PropertyProf Blog

Ellickson on The Affirmative Duties of Property Owners

Robert Ellickson (Yale) has posted The Affirmative Duties of Property Owners on SSRN.  Here's the abstract:

As a result of his ownership of property, Rip Van Winkle might have incurred a variety of criminal and civil liabilities during the course of his twenty-year sleep. Possibilities are a conviction for neglecting care of his livestock, civil liability to a neighbor for having failed to contribute to the costs of a fence along a common boundary, and forfeiture of his lands for having failed to pay local property taxes. This essay investigates the nature of these affirmative obligations of owners. Concerns about curbing information costs, a central theme in Thomas Merrill’s scholarly works, underlie the structure of many of these duties, and help explain their relative paucity. The analysis illuminates several recent strands of property theory, including Larissa Katz’s notion that a state may choose to “govern through owners.” It reveals major defects in Gregory Alexander’s argument that owners should bear a generalized obligation to share their wealth. Alexander’s proposed duty would greatly increase the information costs that individuals would bear in navigating daily life, and would embroil adjudicators in tasks far better handled by drafters of tax and welfare legislation.

 

Houses Built Out of Spite

The Atlantic Cities blog does a quick history:

There are a handful of so-called "spite houses" enlivening the streets of America. Thrown up by cranks and malcontents, these structures take many forms but share a common function: To punish the neighbors by blocking their view, blacking out their sunlight, or making their life a little more hellish in some other nefarious way. Many were constructed in the days when building codes were lax, and so their underlying contempt and animosity has been grandfathered into the modern landscape.

[One example:] This envelope of a Seattle dwelling at left above, what some might call a stand-alone hallway, actually sold for an unknown amount in 2013 (the listed price was $397,500). The problem with the Montlake Spite House is not its 860 square feet, which would make for a decent studio in New York. It's how those feet are proportioned, with 15-foot-wide walls at one end cramping down to 55 inches at the other, narrower than a typical prison cell. "The one-bedroom house at 2022 24th Ave. E. in Montlake was built in 1925 by someone trying to get back at a neighbor for making an insultingly low offer for the tiny slice of land on which it sits," writes the Seattle Times. "It worked; the house blocked the neighbors' open space and they moved."

Brophy & Thie on Slaves and Inheritance

Al Brophy (UNC) & Douglas Thie (Independent) have posted Land, Slaves, and Bonds: Trust and Probate in the Pre-Civil War Shenandaoh Valley on SSRN.  Here's the abstract:

“Land, Slaves, and Bonds” samples wills filed for probate in Rockbridge County in Virginia’s Shenandoah Valley from 1820 to 1861, to detail the changes in probate practice during that era of market revolution. We report the gender, familial status, distributions, and use of trusts of the 128 testators sampled. Their choices often involved leaving part of their property to their surviving spouses for their lives, then outright to their sons and in trust to their daughters. Nearly forty percent owned enslaved human property and distributed their slaves among their children. Occasionally they freed their enslaved human property. This study also traces changes in sophistication of wills and accompanying trusts over time. Thus it provides an important window into how Rockbridge County residents used the legal process to transmit wealth between generations and to preserve it.

The forty years leading into Civil War were ones of extraordinary expansion in the economy, communication, transportation, and technology of the United States; the legal technology studied here reflects that growth in wealth and sophistication. At the same time, as the vigorous market economy was expanding -- as testators’ wealth was increasingly reflected in personal property such as stock rather than real property -- there were problems with identifying reliable agents (executors and trustees). Thus, testators continued to place a premium on family members to manage their wealth; and they also took extraordinary means, such as use of sophisticated trust documents and marriage settlements, to maintain property within their families. This study shows that testators turned frequently to legal technology to manage property and keep it within their families. They used the vehicles to keep property out of the hands of creditors, especially the creditors of their sons-in-laws, Thus, legal technology helped balance the impersonal market revolution.

The data have several implications. They reveal how people reacted to the expanding, impersonal economy where property owners frequently had to rely on trust, even if it was dangerous to do so because it was difficult to police the actions of agents. That era of the breakdown of “trust” was a central impetus to the turn to trust documents to protect a family’s wealth. The data show the importance of legal technology in adapting to a rapidly changing economy and a rapidly expanding world. They also demonstrate the rapid rise in sophistication of trusts and relocate the roots of modern trust law, such as the spendthrift trust, to the pre-Civil War era, even though it is frequently written about as a device of the post-War era.

