PropertyProf Blog

Conference Announcement: The City as a Commons

The City as a Commons: Reconceiving Urban Space, Common Goods and City Governance

Bologna, Italy November 6-7 (2015)

Website: http://www.labgov.it/wordpress/urbancommons/

Co-Chairs:  Shelia Foster (Fordham) &  Christian Iaione  (Marconi - Italy)

Inspired by the recently implemented Bologna Regulation on Collaboration for the Care and Regeneration of the Urban Commons, as well as by other commons-based experiments in cities around Italy by the LabGov project (e.g. Co-Mantova, Co-Battipaglia and Co-Palermo), the 1st IASC Thematic Conference on the Urban Commons will bring together leading scholars, researchers, policymakers, practitioners and social innovators to take stock of the developments in the interdisciplinary study of the urban commons and related questions of urban governance. Although the urban commons has increasingly appeared as a topic of scholarly inquiry, there has yet to be sustained attention to the research questions, methodologies, and disciplinary approaches necessary to more fully conceptualize and develop the idea of the “urban commons” and the new challenges and facets it introduces into the ongoing study of the commons in diverse fields. The conference will seek to better understand the idea of urban commons at different scales, under what circumstances and contexts urban commons emerge, what contributes to their durability and effectiveness, and what undermines them. The conference will stress the importance of an “urban commons narrative” for urban infrastructure, urban welfare, and urban development. Additionally, the conference will focus on questions of urban governance and will explore different frameworks for governing common urban resources, and the city, in a collaborative manner. The conference will highlight six thematic questions, which are: Conceiving the Urban Commons, Mapping the Urban Commons, The Urban Commons and Democratic Innovation, The Collaborative/Sharing Economy as the Basis for a Commons-Based Urban Economy, Social innovation as the Basis for a Commons-Based Urban Welfare, and Designing and Governing the City as a Commons.

The international call for papers will open on June 20th, 2015. Abstracts may be submitted to [email protected]. The deadline for submission is August 10th, 2015 at 12:00 AM CET.

For more information, see here.

Privatization of Texas Beaches?

 Houston Matter discusses the Texas Open Beaches Act (with Property Prof. Matt Festa).  A summary of a recent dispute:

The Houston Chronicle recently reported on a conflict between a Galveston resident and the city’s Park Board over who rightfully owns a section of Galveston beach in front of the seawall. Resident Frank Maceo says that portion of the beach belongs to him. City officials say Maceo’s claim could endanger plans to re-sand some of the eroding beaches. It’s not the first time property owners have staked claims to portions of a beach in Galveston. A similar case went before the Texas Supreme Court, and in 2012 the court ruled in favor of the property owner.

At the center of the debate is the Open Beaches Act, which was added to the state constitution in 2009 and guarantees the public the right to free and unrestricted access to Texas beaches along the state’s coastline.

Miller on Funding Conservation on Private Land

Stephen Miller (Idaho) has posted Funding Conservation in Idaho: A Survey of Federal, State & Local Resources Assisting Conservation on Private Lands on SSRN.  Here's the abstract:

The purpose of this publication is to provide a guide to the most common funding resources available for conservation on private land in Idaho. Conservation funding sources discussed include: North American Wetlands Conservation Act; Pacific Coastal Salmon Recovery Fund; Partners for Fish and Wildlife Fund; Recovery Land Acquisition Grants; Land and Water Conservation Fund; National Fish Passage Program; Cooperative Endangered Species Conservation; Environmental Quality Incentives Program; Forest Legacy Program; the Agricultural Conservation Easement Program – Agricultural Land Easements; Agricultural Conservation Easement Program – Wetland Reserve Easements; Bonneville Power Administration – Wildlife Mitigation; Conservation Stewardship Program; Clean Water Act § 319 Funds; Boise City Foothills Levy; and Blaine County Land, Water and Wildlife Program.

Map of the Day: Gay Marriage in the U.S.

Disparate-Impact Claims Survive Challenge

Here's some round-up on Texas Department of Housing v. Inclusive Communities Project.  In case you missed it, the court confirmed that claims under the Fair Housing Act prohibits can be based on a “disparate impact” (i.e., a discriminatory effect) even if the underlying law or policy wasn’t motivated by an intent to discriminate.

