Friday, July 31, 2015
An Ohio couple is fighting with their local government over whether they can keep their lawn unmowed. They appear to have a pretty good case:
The township doesn’t actually have a specific ordinance that the Ohio couple are violating, reports say. The township’s zoning inspector says that he can have a landscaping company come onto the couple’s yard and mow it at the couple’s expense under a very broad and nonspecific nuisance ordinance. The township trustees claim that the couple’s yard is a risk to the community’s health, welfare and safety. According to The Columbus Dispatch, neighbors have never even complained.
“We’re a land of laws,” Trustee Randal Almendinger told the couple. “We have to adhere to them, too. We have to do what we’re told to do.”
Almendinger says that the law is to eradicate whatever the township trustees decide is a nuisance, and since the laws don’t define what constitutes a nuisance, The Columbia Dispatch reported, “The trustees said their only recourse is to rely on the wisdom of their longtime zoning inspector, Tom Frederick.”
Slate has a handy calculator to help you figure it out. Some background on their definition of gentrification:
Most experts consider a neighborhood to be gentrifiable if its incomes are in the bottom half or quarter of the income distribution of a metropolitan area, she explained in an email to Slate. If the incomes of such a neighborhood are rising faster than incomes citywide, the area is undergoing gentrification. Some researchers have traced changes in educational or racial demographics as proxies for gentrification. For the purposes of this calculator, Ellen suggested this formula: If your neighborhood’s median income is lower than the median income of your city, and your income is higher than your city’s median, you’re a gentrifier.
Rigel Oliveri (Missouri) has posted Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis (Missouri Law Review) on SSRN. Here's the abstract:
The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination.
St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis.
This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.
Wednesday, July 29, 2015
From the Atlantic Cities Blog:
Today, the Vatican welcomes more than 60 mayors from around the world. The eclectic agenda covers mayoral efforts to combat climate change as well as modern forms of slavery. Many of the mayors will stay the next day for a second conversation about how cities fit into the world’s new Sustainable Development Goals meant to guide development work around the globe for the next 15 years.
The mayors will see a Vatican that—even before Francis—has been quietly putting together a record of urban innovation. The initiatives are happening partially within the walls of the tiny city-state itself. But they’re also happening across the broader metropolitan area of Rome, where the Pope heads the local diocese of the Catholic Church, and where the Vatican holds a unique spiritual, political, and economic influence over local affairs.
Avi Bell (San Diego) & Gideon Parchomovsky (Penn) have posted Of Property and Information (Columbia Law Review) on SSRN. Here's the abstract:
The property-information interface is perhaps the most crucial and under-theorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, dearth of information can significantly reduce the benefit associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage in sustained analysis of the property-information interface and in particular of registries — the repositories of information about property.
Once, things were different. In the past, discussions of registries used to be a core topic in property classes and a focal point for property scholarship. In recent decades, registries have lost their luster for scholars, and their discussion has been relegated to the innermost pages of property textbooks. The reason for this is that registries are widely considered the domain of legal practitioners, not of theorists.
We argue that nothing could be further from the truth. Registries and the information they contain are, in fact, the formative forces that shape the world of property and no theoretical account of the institution of property can be complete without them. In this Essay, we offer the first in-depth legal-theoretical analysis of the intricate relationship among title information, rights and assets in the domain of property, as mediated by registries.
Our analysis gives rise to several new insights. First, we highlight the triple role that registries perform for property owners. They simultaneously perform a facilitative role by streamlining transactions between willing sellers and buyers, an obstructive rule by hindering non-consensual encroachments and takings of assets, and an enabling role by allowing owners to locate and use their own lost assets. Second, going against the accepted lore, we posit that perfect registries, even if they were possible, are socially undesirable on account on what we call “the information/asset paradox.” Perfect information about assets and legal rights may result in the destruction, dismembering and mutilation of the asset by non-consensual takers in an attempt to make the asset unrecognizable, as exemplified by millions of stolen cars and jewelry, or, conversely, to attempts to engage in “identity theft” in order to give thieves the benefit of the registered rights. Third, we argue that the registries are socially desirable when it is impossible or difficult to alter the defining characteristic of the underlying asset. This insight explains why there are registries for non-transformable assets, such as land and unique artworks, but not for transformable assets that include mass production goods and many natural resources. Finally, we address the question of which rights should be covered by registries and how much legal deference should be given to them.