Major Property Decision in Canada

This is a little bit late, but it deserves the notice of the property world.  At the end of June, the Canadian Supreme Court released a major decision about the land rights of aboriginal peoples.  The case, Tsilhqot’in Nation v. Her Majesty the Queen, firmly establishes First Nation claims to a large and defined swath of British Columbia.  In practice, this means that efforts to mine, build pipelines, or develop areas in many areas of BC will be subject to the interests and title of First Peoples.

Here's some historical background from the Globe & Mail.

BC resident and property-prof extraordinaire, Doug Harris, also had a great Op-Ed in the Vancouver Sun explaining the legal issues.  The whole thing is worth reading, but there's a quick summary of the case:

The Supreme Court of Canada recognized a large, contiguous land-mass in central B.C. as aboriginal title lands in the Tsilhqot’in Nation vs. British Columbia case. It is the first time a Canadian court has recognized aboriginal title in a specific territory.

The SCOC also confirmed the broad content of the right. Aboriginal title is a property interest that is derived from exclusive occupation and amounts to a right to exclusive use. Aboriginal peoples are not restricted to using title lands for traditional purposes. Only those uses that would deny future generations the continuing benefit of the land are prohibited.

These elements of the SCOC judgment have received much early attention, and justly so. They will have profound effects on the province and the country.

But the next part of the judgment, described as the justifiable infringement test, also deserves attention. It is here the SCOC has located the balancing of aboriginal title with other rights and interests.

The justifiable infringement test arises once a First Nation has established aboriginal title. At this point, the Crown (either the federal or provincial government) has an opportunity to justify infringements of that title.

The fact aboriginal title may be infringed reveals that it — as other constitutionally protected rights — is not absolute. The recognition of aboriginal title must include some balancing with other rights and, the SCOC indicated, other interests.

(HT: I thank the ever-generous Nick Blomley, Doug Harris, and Matt Harrington for bringing this case to my attention.  Pic: The Musqueam House Post in front of the law school at the University of British Columbia)

Katz on Relativity of Title

Larissa Katz (Toronto) has posted Relativity of Title and Causa Possessionis (Book Chapter) on SSRN.  Here's the abstract:

It is often said nowadays that to any dispute between those who claim possessory rights in a thing, the common law proposes a clear and simple answer: ‘first in time, stronger in right’. Whether the dispute is between a ‘true owner’ and a finder; between two finders; between a bailee and a thief; between two thieves; or between any other putative possessors, the same simple rule claims to tell us whose right is superior. This rule is attractive in its simplicity — temporal priority is all that matters when deciding these disputes — but it is also surprising in its disregard for all other possible considerations. Shouldn’t the law care about the type of possessory claims we are concerned with? Doesn’t it matter (for reasons going beyond the temporal priority of his claim) that one party is in possession as the true owner, or only as a thief, etc.? And don’t the prior interactions between the parties matter to the law, as well? For instance, shouldn’t it matter whether or not one party put the other party into possession in the first place? All these considerations seem to have moral salience when considering who should be entitled to possess a thing. It would be odd if the law took no notice of them.

In this paper, I argue that “first in time, stronger in right” fits best with a view of ownership, and all other rights to possess, as identical rights to exclude. I develop normative, conceptual and doctrinal arguments for another view of the relativity of title that is consistent with a subtler and richer account of ownership as a position of exclusive authority (one that is qualitatively different than other rights to possess). On this account, we resolve disputes among putative possessors in terms of their ‘causa possessionis’ — the normative ground of their claims to possession — and not merely in terms of the temporal priority of their claims. I argue that first in time is not always stronger in right, for these other considerations may sometimes trump temporal priority. Even when the ‘first in time’ rule generates the right answer, it does so in a way that obscures the larger normative framework that explains why that is the right answer.

The Bay Area is Just a Giant Gated Community

The Atlantic Cities blog has a breezy piece about the zip codes with the highest median housing prices:

In the Bay Area, however, housing has become so expensive that much of the middle class has been effectively priced out of home-ownership. Forty-four ZIP codes have median home values above $1 million, just nine have median home values below $300,000, and not a single ZIP code has a median home value below $200,000. In neighboring San Jose, just one of the metro’s 59 ZIP codes had a median home value below $400,000.

The larger picture:

Overall, 33 ZIP codes have median home values of more than $2 million. Nearly all of these were located in the New York, Los Angeles, San Jose, or San Francisco metro areas, with 10 each in the New York metro and the combined San Francisco-San Jose Bay Area. There was one each in Boston, Miami, Santa Barbara, and San Diego.   

