reilly’s Upper West Side building two years ago, he asked the concierge for a key to the space so his toddler could play there. The concierge’s answer stunned him: It was out of bounds to him and his child.  Mr. Reilly’s building, the Windermere West End, a luxury rental, is one of several in the city that prohibit rent-regulated tenants from using new services like gyms, playrooms and rooftop gardens. Some co-op and condo buildings have similar restrictions. [...]

“It’s a subtle form of harassment. It sends a message: You’re not as good as my tenants who pay more,” said New York State Assemblywoman Linda Rosenthal, who introduced legislation requiring landlords to offer amenities to rent-regulated tenants. Ms. Rosenthal described Stonehenge Village as “the tipping point” in a growing problem. [...]

Developers point to rules governing rent-regulated leases as a reason for restrictions. If a developer offers a gym to a rent-regulated tenant and later decides to remove it, the landlord would have to get permission from the Division of Housing and Community Renewal, the state agency that oversees rent rules. Otherwise, tenants could be entitled to a rent reduction and reinstatement of the service.

(HT: Peter Gerhart)

Stahl on Mobility and Community in Urban Policy

Kenneth Stahl (Chapman) has posted Mobility and Community in Urban Policy (The Urban Lawyer) on SSRN.  Here's the abstract:

Urban policymakers have long debated whether to focus on people or on places. Should the government give poor people the means to leave deteriorated neighborhoods, or attempt to bolster such neighborhoods by reinforcing the social norms of the community? Should cities direct the police to crack down on low-level crime, or foster informal connections between the police and local institutions? Definitive answers to these questions have been elusive, but Robert Sampson’s new book GREAT AMERICAN CITY, perhaps the most ambitious work of urban sociology in a generation, provides some needed insight. Using a massive set of data, Sampson demonstrates that people are ineluctable products of their local environments, and he concludes that “place-based” policies that focus on building community are more likely to be successful than policies premised on the assumption of individual mobility and choice.

This essay revisits the “people v. places” debate in light of GREAT AMERICAN CITY. Though the book is sure to have a tremendous impact on that debate, Sampson devotes relatively little attention to the policy implications of his work, and thus I attempt to articulate and probe what I see as the book’s major policy implications. Principally, I interpret Sampson’s work as an implicit challenge to the predominant public choice model of local government, which conceptualizes urban residents as mobile individuals who make locational choices regardless of social context. Seen in this light, GREAT AMERICAN CITY raises important questions about the wisdom of policymakers’ longstanding reliance on the public choice model, but also leaves much to speculation. I further argue that Sampson’s findings – particularly regarding the difficulties that disadvantaged neighborhoods face in overcoming the stigma of crime and poverty – give reason to doubt the viability of some of the place-based policies he champions, which risk further stigmatizing such neighborhoods. Finally, I argue that in light of Sampson’s findings, efforts to aid disadvantaged communities might be most effective if they undertook to induce people to stay in such communities, a possibility that Sampson does not explore. I conclude that, despite some shortcomings, GREAT AMERICAN CITY is worthy of the highest praise, for it clarifies a wide range of questions for policymakers and opens broad vistas for future research.

San Francisco is Unlivable

San Francisco, we officially have a problem.  This 875 square foot house (that appears barely fit for human habitation) is going on the market for 1.7 million dollars.  Maybe now that even fancy lawyers and doctors cannot afford to live in the city we'll start to see some push back on the city's insane land use regime.

Kaufman et al. on Protecting the Human Right to Housing by Promoting the Right to Counsel

Risa Kaufman (Columbia), Martha Davis (Northeastern), and Heidi Wegleitner (Independent) have posted The Interdependence of Rights: Protecting the Human Right to Housing by Promoting the Right to Counsel (Columbia Human Rights Law Review) on SSRN.  Here's the abstract:

This Article trains the lens of international human rights to explicate the relationship between the right to counsel in civil cases and a right to housing. A strength of the human rights framework is its recognition of the interrelationship of rights: civil, political, economic, social and cultural. Just as the right to housing is a lynchpin to the realization of other rights, so, too, is the right to counsel. This article first sets forth the international human rights framework for understanding the U.S.’s obligation to provide a civil right to counsel when basic human needs, including housing, are at stake. It then offers client stories from a legal services organization in Wisconsin, alongside quantitative research, as a way to better understand the impact that legal counsel has on individuals’ ability to secure and protect their housing, and, finally, discusses the implications of advocacy efforts to link a housing rights strategy to efforts to secure the civil right to counsel.

