PropertyProf Blog

Guest Bloggers Wanted

As the summer turns to fall, we're looking for a few guest bloggers to join us.  If you're interested, please drop me an email.  Guest stints generally last about a month, and we hope you'll post at around twice a week.  If you've ever wondered if you'd like to blog, this is a low-pressure way to find out if you're made of the right kind of iron.  Benefits include the opportunity to promote your scholarship, a cool new line on your C.V., and the promise of copious free drinks on me at the law conference of your choice.

The Most Apologetic Building in All of London

This is what happens when you violate a covenant held by the Duke of Bedford.  Story here.

Martin on Federalism and the Fight Against Vacant Properties

Benton Martin (Independent) has posted Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties (Urban Lawyer) on SSRN.  Here's the abstract:

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to regulate vacant property through land banking and registration ordinances.

What Does the Disaster in Ferguson Reveal About Local Government?

Rick Hills asks some fascinating questions over at Prawfsblawg:

Although Ferguson's population is two-thirds black, its municipal leadership is overwhelmingly white. The (black) chief of the state highway patrol turns out to enjoy more popularity with Ferguson's own (white) municipal police chief. [...] Why, then, has not Ferguson's local voters taken control of their own municipal government, electing a mayor and council that creates a police force that the majority can trust? The question has relevance beyond Ferguson's particular situation: The whole point of jurisdictional fragmentation of counties among many small local governments is to give voice to groups that otherwise would be drowned out at the county and state level. If small local governments like Ferguson cannot represent the preferences of two-thirds of their residents, then what good are they?

To answers these questions, Hills looks to Fischel's Homevoter Hypothesis:

Anecdotal evidence from Ferguson suggests that the disproportionate representation of whites in Ferguson's city government might be the result of black voters' disproportionately being renters rather than owners.. Ferguson's disproportionately black renters are harder to mobilize for low-salience municipal elections. Both black and white politicians in Ferguson seem to agree that the transience of Ferguson's renting population contributes to their lack of political participation.

Harris & Au on Title Registration Systems

Douglas Harris (UBC) & May Au (UBC) have posted Title Registration and the Abolition of Notice in British Columbia (UBC Law Review) on SSRN.  Here's the abstract:

Systems of land law must balance competing goals of securing title for existing interests in land with facilitating their transfer. Title registration systems operate to facilitate transfers of interests in land. They reflect a choice to enhance the security of transfers of interests, providing what has been characterized as dynamic security at the expense of the static security of existing interests. One of the cardinal principles of title registration is the abolition of the doctrine of notice. In equity, if purchasers of a legal interest have notice of a prior equitable interest, then they take their interest subject to that prior interest. To do otherwise is to perpetrate a fraud. Most title registration systems abolish notice; prior unregistered interests do not affect purchasers who register their interests, whether or not they have notice of the prior interest, except, so many title registration statutes provide, in the case of fraud. This article investigates the evolution of provisions purporting to abolish notice in Torrens title jurisdictions, it describes the variety of provisions that emerged, it reviews the longstanding uncertainty in British Columbia over the extent to which the doctrine of notice is abolished, and it considers a number of proposals for reform. It concludes that the uncertainty is a function of an unresolved policy choice between static and dynamic security, and that the British Columbia Court of Appeal or the legislature needs to intervene to clarify that choice.

Housing in Gaza

The New York Times looks at the housing situation in Gaza:

After a month of fierce fighting between Israel and Palestinian militants that killed more than 1,900 Gaza residents, the extension of a temporary cease-fire through Monday was a great relief. But with an estimated 11,000 homes destroyed and many more severely damaged, Gaza’s housing and humanitarian crises are just beginning, and the uncertainty over the timing and terms for a more durable truce makes recovery planning elusive.

[...] [T]here are many challenges money cannot solve. [...]

Israel currently bans the import of construction materials for private projects, citing security concerns. In any case, several of Gaza’s cement-mixing plants and other factories that make doors, windows and floor tiles have been reduced to rubble.

Many aid workers think cash grants would provide the most efficient relief: People could fix homes that are still standing, rent new spaces or offset expenses as they cram in with relatives. But the United States will not give cash directly to people because it is too complicated to determine their possible connections with Hamas, which is deemed a terrorist organization by Washington.