The framework we provide is significant not only theoretical reasons, but also for practical ones. For example, it can inform policymakers in deciding whether to establish new registries for smart-phones and personal computers in order to combat theft of such devices. Similarly, our analysis sounds a cautionary note about the ability of registries of copyrighted works to curb unlawful appropriation and distribution. Per our analysis, such assets are infinitely malleable and, worse yet, information concerning ownership in such works can be easily effaced or altered in the digital age. We also discuss how considerations of costs and privacy affect the comprehensiveness and integrity of registries. At the end of the day, our analysis exposes the promise and the limitations of registries, as well as the ways in which they can be improved by the state.
Monday, July 27, 2015
Michael Lewyn says no:
According to a New York Times article about the evils of foreign investment in New York housing, "About $8 billion is spent each year for New York City residences that cost more than $5 million each." Using the magic of long division, I calculate that even if each residence cost only $5 million and not a penny more, there would be 1600 such residences. In fact, some residences cost far more, so the actual number if super-expensive residences is lower (and of course, the number of such residences purchased by foreigners is lower still). In a city with 8 million people (and thus a few million households), a thousand or so really rich people seems to be like a drop in the bucket, even if their wealth does give them disproportionate influence and notoriety.
Moreover, it seems to me that if New York was really flooded with millions of foreign billionaires, housing prices would be even more expensive than they are. During my last year in New York (2013-14), I lived in a 448-square-foot studio in Midtown and paid $2330 a month in rent (The same apartment would cost $2680 today). This rent is very expensive by the standards of Planet Earth—but by the standards of Planet Foreign Billionaire Oligarch (FBO), it is nothing. What self-respecting FBO lives in a 450 square foot studio? And what self-respecting FBO pays less than $3000 in rent? I don't know how much FBOs make, but I'm guessing that the median FBO income was at least $10 million per year (1 percent interest of $1 billion in wealth)—which means that any self-respecting FBO should be able to afford $60,000 per month (the price of the most expensive New York apartment I found on zillow.com).
Jefferson-Jones on Using Historic Preservation Laws to Halt the Destruction of 'Porch Culture' in New Orleans
Jamila Jefferson-Jones (UMKC) has posted Using Historic Preservation Laws to Halt the Destruction of 'Porch Culture' in the Lower Ninth Ward of New Orleans on SSRN. Here's the abstract:
One Saturday in May, 2014, I visited the Lower Ninth Ward neighborhood of New Orleans with a group of my law students. The students had spent Monday through Friday volunteering with pro bono legal service providers throughout the City as part of the Law School’s annual mission trip and were going to spend that Saturday working on some rebuilding projects in the Lower Ninth Ward — an area that had been devastated by Hurricane Katrina in 2005 and was still struggling to rebound.
While shuttling students between job sites, I was shocked to see a number of newly built houses that looked as if they had been dropped from outer space into the middle of the “Lower Nine.” They had oddly angled roofs with solar panels, swooping overhangs, and, in some cases, the entryways were more than a story above ground. I later learned that these houses had been built by actor Brad Pitt’s organization, Make It Right. They seemed to me to be grotesque caricatures of the Greek revival, Italianate, Creole cottages, and shotgun houses that had previously occupied the landscape. My sentiments were echoed by those of experts who had also made post-Katrina pilgrimages to the Lower Ninth Ward to observe or participate in rebuilding efforts. One architect recounted his dismay: When I visited New Orleans last fall, there was no way to prepare myself for the despair I felt when walking through the Lower 9th Ward, even 6 years after the storm . . . . A vacuum of leadership at every level has left the task of “salvation” to celebrities, and their private celebrity architects — with projects that are an exercise of vanity over practicality. What was most dismaying was seeing “celebrity architecture” masquerading as sustainable housing . . . . Are we seriously expected to believe that a handful of LEED houses will somehow create a template for the future, even while the architecture itself destroys the porch culture that formerly characterized the close-knit social life of the neighborhood? Whose intentions are really more important? I would add to the speaker’s questions an additional one: once the more important intentions are identified, how might historic preservation law aid in effectuating those intentions?