Eminent Domain Abuse on the Rise?

Dana Berliner of the Institute for Justice argues in the affirmative:

After a lull in cases of eminent-domain abuse over the past several years, we are increasingly hearing complaints from home and business owners about government attempts to take property for private development projects….

The [Kelo] decision shocked the nation. In the years that followed, 44 states changed their laws to make eminent domain for private development more difficult. State courts also stepped into the gap—nine high courts, including New Jersey’s, placed state constitutional limits on eminent domain. Chastened by this wave of opposition, most cities and agencies became much more careful in their use of eminent domain.

Unfortunately, this breathing spell seems to be ending. This latest condemnation by the Casino Reinvestment Development Authority is part of a new wave of eminent-domain abuse, as cities and redevelopment agencies try to regain some of the power they lost:

• California actually abolished its redevelopment agencies in 2011. Now cities and powerful development interests have launched a ballot initiative to restore the redevelopment agencies and greatly expand their power to seize properties for private projects.

• In Colorado, Denver suburbs and other cities have been on a spree of condemnations for shopping malls.

• Minnesota, Alabama and Illinois have added powers to state and municipal agencies to condemn for such projects as sports stadiums, industrial developments and business-district economic development.

Winn & McCarter on Eminent Domain and the Seller Holdout Problem

Abel Winn (Chapman - Econ) and Matthew McCarter (Texas - Econ) have posted Who's Holding Out? An Experimental Study of the Benefits and Burdens of Eminent Domain on SSRN.  Here's the abstract:

Eminent domain is widely considered a necessary tool to avoid seller holdout and ensure efficient land assembly. We conduct a series of laboratory experiments that challenge this conventional wisdom. We find that when there is no competition and no eminent domain, land assembly suffers from costly delay and failed assembly, resulting in participants losing 18.1% of the available surplus. Much of this delay is due to low offers from the buyers rather than strategic holdout among sellers. Introducing weak competition in the form of a less valuable substitute parcel of land reduces delay by 35.7% and virtually eliminates assembly failure, so that only 11.5% of the surplus is lost. When buyers can exercise eminent domain the participants lose 18.6% of the surplus. This loss comes from spending money to influence the fair market price and forcing sellers to sell even when they value the property more than the buyer.

This American Life Does Fair Housing

I missed this the first time around, but NPR's always excellent This American Life program recently devoted an episode to fair housing issues.  Here's a summary of the main piece:

Reporter Nancy Updike talks to a group of New York City residents about their frustrating attempts to rent an apartment. With hidden microphones, we hear landlords and supers tell the apartment hunters that there's nothing available. But that's not necessarily true. Forty-five years after the passage of the Fair Housing Act in 1968, ProPublica reporter Nikole Hannah-Jones talks to Nancy about the history of racial housing discrimination in the United States and what has been done — and hasn't been done — to rectify it.

Missouri-Kansas City Seeks Property Visitor

Visiting Faculty Position in Property

The School of Law at the University of Missouri-Kansas City is seeking qualified candidates for a visiting faculty position to teach the first-year Property I & II courses and meet other curricular needs, especially in the property, land use, or environmental fields. The position is a three-quarter-time, benefits-eligible position and will require teaching courses scheduled from August 15, 2014 through May 2, 2015 with administration of a final exam following each semester, and the maintenance of regular office hours.