“We’ll get lots of money to rebuild homes we can’t rebuild, but we won’t get the money to help these people help themselves,” said Robert Turner, director of Gaza operations for the United Nations Relief and Works Agency, which provides education, health and other services to the 70 percent of Gaza residents who are classified as refugees. “You cannot do widespread shelter construction unless construction material is free and available in the local market. Which it’s not, and is it ever going to be?”

Eagle on The Lost Takings Test

Josh Eagle (South Carolina) has posted The Lost Takings Test on SSRN.  Here's the abstract:

In recent decades, the Supreme Court has used oceanfront property as a principal vehicle for the development of Fifth Amendment takings law. Cases alleging that a state government has taken oceanfront land have produced landmark opinions such as Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal Council (1992), and Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010). In each of these cases, the Court has applied its standard, positivist takings analysis: first, identifying the rights of the landowner; then, weighing the extent to which the government’s action has limited those rights. This Article argues that the use of this approach in claims involving oceanfront land is inconsistent with both the legal relationship between the parties and a substantial body of common law precedent.

In the nineteenth century, courts – including the Supreme Court – recognized that public-private disputes along the waterfront were unique because the upland owner and the state were both landowners. Moreover, these landowners shared a common boundary and a common interest in services, such as navigability, provided by rivers and the sea. To resolve disputes between states and upland owners, courts developed what I call "the lost takings test." Unlike the positivist approach used by the Court in modern oceanfront cases, the lost test de-emphasizes established rights and puts a premium on the use of public and private land in furtherance of activities that provide value to both parties. Consistent with the common interests of the state and upland owners, and along the lines of private nuisance law, the lost takings test seeks to harmonize uses by focusing on unreasonable interference. After examining the history and rationale of the lost takings test, the Article explains how the test would have produced more fitting results in the Court’s recent oceanfront property decisions and why the Court should rediscover the lost takings test for use in future cases.

By providing the first detailed example of a property-specific takings test, the Article raises a host of interesting questions. For example, what are the implications of using unusual forms of property for the development of broadly applicable takings law? Could the post-positive approach embodied in the lost test be appropriate for use in other takings contexts? Are there other alternatives to the Court’s traditional focus on state limitation of positive rights?

Who Owns Your iTunes Library After You Die?

Slate looks at some cutting-edge issues:

The fate of your online life after death is a sensitive topic, and one both the law and technology companies have struggled with how to handle. Last week, Delaware Gov. Jack Markell took one step toward a possible solution, signing into law first-of-its-kind legislation that will grant Delawarean families the right to the digital assets of loved ones who are incapacitated or deceased, the way they would be given access to physical documents. But our Twitter, Facebook, or Gmail accounts are not our only online assets.

The Delaware law raises the complexities of how to deal with the accounts that house our e-book collections, music and video libraries, or even game purchases, and whether they can be transferred to friends and family after death. The bill broadly states that digital assets include not only emails and social media content, but also “data … audio, video, images, sounds … computer source codes, computer programs, software, software licenses.” However, the law says that these digital assets are controllable by the deceased’s trustees only to the extent allowed by the original service’s end user license agreement, or EULA.

If you’ve read your Kindle or iTunes EULA, you’d know just how little control over your e-books or music you have. Every time you hit “buy” at the Kindle store, you are not purchasing an e-book; you are licensing it for your personal use only.

Clowney on the Danger of Informal Property Rights

Steve Clowney (Arkansas) (That's me!) has posted Rule of Flesh and Bone: The Dark Side of Informal Property Rights (Illinois Law Review) on SSRN.  Here's the abstract:

Is the state really necessary? Social norms scholars have long argued that, in the absence of a strong central government, local communities can fashion orderly rules to distribute property entitlements and regulate their enforcement. At its core, this Article argues that while the legal scholarship has fully explored the benefits of social norms, academics have yet to flesh out the drawbacks of governance systems based on private ordering principles. Specifically, scholars have overlooked the presence and subsequent costs of violence that arise in the absence of centralized enforcement mechanisms.

My argument has two pieces. To start, I demonstrate that property scholarship has ignored the amount of actual violence that occurs in systems of private ordering. I then highlight some of the costs of this hidden violence, for both individuals and communities.

To make these points I reexamine the three canonical examples of “successful” private ordering regimes — the California Gold Rush, the Maine lobstermen, and the cattle ranchers of the American West. In each instance my research shows that violence is a more pervasive menace than the legal literature has indicated. And, ultimately, the presence of intimate physical violence not only imposes autonomy costs on the individuals ensconced in systems regulated by private ordering, it also calls into question the overall efficiency of social norms.