In Part I of this Article, I argue that rebuilding approaches like Make It Right’s — approaches that admittedly seek to “change the way buildings are designed and built” — often fail to adhere to cultural and historical norms. This failure misses an opportunity to preserve the history of a community — one of the essential functions of historic preservation. In advocating for a larger role for historic preservation law in post-disaster rebuilding, I also explore the history of the Ninth Ward, the nature of pre-Katrina activism in this predominantly African-American community, and the role of place and space in that activism, as typified by the role of the front porch and the development of “porch culture.” I explore these issues by harkening back to the roots of African American homeownership in New Orleans — roots that extend to the legacy of real property ownership established by antebellum free women of color. In Part III of this Article, I examine the City of New Orleans’s current historic preservation mechanisms and posit that in instances of complete destruction or widespread devastation, existing historic preservation ordinances and processes must apply not just to pre-designated historic districts, but also to entire neighborhoods. I argue that such a regulatory scheme is necessary to maintain neighborhood integrity in the face of widespread destruction, such as that wrought by Hurricane Katrina in 2005.
Friday, July 24, 2015
The 10th International Conference of the International Academic Association on Planning, Law, and Property Rights (PLPR) will take place in Bern, Switzerland, on February 17-19, 2016.
PLPR is a free-standing academic association with over 400 individual members from all over the world. PLPR believes that Planning, Law and Property are interdependent. PLPR therefore conveys the message "Planning matters, Law matters, Property matters". These three simple statements inspire the growing PLPR community to examine the difficult relationship between public and private interests in the use of land.
CONFERENCE THEME: "Land as a scarce resource"
Spatial planning is often accused of not being up to the tasks it is supposed to deal with: more parsimonious use of natural resources; conservation of regional identities in the face of global standardization processes; promotion of integrated transport infrastructures; reduction of socioeconomic disparities among territories, etc.
During the last century, all Western countries have developed a complex administrative organization to shape their spatial development. Most countries have passed planning acts accompanied by the development of training programs for planners through national planning schools, and planning departments were created at all levels of government. In most national settings, spatial planning instruments were crafted in a context of land profusion. But are these systems able to meet the challenges of scarcity today?
Fighting against sprawl and uncontrolled growth in the name of sustainability calls for the end of green field development. Yet, suitable land for urban development is becoming more and more scarce. One of the central challenges of the new scarcity situation is that spatial planning needs to deal with the complex property-rights situations that characterize the already-built environment. Redevelopment, densification, mixed use development and urban land reconversion implies that public actors, developers, real estate specialists, neighborhood or tenant associations will have to deal with competing interests that are rooted in complex property right situations or regimes. For effective steering of spatial development, a deeper understanding of the tight interactions between spatial planning and property rights is required.
Even where economic growth is still given, the actors of spatial planning struggle with this new focus on the redevelopment of pre-used plots. Beside technical challenges such as contamination, neighbor conflicts, noisiness, etc., scarcity also questions our development patterns oriented toward growth, increased resource consumption per capita, and growing inequalities.
Abstract submission opens: September 1, 2015
Abstracts due: October 16, 2015 (DEADLINE WILL NOT BE EXTENDED)
Early registration begins: December 14, 2015
Conference: February 17-19, 2016
Please visit the PLPR Conference website for details: www.plpr2016.unibe.ch
1. Proposed papers should speak to topics at the intersection of planning, law, and/or property rights (i.e., not addressing just a planning issue, legal issue, or property rights issue in isolation of the other key themes of the association). A paper need not encompass all three dimensions, but should address at least two.