ScotusBlog: A civil rights law made broader, but not too broad

Slate: The Supreme Court takes a stand against housing discrimination

Washington Post: Supreme Court upholds key tool for fighting housing bias

Insurance Journal: Insurers Disappointed as Supreme Court Backs Disparate Impact Claims

Daily Caller: SCOTUS Okays Lawsuits For Accidental Housing Discrimination

A civil rights law made broader, but not too broad

 

housing discrimination “because of” race, can be based on an allegation that a law or practice has a “disparate impact” – that is, it has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate. - See more at: http://www.scotusblog.com/2015/06/disparate-impact-claims-survive-challenge-in-plain-english/#sthash.0Vc7JAzq.dpuf

housing discrimination “because of” race, can be based on an allegation that a law or practice has a “disparate impact” – that is, it has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate. - See more at: http://www.scotusblog.com/2015/06/disparate-impact-claims-survive-challenge-in-plain-english/#sthash.0Vc7JAzq.dpuf

housing discrimination “because of” race, can be based on an allegation that a law or practice has a “disparate impact” – that is, it has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate. - See more at: http://www.scotusblog.com/2015/06/disparate-impact-claims-survive-challenge-in-plain-english/#sthash.0Vc7JAzq.dpuf

Versteeg on the Politics of Takings Clauses

Mila Versteeg (UVa) has posted The Politics of Takings Clauses (Northwestern Law Review) on SSRN.  Here's the abstract:

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Constitutions can potentially play an important role in protecting private property from arbitrary or excessive expropriation by offering a range of mechanisms that make it more difficult for governments to renege on the constitutions’ promises. Despite their potential importance, remarkably little is known about how constitutions actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain and de facto expropriation risks.

This Essay explores two possible explanations for why constitutional restrictions on the power of eminent domain fail to make a difference in practice. The first is that countries adopt disingenuous promises to bolster their international reputation or to attract foreign aid. The second explanation holds that, although takings clauses have the potential to make society as a whole better off, under some circumstances the benefits of secure property rights fall disproportionally upon economic elites, and a majority of citizens benefit more from expropriation than from increased economic growth. As a result of this dynamic, disagreements over the desired level of expropriation might be built into the constitution’s design.

This Essay finds empirical support for the second explanation. Specifically, it finds that real-world constitutional property regimes are often riddled with ambiguities. That is, constitutions often include strong procedural and substantive restrictions on the power of eminent domain but also include “fine print” that can undermine those restrictions, such as provisions that offer a narrow definition of private property, policies that contemplate land reform, provisions that restrict the property rights of foreigners, and clauses that make private property subordinate to the common good. What is more, this Essay finds that when accounting for such fine print, constitutional restrictions on the power of eminent domain do appear to be correlated with reduced expropriation risks. This finding suggests that the effectiveness of takings clauses might depend to a large extent on the politics surrounding their adoption.

Is Section 8 Housing Bad for the Poor?

Alana Semuels ponders some of the problems facing Section 8 housing:

The failings of Section 8 go far beyond flaws in how the program was designed to how the the states have implemented it. People can argue all they want about the merits of subsidized housing, but given that Section 8 exists, it would seem advantageous for states and municipalities to take advantage of federal funds to help families find better housing. But many states seem especially determined to keep voucher-holders in areas of concentrated poverty.

“The whole idea of Section 8 in the beginning was that it was going to allow people to get out of the ghetto,” said Mike Daniel, a lawyer for the Inclusive Communities Project, told me. (Daniel has sued HUD over the way it is carrying out the program in Dallas.) “But there’s tremendous political pressure on housing authorities and HUD to not let it become an instrument of desegregation.”

For example, in much of the country, landlords can refuse to take Section 8 vouchers, even if the voucher covers the rent. And, unlike the landlords in poor neighborhoods in Eva Rosen’s study, many landlords of buildings in nicer neighborhoods will do anything to keep voucher-holders out. The result is that Section 8 traps families in the poorest neighborhoods.

Gold on the Interaction of Legal and Social Norms

Richard Gold (McGill) has posted Pluralist Property: The Interaction of Legal and Social Norms on SSRN.  Here's the abstract:

Justice Holmes long ago recognized the conventional nature of property. What he did not explain is how convention and law interact to create the substantive content of property rights: who can do what in respect of a good and when. Contemporary legal theory focuses on the form of property rights – whether they are necessarily rights to exclude or whatever the state says they are – rather than on their substantive contents. In doing so, however, theory fails to address two fundamental features of property. First, property law adapts to new forms of goods, tangible and intangible, over which the state likely had no conception at the time the rule was made. Second, when states create new forms of property, they generally do not actually legislate what one can do with that property, although in practice there are limits. For example, the EU did not define the substantive content of the euro when that currency was introduced despite the complete absence of background law relating to money. Drawing on a combination of property and social norms theory backed up by empirical studies, this article provides a pluralist account of property and explores its consequences for law.