Where Americans Move

The New York Times has an excellent graphic showing how Americans have moved into and out of states over time. The one from Mississippi is particularly awesome. That giant "Moved to Illinois"? That appears to be black folks getting the hell out of Dodge and going to Chicago. (As an aside, "The Warmth of Other Suns" is a very very good book.).

Rule on Airspace in an Age of Drones

Troy Rule (Arizona State) has posted Airspace in the Age of Drones (Boston University Law Review) on SSRN.  Here's the abstract:

The growing interest in domestic drones is drawing new attention to unresolved questions regarding the scope of landowners' rights in the airspace above their land. Domestic drones are small, unmanned aircraft capable of delivering packages or capturing photos. Existing aerial trespass and takings laws, which were formulated prior to the advent of modern drone technologies, are ill-equipped to handle conflicts between domestic drone operators and landowners. To establish claims under these laws, landowners generally must prove that an aircraft flew within the nebulous "immediate reaches" of the airspace above their parcels and substantially interfered with their use and enjoyment of their land. The indefinite nature of landowner airspace rights under these rules is already generating confusion and controversy and hindering growth in the fledgling domestic drone industry. This Article applies basic principles of microeconomics and property theory to analyze the complex new property law issues presented by drone technologies. The Article ultimately advocates for legislation giving landowners strict rights to exclude aircraft from a clearly-defined column of low-altitude airspace directly above their parcels. Such legislation would clarify landowners' entitlements in low-altitude airspace and thereby promote more efficient governance of this increasingly valuable resource as drones become ever more common in domestic skies.

Ablavsky on the Indian Commerce Clause

Gregory Ablavsky (Penn - Ph.D. candidate) has posted Beyond the Indian Commerce Clause (Yale Law Journal) on SSRN.  Here's the abstract:

Since the 1970s, the Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for the exercise of federal power over Indian affairs. Modern opinions have interpreted the Clause’s terse authorization for Congress to “regulate Commerce...with the Indian Tribes” to grant the federal government exclusive power against the states to regulate relations with Indians, and plenary power to govern tribes, including their internal affairs. Scholars have shared the Court’s embrace of the Clause but disagreed with its conclusions, using the Clause’s history to question the scope of federal authority both against states and over tribes. In two recent concurrences, Justice Clarence Thomas echoed these claims by arguing that the Clause’s original understanding does not support federal exclusive or plenary power over Indian affairs, with radical implications for current doctrine.

This Article uses previously unexamined historical sources to question the fundamental basis for this debate and highlight the inadequacy of the Indian Commerce Clause as the principal constitutional foundation for the federal Indian affairs power. Indeterminate when written, the Clause was a minor component of constitutional thought until the nineteenth century, when proponents of Indian removal concocted a narrow textualist focus on the Clause to argue for narrow federal authority over Indian affairs.

Moving beyond the Indian Commerce Clause, this Article posits new constitutional sources for federal authority by drawing on the constitutional thought of the Constitution’s drafters and early interpreters, particularly the Washington Administration. To claim federal power over Indian affairs against the states, the Administration embraced a holistic reading of the Constitution akin to present-day field preemption. With respect to authority over Indians, the Administration, through constitutional interpretations of the law of nations, asserted ultimate U.S. sovereignty, displacing Indian tribes as fully independent sovereigns. Beyond these limitations, however, the Administration acknowledged Native autonomy. Yet, despite their supposedly modest scope, the legal principles advanced in this period formed the basis for the later elaboration of plenary power over Indian tribes.

The history revealed in this Article suggests a partial revisiting of current doctrine. On the one hand, it provides a more solid foundation for principles that Justice Thomas and others have derided as “schizophrenic” or incoherent. On the other hand, it suggests more limited federal authority over Indians and greater respect for tribal sovereignty. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of original understandings of the Constitution.

There Goes The Gayborhood?

Matt Yglesias looks at the rise and fall of America's gay neighborhoods: 

Ghaziani's research tells us that between the 2000 and 2010 Census, the number of same-sex couples living in key traditional gayborhoods declined, often as larger trends in urban life made those neighborhoods newly desirable destinations.