Another 201 ZIP codes had median home values of more than $1 million. A whopping three-quarters of these were in just three coastal areas: New York, Los Angeles, and the San Francisco Bay Area. The Bay Area had the largest number, with 60 ZIP codes with median home values of more than $1 million: 44 in San Francisco and another 16 in San Jose. Another 52 were in greater New York, spanning both Manhattan and some second-home enclaves of the Hamptons. And 39 more were in Los Angeles and Orange County. The rest are in places like Boston, San Diego, and Stamford, Connecticut.

Map of the Day: Disproportionately Popular Starbucks Orders

Continuing the week's theme on how America drinks, here's a map of the relative popularity of Starbucks drinks.  (This doesn't mean that Denver's favorite drink is the tea latte. Rather, it indicates that Denverites order tea lattes at a higher percentage than the citizens of any other city):

Kochan on Water Law

Donald Kochan (Chapman) has posted Economic Analysis in the Fourth Generation of Environmental Law: What Role? (Journal of Environmental and Sustainability Law) on SSRN.  Here's the abstract:

Written for the symposium "Environmental Law 4.0: Adaptive and Resilient" at the University of Missouri School of Law, this essay explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It begins with explaining some of the ways that economic analysis can be employed to generate the best environmental rules, including measures under what this essay terms as "economics-based environmentalism."

This includes focusing on the adaptability of markets and the benefits of spontaneous order, the integration of economic principles into any polycentric toolbox of environmental law approaches, the use of property-based externalities' analysis, the use of existing property rights, the creation of property rights, the utility of greater reliance on common law principles and related compensation and liability approaches, the increased use of private contracting terms and private ordering in general to satisfy individual and societal preferences for environmental responses, and the power and responsibility of consumers to demand in the marketplace the provision of environmental goods and services and environmentally responsible behavior rather than relying on the government to instead act with coercion to satisfy such preferences. That portion of the essay concludes with a proposal that would embed in law a requirement that agencies prove the existence of market failure and the exhaustion of economic alternatives to governmental regulation before being allowed to proceed with any top-down, interventionist governmental regulation.

The last portion of the essay focuses on theories from law and economics, including those related to the self-perpetuating behavior of bureaucracies, public choice models of legislation and regulation, and capture theory as barriers to any effective reform in the emerging fourth generation of environmental law -- whether it be those reforms proposed by others or even those suggested earlier in the essay.

Should Parks Operate Like Businesses?

Mindy Craig (PDF) makes the case that city parks need to move to fee-based system:

Setting fees is perhaps one of the most difficult areas for those parks professionals unfamiliar with having a revenue-generating focus. However, completing a comprehensive fee analysis and creating a strategy for revamping fees is a cornerstone of becoming a more entrepreneurial organization. City officials in San Jose undertook this type of evaluation when they realized they could not afford to operate all of the facilities and programs. The officials redesigned the fee structure and program-retention policy to adapt to market trends and community needs, and to dramatically increase their cost-recovery level. By creating a framework to inform every type of fee, like group classes, to higher fees for special-use activities, like wedding venues, programs and facilities became more self-sustaining. To mitigate access concerns for community members who cannot pay, the new fee policy includes scholarships for populations who need assistance. In addition, San Jose used this new policy to end low cost-recovery programs. In 2010-2011, the department reported a 97.4-percent cost-recovery rate!

 

Map of the Day: Where You Can Drink on the Street

One area where Americans aren't very free:

Stark et al. on Protecting Seniors from Reverse Mortgages

Debra Stark (John Marshall), Jessica Choplin (DePaul), Joseph Mikels (DePaul), and Amber McDonnell (John Marshall) have posted Complex Decision-Making and Cognitive Aging Call for Enhanced Protection of Seniors Contemplating Reverse Mortgages (Arizona State Law Journal) on SSRN.  Here's the abstract:

This article explains what reverse mortgages are and how they work. It also analyzes who could potentially benefit from them, but why this type of loan is so problematic for many seniors. The article then considers steps that can be taken to improve the effectiveness of current federal rules and counseling protocols to enable seniors to make well-informed decisions keeping in mind cognitive barriers and the complicated nature of this loan product.

Because many seniors may not be noticing the high costs associated with federally insured reverse mortgages, many believe these loans are now the product of choice for “predatory lending.”

Is Janet Yellen a Nuisance?

According to the Wall Street Journal, the Federal Reserve Chairwoman's new neighbors are not happy:

WASHINGTON—In the Georgetown gated community of Hillandale, residents live in secluded calm governed by some 50 pages of rules banning fences, motorcycles, certain paint colors, tree species and excess dogs and cats (no more than two total per household).