Property Owners Win Raisin Takings Case

Ilya Somin does the knowledge on Horne v. Department of Agriculture:

Horne involves a challenge to the forcible appropriation of large quantities of raisins by the federal government. The forced transfer is part of a 1937 program that requires raisin producers, in some years, to turn over a large portion of their raisin crop to the government so as to artificially reduce the amount of raisins on the market, and thereby increase the price. Essentially, the scheme is a government-enforced cartel under which producers restrict output for the market so as to inflate prices. The Hornes claim that the appropriation of their raisins amounts to a taking that requires “just compensation” under the Fifth Amendment.

The Court ruled in favor of the property owners by an 8-1 margin on the most significant issue at stake: whether the government’s appropriation of the raisins is a taking. Only Justice Sonia Sotomayor dissented.

This is an extremely important result, because it rejects the government’s dangerous argument that the Takings Clause offers less protection for personal property than for real property (the legal term for property in land), which had been embraced by the Ninth Circuit lower court decision. For reasons elaborated in detail in an amicus brief I joined along with other constitutional law and property scholars, the government’s position on this issue was deeply at odds with the history and original meaning of the Takings Clause. Indeed, as the Court notes, the Clause was adopted in part as a reaction to abusive British confiscation of personal property during the colonial era and the Revolutionary War.

Supreme Court Decides Sign Case

Last week the Supreme Court issued an opinion in Reed v. Town of Gilbert, its most recent sign case.  As expected, the Court ruled against the town's sign regulation ordinance.

Here's SCOTUSblog's coverage.

 Bloomberg Law interviewed law professors Mark Graber of the University of Maryland and Stephen Miller of Idaho about the case.  The interview is available here.

Kochan on Categories of Land Use Control

Donald Kochan (Chapman) has posted A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective (Michigan Journal of Environmental & Administrative Law) on SSRN.  Here's the abstract:

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.

Lonegrass on Landlord Retaliation

Melissa Lonegrass (LSU) has posted Eliminating Landlord Retaliation from England and Wales -- Lessons from the United States (Louisiana Law Review) on SSRN.  Here's the abstract:

Retaliatory eviction has been the subject of much recent public debate in the United Kingdom. Tenant advocates in England and Wales claim that landlord retaliation is widespread — even rampant — with over 300,000 tenants experiencing some form of landlord retaliation each year. In their efforts to keep anti-retaliation initiatives in the United Kingdom afloat, tenant advocates point to common law jurisdictions around the world whose landlord-tenant law prohibits retaliatory conduct. New South Wales, Australia, New Zealand, and even the United States provide for these protections — why then should not the United Kingdom? Thus far, comparisons to foreign law have been limited and cursory, pointing only to the presence or absence of anti-retaliation regimes in the law. More comprehensive examination of retaliatory eviction regimes abroad — both in their letter and their application — is lacking. This Article seeks to contribute to the legal–political debate surrounding landlord retaliation in England and Wales by providing a detailed, contextual analysis of retaliatory eviction laws in the United States and their success at home.

60 Million People Displaced From Their Homes in 2014

From Slate:

A staggering 59.5 million people were forcibly displaced around the world in 2014, according to the latest report from the U.N. High Commissioner for Refugees, setting a record. That’s 8.3 million more than last year, for the largest one-year jump since the UNHCR began recording. This means that one out of every 122 people in the world is displaced. If that population were a country, would be the 24^th-largest in the world. That number includes refugees, internally displaced people, and those seeking asylum.

The staggering numbers are caused by conflicts in a relatively small number of countries. Just three countries—Syria, Afghanistan, and Somalia—account for 53 percent of those displaced. The top 10—also including Sudan, South Sudan, the Democratic Republic of Congo, Myanmar, the Central African Republic, Iraq, and Eritrea—account for 77 percent.