2. Proposed paper abstracts will be reviewed through a double-blind review process for coherence, connections to relevant literature(s), communication (including readable English), and appropriateness for the conference.
3. Participants interested in organizing a panel can get in touch with the organizers before the abstract submission window opens.
4. THE DEADLINE FOR ABSTRACT SUBMISSISSIONS WILL NOT BE EXTENDED.
Alejandro Camacho (Irvine) & Robert Glicksman (George Washington) have posted Legal Adaptive Capacity: How Program Goals and Processes Shape Federal Land Adaptation to Climate Change (Colorado Law Review) on SSRN. Here's the abstract:
The degree to which statutory goals are pliable is likely to affect significantly the ability of an agency with regulatory or management responsibilities to achieve those objectives in the face of novel challenges or changing circumstances. This Article explores this dynamic by comparing the degree of “give” provided by the goals of the regimes governing management of the five types of federal public lands in responding to the challenges posed by climate change. It asserts that the extent of climate change adaptation in which an agency engages is influenced by a program’s legal adaptive capacity — the mutability of the goals pursued under its authorizing legal framework.
Though a few scholars have explored the concept of adaptive capacity as it applies to law, most focus on the impact of procedural discretion on the ability to manage change. A comparative analysis of federal land adaptation to climate change demonstrates that a management regime’s legal adaptive capacity is influenced not only by procedural flexibility, but also by the flexibility the agency has in defining and pursuing a program’s substantive goals. Counterintuitively, for this reason, the land regimes most closely tied to resource preservation goals have generally lagged behind those with mixed conservation-commodity development mandates in preparing for climate change. Accordingly, the Article suggests ways to enhance the substantive legal adaptive capacity of land management agencies to promote ecological health in the face of climate change, and evaluates tradeoffs implicated when policymakers choose more appropriate levels of such adaptive capacity.
Peter Byrne (Georgetown) has posted Precipice Regulations and Perverse Incentives: Comparing Historic Preservation Designation and Endangered Species Listing (Georgetown International Environmental Law Review) on SSRN. Here's the abstract:
Part I describes each regulatory regime and specifies the ways the regimes create incentives to destroy the resources they aim to protect. Part I also reviews the literature identifying such perverse incentives and what is known about the incidence of actual destruction. Part II addresses actual and suggested changes to the procedures for designation or listing the resources, while Part III looks at substantive changes in the laws that may have the purpose or effect of moderating negative incentives. Finally, part IV concludes by considering the extent to which accommodation reforms further, or compromise, the values that historic preservation and biodiversity laws advance.
Tuesday, July 21, 2015
David Spence (Texas) has posted The Political Economy of Local Vetoes (Texas Law Review) on SSRN. Here's the abstract:
Political philosophers, welfare economists, and positive political theorists have long puzzled over a problem that the law is frequently called upon to resolve: namely, how to choose the “best” policy when a majority mildly prefers policy X, and a minority strongly prefers policy not X. This is a frequent subtext of preemption litigation, when disputes between federal and state governments reflect the fact that popular preferences are geographically heterogeneous, and the majority preference in a state is in the minority nationally. Federal preemption doctrine establishes a conceptually straightforward way of addressing this issue, but doctrinal rules governing state law preemption of local zoning decisions are murkier. In addition, when local zoning rules restrict development, those rules can also trigger regulatory takings claims, further complicating the resolution of these state-local disputes.
According to the environmental group Food and Water Watch, within the last few years more than 400 local governments, from California to Texas to New York, have enacted ordinances restricting or banning within their borders the use of hydraulic fracturing (fracking) to produce natural gas or oil from shale formations; indeed, there are more than 200 of these ordinances in New York State alone. These kinds of local vetoes of a state-regulated activity pose the potential for claims that the local ordinance is preempted by state oil and gas regulation, as well as regulatory takings claims by holders of mineral rights devalued by the local ban. In what seems likely to be only the tip of the litigation iceberg, state courts have recently begun to decide state-local preemption challenges to anti-fracking ordinances (rendering only a few opinions to date) and are facing the first few takings claims (none of which have yet been decided). These attempts by local governments to veto local development are essentially fights over the distribution of the costs and benefits of development. This Article explores the distribution of those costs and benefits, how distributional concerns drive the politics that cause these conflicts in the first place, and how the decision rules courts use to resolve preemption and takings claims try to address those distributional concerns to address those distributional concerns.