The University of Missouri-Kansas City recognizes that a diverse faculty, staff and student body enriches the educational experiences of the entire campus and greater community. To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and making every attempt to support their academic, professional and personal success. UMKC is an Affirmative Action/Equal Opportunity employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply. Applicants who are not U.S. citizens must state their current visa and residency status. Pursuant to University policy, all final candidates will be required to successfully pass a Criminal Background Check prior to beginning employment.

Minimum Qualifications

J.D. Prior law school experience teaching Property or related subjects is strongly preferred. Commitment to student-centered, collegial learning environment is required.

Full Time/Part Time

This is a three-quarter-time position.

Salary

Salary is negotiable

Application Deadline

May 26, 2014

Application Instructions

The deadline for applications is May 26, 2014. A complete application includes a letter of application detailing desire and qualifications to teach Property and one or more other law school courses. The application should include a curriculum vitae reflecting the highest degree earned and previous teaching/research and practice experience. The application should be submitted to: UMKC Human Resources http://www.umkc.edu/hr.

If you are experiencing technical problems, please call (855) 523-0002.

For more information, please contact Associate Dean Barbara Glesner Fines

816-235-2380 or [email protected]

Book Announcement on Historic Preservation

Sara Bronin and Ryan Rowberry have recently completed work on "Historic Preservation Law in a Nutshell" -- part of West's Nutshell series.  Here's the publisher's blurb:

Historic Preservation in a Nutshell provides the first-ever in-depth summary of historic preservation law within its local, state, tribal, federal, and international contexts. Historic Preservation is a burgeoning area of law that includes aspects of property, land use, environmental, constitutional, cultural resources, international, and Native American law. This book covers the primary federal statutes, and many facets of state statutes, dealing with the protection and preservation of historic resources. It also includes key topics like the designation process, federal agency obligations, local regulation, takings and other constitutional concerns, and real estate development issues.

A Sunken Ship Story

The New York Times describes the story of an incredible treasure, the legal battle over its ownership, and the adventurer who has disappeared in the aftermath of the court battle:

[T]he quest to salvage the S.S. Central America — which went down in 1857 in a hurricane off South Carolina carrying 425 souls, as well as thousands of coins, bars and nuggets of California gold — has produced a quarter-century of broken dreams and legal nightmares.

[...]  Thirty years ago, Thomas G. Thompson, a plucky Ohio native who was a young engineer at Battelle, began wooing investors with dreams of finding the Central America. Soon, the Columbus America Discovery Group was formed to finance the hunt, including a robot with lights, cameras, arms and claws.  The team hit pay dirt in September 1988: Piles of gold coins and ingots lay scattered across the ship’s rotting timbers, and overnight, the investors became millionaires — in theory, at least. In all, the team lifted up about two tons of gold. If sold today as pure metal, it would fetch $76 million.

Map of the Day: Speed Limits

Qiao on the Status of "Illegal" Buildings in China

Shitong Qiao (Yale - J.S.D.) has posted Small Property, Adverse Possession and Optional Law (Book Chapter) on SSRN.  Here's the abstract:

“How to deal with these illegal buildings?” was the question I was frequently asked in my interviews with government officials in Shenzhen, a Chinese city in which almost half of the buildings were built illegally. To demolish them has proved to be a mission impossible; to legalize them would encourage more illegal buildings. People in China call these illegal buildings small-property houses (xiaochanquan in Chinese) because their property rights are “smaller” (weaker) than those on the formal housing market, which have “big” property rights protected by the government. I frame this Chinese conundrum as an adverse possession question and resolve it by utilizing the optional law framework developed by Ayres. My argument is that the allocation of initial options matters at least as much as the allocation of initial entitlements and that options should be granted to parties that have the best information to make decisions, which in the small-property case, are the numerous individual owners rather than the government. I find that in an effort to grandfather-in existing small properties and deter further development of small properties, the Shenzhen Municipal Government in the last two decades has adopted land use policies that can be neatly categorized into the five rules of legal entitlements under the optional law framework. The only missing rule, Rule 5, also provides a solution to a certain type of cases.