"People come to live in Hillandale because of the quality of our residential community, and that is something that we need to maintain," says resident Sallie Forman.

Then one of the most powerful economic policy makers in the world moved in and, in the words of some here, ruined the neighborhood.

As neighbors tell it, earlier this year, the security detail protecting new Federal Reserve Chairwoman Janet Yellen barreled through the cul-de-sac where she lives in oversize vans loaded with guns, cameras and takeout pizza. It established an "armed camp" next door to Ms. Forman's townhome, according to a written bill of grievances presented by concerned neighbors deeming the uniformed police presence "uncomfortable for residents of various religious persuasions," such as Quakers.

Security trucks, it continued, "weighing approximately 7,000 pounds each" sit idling on the street for "approximately 22 minutes daily" at each Yellen morning pickup. When Ms. Yellen leaves her home, a second truck then "speedily pulls out of the security driveway…all the while spilling fluid onto the street, which has now left a permanent stain." Hillandale bylaws expressly prohibit car fluid spills in the common areas.

Map of the Day: One to Make Beer Snobs Cry

This map of a nonscientific survey of 5,249 Americans shows that the nation has pretty terrible taste in beer.  Note that the survey asked for the respondent's favorite beer, not the beer they drink the most often.  While Bud Light (especially the highly alcoholic Bud Light Platinum) has it's place, this map reminds me of the old Monty Python joke: "How is American beer like making love in a canoe?"  You can Google the punchline yourself, it's not fit for a family blog.

 

Ruple & Keiter on The Future of Federal-State Land Exchanges

John Ruple (Utah) & Robert Keiter (Utah) have posted The Future of Federal-State Land Exchanges on SSRN.  Here's the abstract:

Today, the land ownership map of the West in many places resembles a crazy quilt, without reason or coherent pattern. Often no single owner (states, private entities, or the Federal government) owns enough contiguous land to allow effective management of land holdings, and fragmented ownership patterns generate a plethora of disputes over access and similar problems.

While this paper focuses on examples from Utah, the challenges posed by a fragmented landscape and conflicting management objectives are much broader. Across the 11 contiguous Western states, state trust lands account for twice the acreage of National Parks and trust lands are often interspersed with protected or sensitive lands. Inholdings within National Forests, for example, total 14.3 million acres.9 While many inholdings are owned by private parties rather than state trust land agencies, the fact that National Forest inholdings in the 11 contiguous Western states account for more land than all of Maryland and Vermont combined indicates the scope of the problem.

Texas A&M Seeks IP Scholars

TEXAS A&M UNIVERSITY SCHOOL OF LAW seeks to expand its academic program and its strong commitment to scholarship by hiring two exceptional faculty candidates for tenure-track or tenured positions, with rank dependent on qualifications and experience.  While the law school welcomes applications in all subject areas, it particularly invites applications in: (1) patent law (including related intellectual property subjects); and (2) legal analysis, research, and writing.  Candidates must have a J.D. degree or its equivalent.  Preference will be given to those with demonstrated outstanding scholarly achievement and strong classroom teaching skills. 

This is an especially attractive time to join Texas A&M University School of Law.  Since Texas A&M University acquired the law school from Texas Wesleyan University in August of 2013, applications for admission have increased by over 30 percent and development has grown exponentially, including multiple seven-figure endowed chairs.  The law school is poised to build on its tradition of excellence in scholarship, teaching, and public service through the extensive resources and opportunities that result from being part of a world-class public university. 

Texas A&M University School of Law is located in vibrant downtown Fort Worth.  The Fort Worth/Dallas area, with a total population in excess of six million people, offers a low cost of living and a strong economy.

As an Equal Opportunity Employer, Texas A&M University welcomes applications from a broad spectrum of qualified individuals who will enhance the rich diversity of the law school’s academic community. Applicants should email a résumé and cover letter indicating research and teaching interests to Professor Timothy Mulvaney, Chair of the Faculty Appointments Committee, at [email protected].  Alternatively, résumés can be mailed to Professor Mulvaney at Texas A&M University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102-6509.

Vanderbilt Symposium on Private Wealth Transfer

The papers from Vanderbilt's recent symposium on "The Role of Federal Law in Private Wealth Transfer" are now hitting SSRN.   The Symposium featured a lot of the real heavy-hitters in T&E and is worth checking out.  Of particular note for property profs is a paper by Josh Tate (SMU) on perpetuities.  Here's the abstract for Tate's Perpetuities and the Genius of a Free State:

The recent rise of perpetual trusts has brought new attention to previously obscure state constitutional prohibitions of perpetuities. This comment examines the historical origins of the first such prohibition, Clause 23 of the 1776 North Carolina Constitution and Declaration of Rights, which provided that "perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed." Although many good reasons can be offered for the provision, it is curiously absent from the constitutions of the twelve other original states. Why did this provision emerge only in North Carolina, and not in Virginia, Massachusetts, Pennsylvania, or any of the other “free states” that together rose up against their colonial masters?  