This analysis is self-consciously policy neutral. That is, it does not proceed by selecting a preferred policy for regulating fracking and then advocating a decision process most likely to produce that policy. Rather, because the risk profile of fracking is still being developed and because there is such disagreement about that profile, this analysis asks which level of government (state or local) is most likely to produce decisions that balance the costs and benefits of shale oil and gas production well. Thus, the focus is on the politics of welfare maximization (or of long-run utility maximization). This analysis will consider the many and varied effects of fracking in terms of costs and benefits: not to quantify them or to suggest that they ought to be quantified but rather as a way of exploring how the distribution of impacts disposes people toward or against shale oil and gas production.
Monday, July 20, 2015
Jessica Owley (Buffalo) has posted Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection (Land Use Policy) on SSRN. Here's the abstract:
Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to protect and how to protect them, some culturally important sites go unprotected. Privatizing protection of cultural sites may reduce the ability of some members of the public to become involved in the decision of what to protect as well as hamper public oversight and enforcement of land-use restrictions. It may even reduce overall protection as public entities remove themselves from the cultural heritage protection game, ceding the territory to land trusts. Second, private perpetual restrictions problematize the balance between intergenerational rights and present responsibilities. Reverence of past cultural events and properties may hamper future growth as users of conservation easements restrict properties in perpetuity without enabling communities to revisit or modify the restrictions. Third, conservation easements may be protecting sites that were not in danger of exploitation. In such cases, conservation easements subsidize landowners with questionable public benefits. Finally, using conservation easements to protect sacred sites commoditizes cultural heritage. Paying people to protect cultural heritage could degrade cultural heritage or civic responsibility.
Christopher Odinet (Southern) has posted Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure (Cincinnati Law Review) on SSRN. Here's the abstract:
During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles began cropping up in newspapers and media outlets across the country recounting stories of people who had fallen behind on their mortgage payments returning home one day to find that all of their belongings had been taken and their homes heavily damaged. These homeowners soon discovered that it was not a random thief that was the culprit, but rather property management contractors hired by the homeowners’ mortgage servicer.
The issues arising from these practices have become so pervasive that lawsuits have been filed in over 30 states, and legal aid organizations in California, Florida, Michigan, Nevada, and New York report that complaints against lender-engaged property managements firms number among their top grievances. This Article analyzes lender-engaged property management firms and these break-in foreclosure activities. In doing so, the paper makes a three-part call to action, which includes the implementation of bank contractor oversight regulations, the creation of a private cause of action for aggrieved homeowners, and the curtailment of property preservation clauses in mortgage contracts.
Thursday, July 16, 2015
Vox has a story on Minneapolis's attempt to increase the amount of housing by attacking parking regulations:
Cities originally created minimum parking requirements because they didn't want residents' cars clogging up street parking. Mandating the construction garages or off-street lots would ensure that didn't happen.
But in practice, parking is an urban real estate amenity that responds to demand just as well as, say, fitness centers or pools. If residents are looking for buildings with parking, developers are free to provide it — and even though the requirement was eliminated in downtown Minneapolis years ago, most developers have continued to do so.
But a strict requirement means that every building has to include parking whether residents want it or not. Typically, the cost of that parking then gets built into the rent. It might not seem like a big deal, but in Washington, DC, the underground spots many developers use to comply with these requirements each cost between $30,000 and $50,000 to build.
This makes housing less affordable — especially for low-income residents who are least likely to own cars in the first place. It also subsidizes driving, spurring further development that's based around the car, such as stores that provide free parking, effectively building its cost into the price of their goods.