At the same time, the Census now finds same-sex romantic couples living together in 93 percent of America's counties. The gay population is becoming less concentrated as its legal, political, and social reality is increasingly accepted.

That acceptance itself is clearly a good thing. But the decline of the gayborhood may be a negative consequence of declining homophobia. Ghaziani notes that the American political system heavily rewards geographically concentrated voting blocks. Gays and lesbians are a relatively small minority in the United States, but when they cluster in hubs, the politicians who represent those hubs become key champions of their issues.

Zale on a City's Right to Destroy

Kellen Zale (Houston) has posted Urban Resiliency and Destruction (Idaho Law Review) on SSRN.  Here's the abstract:

In this article, I evaluate a city's right to destroy property that it owns and how that right can have both positive and negative impacts on resiliency. The article starts from the proposition that property destruction is as necessary to urban resiliency as creation: destruction allows cities to eliminate outdated and vacant buildings; create the necessary physical space for redevelopment; and redirect economic resources to best meet the needs of residents. However, the article contends that the power to destroy poses risks to the city’s resiliency because of the very characteristics that make it appealing in other contexts: it is permanent, cheap, and simple. As a result, cities may engage in a tendency to overuse the power to destroy in situations where it is not the most resilient choice. 

The article suggests that the difficulty is predicting a priori when exercising the right to destroy will make a city more resilient and when it will not. Although the standards employed in a particular context may implicate considerations related to resiliency, a city’s decision to destroy property is often made on an ad hoc basis, without any explicit consideration of the impact on the city’s resiliency. Therefore, the article argues that before exercising the right to destroy as a property owner, a city should conduct a demolition review procedure, modeled on existing legal procedures such as environmental protection laws and demolition delay regulations.

Arkansas-Fayetteville Seeks Associate Dean

Tell all your cool friends who are looking to leave law practice about this great opportunity:

The UNIVERSITY OF ARKANSAS SCHOOL OF LAW, Fayetteville, invites applications for the position of Associate Dean for Administration.

 The Associate Dean for Administration is responsible for overseeing many aspects of the administration and management of the School of Law. The successful candidate will be responsible for faculty support, various student affairs functions including student organizations, and general administrative operations including the preparation and submission of numerous reports for internal and external audiences. Reporting directly to the Dean, the Associate Dean will be expected to assist in strategic planning.

 The Associate Dean will encourage collaboration between administrative professionals and ensure compliance with all relevant procedures and regulations. The Associate Dean will directly supervise four administrative faculty support staff and work in partnership with other staff members that perform calendaring, communications, budget, personnel, IT, and building supervision functions. In addition, the Associate Dean will provide leadership for the school's Pro Bono Program and other evolving law school initiatives.  

 The minimum requirements include a J.D. degree and at least 5 years of post-JD experience in law school administration, higher education, and/or public or private sector management.

The formal job posting can be found here.

Maybe San Francisco Isn't the Worst?

Over at Landuse Prof, Stephen Miller pushes back against the notion that San Francisco's land use rules the are the culprit for skyrocketing rents in the Bay Area.  The whole post is absolutely worth reading, but here's Stephen's key point:

San Francisco is a tiny part of the Bay Area. The city is just 1 million people in an area of over 7 million people. The biggest problem, though, is that outside of San Francisco, and a very few other locations, the rest of the Bay Area housing stock is bleh. I mean really bleh, as in more bleh than the strip-mall Ohio town where I grew up. Most Bay Area suburbs are really, really boring.  (Sorry, Antioch.)

That is why there has been a concerted effort to build a plan to create nice neighborhood development throughout the region that would emulate the kinds of urban experiences available in San Francisco. Required by SB375, that plan was called One Bay Area, and it was sued by the Sierra Club, another environmental justice group, developers, and an “anti-sustainability” group. If you want to solve the problem of San Francisco rents, you will never be able to solve it by tearing down San Francisco and building it back up again as high rises. Instead, you will need to build more San Francisco-style development in the adjacent suburban communities. The problem is, absolutely everyone—environmentalists, property rights advocates, real estate developers—hate that idea but for different reasons. That, my friends, is why San Francisco, an iconic city in the midst of boring suburbs, is stuck with the problem it has.

 

Hsu on Thomas Piketty

Shi-Ling Hsu (Florida State) has posted The Rise and Rise of the One Percent: Getting to Thomas Piketty's Wealth Dystopia on SSRN.  Here's the abstract:

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which means that relatively speaking, the non-wealthy will fall behind.