Borden on the Taxation of REITs

Bradley Borden (Brooklyn) has posted Reforming REIT Taxation (Or Not) (Houston Law Review) on SSRN.  Here's the abstract:

Tax law treats the income of real estate investment trusts (REITs) differently from the income of regular corporations. Income distributed by regular corporations is subject to an entity-level tax and a shareholder-level tax, while taxable income distributed by REITs is subject to tax only at the shareholder level. To qualify for that single-level of tax, REITs must hold primarily real estate assets, and their income must be primarily from such assets. After being a relatively insignificant part of the economy for the first three decades of their existence, REITs have become relevant over the last twenty years, with the market capitalization of publicly traded REITs eclipsing 5% of U.S. GDP at the end of 2014. Reports about REITs appear frequently in major media outlets, with an emphasis on corporate-tax-base erosion that results from REIT taxation. Calls for REIT reform have been answered with proposed legislation that would change various aspects of REIT taxation. Recent work in this area shows that even though REITs do erode the corporate tax base, the requirement that they distribute income and the higher tax rates of REIT shareholders offset corporate-tax-base erosion and minimize the tax-revenue effects of REIT taxation. This Article examines the history of REIT taxation and identifies Congress’s purposes for enacting REIT legislation and amending it over the years. The Article examines the criticisms of REIT taxation and analyzes REIT taxation based upon how well it accomplishes Congress’s purposes and satisfies traditional tax-policy objectives. Based up on that analysis, the Article finds that REIT taxation is benign, and it benefits the economy by helping to stabilize real estate markets. The Article then compares the REIT regime with various reform alternatives. Not surprisingly, after finding that REIT taxation is benign and beneficent, the Article concludes that maintaining the status quo is more attractive than any of the reform alternatives.

The Ghetto was a Policy Choice

NPR's Terry Gross interviews historian Richard Rothstein about the origin of the American Ghetto:

Texas Trying to Crack Down on "Adverse Possession Abuse"

From the Dallas Morning News:

The Texas Senate unanimously passed a bill, HB 2590, Tuesday afternoon aimed at cracking down on scammers who abuse the state’s adverse possession laws to acquire seemingly abandoned houses and sell them to unsuspecting buyers. A pro-forma House vote on a technical amendment is all that’s left before the bill heads to Gov. Greg Abbott for signing into law.

The bill, introduced in the House by Democratic Rep. Eric Johnson of Dallas and carried in the Senate by Sen. Royce West, would add significant financial penalties for anyone deemed to use fraudulent practices to assert deed claims on other people’s houses without their knowledge or consent, or who try to sell those houses to buyers who are unaware that the seller has no legal right to sell the property. Most people understand adverse possession as “squatter’s rights.”

Alexander on the Scottish Right to Roam

Gregory Alexander (Cornell) has posted The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam (Illinois Law Review) on SSRN. Here's the abstract:

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Map of the Day: Where Do Legal Immigrants Come From?

Mostly, Mexico.  In 2012, for example, nearly 150,000 achieved legal status in the United States.  As a result, Mexicans make up the largest groups of legal immigrants in 27 states.  To make things more interesting, here's a map of the most common country of origin of legal immigrants (excluding Mexico):

Singer on Public Accommodations Law

Joseph Singer (Harvard) has posted We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom (Boston University Law Review) on SSRN.  Here's the abstract:

As part of a symposium celebrating the 50th anniversary of the Civil Rights Act of 1964, this article considers the role of public accommodations law in a free and democratic society. Public accommodations law is fundamental to a society that ensures equal rights of access to both private property and the free market. A society that allows businesses to choose their customers because of race or other factors such as sexual orientation can result in a caste system that is as rigid as any such systems imposed by statutory regulations. That is why a statute that allows businesses to choose customers without limit (such as the law in effect to this day in Mississippi) should be deemed unconstitutional if it enables businesses to engage in invidious discrimination.

Racial discrimination remains a significant problem in public accommodations today even though it is (almost) universally deplored. We are, however, living through a time when discrimination on the basis of sexual orientation is being vigorously debated and religious reasons for such discrimination are commonplace. Sorting out the rights of patrons versus the rights of businesses requires a full understanding of the role of public accommodation law in ensuring that access to social and economic life not be denied on the basis of race or sexual orientation.

Saxer on Bargaining for Development Post-Koontz

Shelley Saxer (Pepperdine) has posted To Bargain or Not to Bargain? A Response to Bargaining for Development Post-Koontz (Florida Law Review Forum) on SSRN.  Here's the abstract:

In this essay, Dean Saxer responds to Sean F. Nolon’s Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government. The Supreme Court held, in Koontz v. St. Johns River Water Management District, that proposed local government monetary exactions from property owners to permit land development are subject to the same heightened scrutiny test as imposed physical exactions. In his article, Nolon explores whether such heightened scrutiny for proposed exactions will chill permit negotiations between local governments and developers. Nolon predicts that the Koontz decision will “impede developers’ ability to improve their projects in the development review process.” Saxer responds that the consequences of this decision are not as dire as predicted by Nolon and that developers and local officials will continue to work together for the benefit of both the developer and the community.