Sarah Hamill (Osgoode Hall) has posted Common Law Property Theory and Jurisprudence in Canada (Queen's Law Journal) on SSRN. Here's the abstract:
In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to primary use — is preferable to those offered by the property theorists, as it better balances the competing interests of owners, non-owners and the state.
Peter DiCola (Northwestern) has posted Valuing Control (Michigan Law Review) on SSRN. Here's the abstract:
Control over property is valuable in and of itself. Scholars have not fully recognized or explored that straightforward premise, which has profound implications for the economic analysis of property rights. A party to a property dispute may actually prefer liability-rule protection for an entitlement resting with the other party to liability-rule protection for an entitlement resting with her. This Article presents a novel economic model that determines the conditions under which that is the case — by taking account of how parties value control. The model suggests new opportunities for policymakers to resolve conflicts and to develop better information about property disputes through policy experiments. The Article provides recommendations for implementing this new approach and suggests applications in the areas of copyright, trademark, patent, and privacy law.
Tuesday, July 14, 2015
The Washington Post has a long piece on new HUD rules:
[Last Wednesday] the Obama administration . . . [announced] long-awaited rules designed to repair the law’s unfulfilled promise and promote the kind of racially integrated neighborhoods that have long eluded deeply segregated cities like Chicago and Baltimore. The new rules, a top demand of civil-rights groups, will require cities and towns all over the country to scrutinize their housing patterns for racial bias and to publicly report, every three to five years, the results. Communities will also have to set goals, which will be tracked over time, for how they will further reduce segregation.
“This is the most serious effort that HUD has ever undertaken to do that,” says Julian Castro, the secretary of the department of Housing and Urban Development, who will announce the new rules in Chicago on Wednesday. “I believe that it’s historic.”
Molly Brady (Yale) has posted The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection (Yale Law Journal) on SSRN. Here's the abstract:
Along with “persons, houses, and papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” Historically, “effects” have received less attention than the rest of the categories in the Fourth Amendment. However, in the last three years, Supreme Court opinions on Fourth Amendment searches have reintroduced the word “effects” in opinions without a definition of the word, an understanding of its history, or a clear approach to "effects" under the Fourth Amendment.
In the absence of a coherent approach to searches of “effects,” many lower courts apply the standard Fourth Amendment test for a search to personal property: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals lack expectations of privacy in personal property that is unattended in public space (say, a jacket left on a restaurant’s coat rack). The privacy standard was intended to broaden the scope of the Amendment’s protection beyond real property formulas, but lower courts have used real property concepts of privacy to narrow protection for personal property. This is both historically and theoretically unsound.
This Article argues that personal property in public space should be given greater constitutional protection by providing a history and theory of “effects.” A historical account of personal property from the Founding onward demonstrates a constitutional commitment to protecting personal property because of the privacy and security interests inherent in ownership and possession. If Fourth Amendment jurisprudence were instead informed by this constitutional commitment to personal property, courts would determine Fourth Amendment interests in an effect in public space by reference to its nature and context — factors personal property law already uses to ascertain the interests of a person in a thing. Using guidance from personal property law, this Article proposes a framework for identifying protected effects based on their qualities and environment and restoring them to the constitutional significance they deserve.
Jamila Jefferson-Jones (UMKC) has posted Airbnb and the Housing Segment of the Modern 'Sharing Economy': Are Short-Term Rental Restrictions an Unconstitutional Taking? (Hastings Constitutional Law Quarterly) on SSRN. Here's the abstract:
The last few years have seen a reinvention of the economy through the growth of the “sharing economy” or the “new economy.” The modern sharing economy is diverse and is made up of various types of organizations and structures, including shared housing. What ties these various components together is that they “generally facilitate community ownership, localized production, sharing, cooperation, [and] small scale enterprise.”