But even if we accept Piketty's assertion that this has been an "historical fact," why is r > g most of the time? Piketty offers a few economic factors and a few legal rules, but mostly demurs as to why the "forces of [wealth] divergence" generally overwhelm the "forces of [wealth] convergence." This review argues that legal rules and institutions exhibit an inherent bias towards some forms of private capital, and serve to inflate returns to private capital – Piketty's r. Meanwhile, not only is it more difficult to make economic growth – Piketty's g – keep pace, but it is more contentious. The result is that returns to private capital have indeed commonly exceeded the rate of economic growth. This review argues that this historical truism can be traceable to a capital-friendly bias that inheres in legal rules and institutions. This review identifyies several areas of law in which this bias is particularly pronounced, and serves to inflate returns to private capital, driving it above the rate of economic growth, and exacerbating economic inequality. This review closes by arguing for a greater attention paid to funding education, which is not only an equalizing "force of convergence," but also a predicate to economic growth.

Treasure in the Walls

It's rare to come across contemporary examples of hidden treasure:

Police in Florida have seized 60 pounds of silver coins that had been stashed for decades inside the walls of a recently demolished home.

According to officials in St. Cloud, Fla., glass pickle jars holding more than 2,000 coins shattered while city workers were leveling a 1915 bungalow, turning the demolition into a momentary slot machine.

"It was like a treasure hunt — the more you dug the more you found," one of those workers, Melissa Howes, told the Orlando Sentinel. "We thought we might be able to keep it like finders keepers, but it was city property."

The most recent owner of the 776-square-foot house, Lamarr LoMax Lowe, a former Walt Disney World employee, abandoned it after racking up $511,500 in code-enforcement liens, the paper reported.

The seizure included 861 half-dollars, 1,016 quarters, 202 dimes and three nickels, police records show. Some of the oldest coins were dated 1917, officials said.

"We're going to have them appraised to see if they're worth more by weight or as collectible coins," St. Cloud Police Chief Pete Gauntlett told reporters last week.

Gauntlett believes the coins may have been hidden inside the walls by a former owner during the Great Depression.

(HT: Chris Odinet)

Dorfman & Jacob on Trespass

Avihay Dorfman (Tel Aviv) & Assaf Jacob (Radziner) have posted Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility (Toronto Law Journal) on SSRN.  Here's the abstract:

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

A Loss for the Confederacy, A Win for Mississippi

From time to time, this blog has covered how white Southerners have used Confederate symbols to claim public spaces as their own.  It's no secret that I believe, rather strongly, that the Confederate battle flag has no business flying over any statehouse (I'm looking at you, South Carolina) and that statutes of Confederate leaders should be removed from public squares (Yes, Richmond, that means you).  In what I see as a major development on this front, The University of Mississippi, one of bastions of "The Old South" and often referred to as "Ole Miss," has started to recognize the damage that these images and symbols continue to cause:

To most University of Mississippi students and alumni, calling the institution “Ole Miss” is just natural. It’s what people say. University email addresses are @olemiss.edu, not @umiss.edu. But not everyone likes the name.

The university’s announcement on Friday that, as part of a review of race relations at the university, it would encourage “appropriate” use of the term won praise from some quarters but plenty of criticism. So did a series of other announcements by the university, which is hoping to change its association with symbols of the Confederacy. Reports commissioned by the university (which influenced Friday’s announcement) angered some students and alumni—particularly those with ties to the Greek system—by discussing the perceptions of some black students and alumni who are far more critical of university traditions and life at the university than are white students and alumni.

[...]  The current review is broader than many of the previous efforts, which focused on specific practices such as flying confederate flags. The university is now discussing diversity broadly, and history and symbols and names that have created strong emotional connections for many students and alumni. The Ole Miss name is a particularly contentious issue.

[...] Of the Ole Miss name, they note that some but not all who use the name are aware of its antebellum past (a name slaves would use for the woman married to the plantation owner). And while the report agrees that many students and alumni love the name, it adds that they see the nickname as a symbol that holds the university back.

The University also looks set to change the name of “Confederate Drive” to “Chapel Lane” and change the names of some facilities to draw attention to the stories of black Mississippians.

(Image: A football game at "Ole Miss" before the University banned flags)