This Comment suggests a possible answer to that question. Although the problems with perpetuities were well known to learned inhabitants of all the newly independent American states, those problems were particularly salient in North Carolina in 1776 due to that colony’s unique history as a former proprietary colony. The decision by the heir of one of the original Lords Proprietors not to sell his share back to the British crown gave rise to specific grievances in North Carolina that did not exist in the other twelve former colonies. Moreover, North Carolina was unique in witnessing a violent confrontation between the colonial authorities and backcountry farmers that stemmed in part from those grievances. The peculiar case of the Earl Granville and assorted problems in his Granville District shifted the problem of perpetuities from the periphery to the center of North Carolina politics in the late eighteenth century, and made perpetuities warrant an explicit mention in the 1776 North Carolina Constitution and Declaration of Rights.

Property Profs may also be interested in Rob Sitkoff and Steven Horowitz's work on Unconstitutional Perpetual Trusts.

Save the Date: ALPS 2015

ALPS Conference 2015

The Association for Law, Property and Society (ALPS) will hold its sixth annual meeting at the University of Georgia School of Law on May 1-2, 2015.  Details, including a call for papers and plenary speakers, will be announced later this summer.  Save the dates on your calendar.

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.  [242 downloads]  Stealing Fannie and Freddie
      Jonathan R. Macey (Yale) & Logan Beirne (Yale)

2.  [102 downloads]  The Elements of Possession
      Henry E. Smith (Harvard)

3.  [102 downloads]  No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem
      Jessica A. Shoemaker (Nebraska)

4.  [86 downloads]  Properties of Information & the Legal Implications of Same
      Tim Wu (Columbia)

5.  [82 downloads]  Reinventing the Islamic Law of Inheritance: The Share of Orphaned Grandchild in Islam and Pakistani Legal System
      Muhammad Munir (International Islamic University)

6.  [81 downloads]  The Law Is Nine-Tenths of Possession: An Adage Turned on Its Head
      Carol M. Rose (Arizona)

7.  [77 downloads]  A Case for Simpler Gain Bifurcation for Real Estate Developers
      Bradley T. Borden (Brooklyn), Nathan Brown (Independent), & John Wagner (Independent)

8.  [72 downloads]  Agritourism at the Rural-Urban Interface: A National Overview of Legal Issues with 20 Proposals for Idaho
      Stephen R. Miller (Idaho)

9.  [71 downloads]  Confidential Information as Property?
      Tanya Aplin (King’s College London)

10.  [70 downloads]  The Stripping of the Trust: A Study in Legal Evolution
       Adam S. Hofri-Winogradow (Hebrew University)

Is Arkansas the Worst Place to Rent an Apartment in America?

 So says Vice News: 

Arkansas is one of the worst places to be a renter in America. It is the only state in the US where tenants are treated as criminals for paying rent late and landlords are not required by law to maintain their properties. Its failure-to-vacate law lets landlords give tenants a 10-day eviction notice if they are even one day overdue. Tenants who can't or won't leave within that span face fines for every day they remain on the property and up to 90 days in jail. This makes things difficult for the third of Arkansas's residents who are renters and have legitimate concerns about the properties they are occupying.

The combination of failure-to-vacate and the lack of warranty of habitability make it almost impossible for tenants to challenge their landlords for legitimate reasons. It's estimated that criminal evictions occur everyday in Arkansas, resulting in over 2000 failure-to-vacate cases being filed each year.

 

Di Robilant on the Bundle of Sticks

Anna di Robilant (Boston U.) has posted Property: A Bundle of Sticks or a Tree? (Vanderbilt Law Review) on SSRN.  Here's the abstract:

In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical liberal theorists of property, and the bundle of rights model, invented in the United States by Hohfeld and the Realists. This article retrieves an alternative concept of property, the tree concept of property. The tree concept of property was developed by European property scholars between 1900 and the 1950s, as part of Europe’s own “realist” moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use of a resource, and the branches representing the many resource-specific property regimes present in modern legal systems (family property, agricultural property, affordable housing property, intellectual property etc.). This article argues that the tree concept of property provides a descriptively more accurate and normatively richer account of property than the two currently dominant models.