The rise of the new sharing economy has been a consequence of the latest assault on the old American Dream -- the version in which one is “expected to grow up, get a good job, and make money to buy all of the things [one] might need.” The realization of this dream, however, has been hampered by recent negative economic changes. One pair of commentators has opined that “[t]he sharing economy is not a top-down solution, meaning that it will not be imposed by a set of legislated policies . . . [Rather], it is being built from the ground up by every individual and group that chooses to begin consuming, transacting, or making a livelihood in a new way.”
The sharing economy has redefined consumption in the housing context in a manner that implicates the exclusivity of the use and enjoyment of real property. Consequently, just as with other aspects of use and access to goods, materials, and services in the sharing economy, housing sharing is predicated on two ideas working in tandem with one another: (1) that “we can have access to many things that we need without having to own them all by ourselves” and (2) that by sharing some of the benefits of property ownership -- namely use and enjoyment -- we can also shift some of the (economic) burdens of ownership.
The number of online platforms designed to link property owners with potential short-term lessees has grown rapidly over the last few years. Airbnb, the most well known of these platforms, describes itself as “a trusted community marketplace for people to list, discover and book unique accommodations around the world.” Airbnb boasts that it has connected over twenty-five million guests with hosted properties in 34,000 cities in 190 countries since its founding in 2008. Airbnb is not only the leading online platform for the exchange of short-term rentals, recently, it has been the most controversial as well.
Recently, controversy erupted in New York City, Airbnb’s largest United States market. In October 2013, New York Attorney General Eric Schneiderman subpoenaed Airbnb’s records, requesting data on its hosts for the previous three years. Schneiderman contended that Airbnb hosts in New York City were violating the New York Multiple Dwelling Law. The New York Multiple Dwelling Law requires that certain multiple dwellings units only be occupied by “permanent occupants” -- those residing in the unit for thirty or more consecutive days. The Attorney General also asserted that Airbnb hosts in New York City were not complying with state and local tax registration and collection requirements.
Many state and local governments rely on their inherent police powers to regulate short-term housing in residential areas. In particular, zoning laws -- like New York’s Multiple Dwelling Law -- may overtly prohibit occupation by short-term renters.
Historically, governments have used their police powers to create and enforce zoning restrictions of this nature for the purpose of preserving or improving public safety, property values, and the “character” of residential neighborhoods. These policies are of a bygone era and are ill-suited to address the modern sharing economy. Moreover, local governments do themselves a disservice when they prohibit housing exchanges. Rather than frustrating the goals and purposes for which old economy regulations were designed (e.g., the preservation of property values and neighborhood character), such exchanges may aid in achieving these aims. Additionally, these restrictions may constitute a regulatory taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments.
The sharing economy has positively impacted many individuals and communities, but there is also a brewing conflict between this genesis and the realities of economic regulation -- a conflict of which the New York Airbnb subpoena controversy is emblematic. Thus, in the housing context, we see this conflict playing out in the tension between growing patterns of home sharing and existing regulations that prohibit such sharing.
This Article focuses on the question of whether municipal restrictions on short-term leasing constitute unconstitutional takings of private property without just compensation. Part I gives an overview of home sharing in the new economy via short-term leasing. In doing so, it not only examines the controversy in New York, but also provides a historical perspective on home sharing in the United States, focusing particularly on the proliferation of boarding houses in the nineteenth century as a corollary to today’s home sharing market. The examination of this topic is couched in the historical context of minority, immigrant, and women homeowners’ “taking in boarders” in lean times in an effort to make ends meet and maintain ownership of their homes. Part II analyzes short-term leasing restrictions under the Takings Clause. In doing so, it examines the nature of short-term leasing restrictions and the reasons employed by municipalities to justify these regulations. Part III discusses the New York Airbnb controversy. Finally, Part IV argues that such facilitation is desirable because municipalities actually do themselves a disservice when they prohibit these new economy housing exchanges. Such exchanges can help to preserve property values by providing income to homeowners that can be used to offset mortgage and maintenance costs -- in other words, sharing the burden of ownership. If homeowners are able to do so, they are more likely to be able to maintain their homes in the short-term and, in the long-term to maintain ownership. Moreover, municipalities may also reap economic benefits from permitting such exchanges.