PropertyProf Blog

Expanding Homeownership

Fannie Mae is rolling out a new program designed to help poor and minority borrowers qualify for mortgages:

This week, the government-sponsored enterprise unveiled plans for a new loan product. HomeReady is specifically targeted toward low-income and minority households, and it allows prospective buyers to pay just a 3 percent down payment up front, provides a homeowner’s education course, and the biggest boon—the program will allow applicants to count income from those who won’t actually be borrowers, toward their gross income. That means in multi-generational households, the contributions of children or grandparents—and for younger borrowers, financial assistance from parents, or aunts and uncles—could be included. For current owners who rent a room or portion of their home for extra income, the money they receive from tenants would count as income if they decide to move.

Ely on State Constitutional Law and the Protection of Economic Rights Before the Civil War

James Ely (Vanderbilt) has posted ‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War (NYU Journal of Law & Liberty) on SSRN.  Here's the abstract:

This essay explores state constitutional law before the Civil War pertaining to economic rights. It argues that antebellum state courts played a crucial and underappreciated role in defending property and contractual rights from legislative assault. Before the adoption of the Fourteenth Amendment most constitutional questions relating to property were handled in state courts and implicated state constitutional law. The essay considers how state courts shaped takings and due process jurisprudence, often anticipating subsequent decisions by the Supreme Court of the United States. They were the first, for example, to consider the scope of “public use” and the amount of “just compensation” when government sought to acquire property. Moreover, they grappled with the extent to which the due process guarantee in state constitutions conferred substantive protection to the rights of property owners. Despite the pivotal role of the Supreme Court in fashioning contract clause jurisprudence, state courts heard far more contract clause cases and significantly impacted the formation of law in this field as well. State constitutionalism was vitally important to the development of property owners.

As Japan's Population Falls, Abandoned Properties Proliferate

The New York Times looks at the growing number of abandoned homes in the Tokyo suburbs:

These ghost homes are the most visible sign of human retreat in a country where the population peaked a half-decade ago and is forecast to fall by a third over the next 50 years. The demographic pressure has weighed on the Japanese economy, as a smaller work force struggles to support a growing proportion of the old, and has prompted intense debate over long-term proposals to boost immigration or encourage women to have more children.

For now, though, after decades in which it struggled with overcrowding, Japan is confronting the opposite problem: When a society shrinks, what should be done with the buildings it no longer needs?

Many of Japan’s vacant houses have been inherited by people who have no use for them and yet are unable to sell, because of a shortage of interested buyers. But demolishing them involves tactful questions about property rights, and about who should pay the costs. The government passed a law this year to promote demolition of the most dilapidated homes, but experts say the tide of newly emptied ones will be hard to stop.

Blomley on the Territory of Property

Nicholas Blomley (Simon Fraser) has posted The Territory of Property (Progress in Human Geography).  Here's the abstract:

The pervasive and important territorial dimensions of property are understudied, given the tendency to view territory through the lens of the state. Viewing both property and territory as relational and mutually recursive, I introduce the practical work of property’s territory, the historical moment in which it was produced, the powerful metaphors that work through it, and the habits and everyday practices it induces. The territory of property, I suggest, has a specificity, a presence, and a consequentiality, all of which demand our attention.

McArdle on Reclaiming Abandoned Urban Spaces

Andrea McArdle (CUNY) has posted [Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side (Savannah Law Review) on SSRN.  Here's the abstract:

What understandings about property, the community concerns informing it, and the legal relationships that flow from it can we draw from a city’s buildings and spaces? What contending values and expectations underpin laws that both protect property interests and seek to advance public safety, health, and economic well-being in urban neighborhoods? What explanatory narratives can advocates, analysts, and policymakers discern from such laws? This Article argues that the meaning we can draw from these buildings and streetscapes as they have been constructed, abandoned, or refashioned over time is complex and multifaceted. Using New York City’s Lower East Side landscape as exemplary text, the Article identifies various narratives of regulatory burden, scarcity, abandonment, transgression, and renewal that recur in the discourse of property law, and it considers ways in which local government institutions contribute to the shape of those narratives as regulators, service providers, and owners of property.

The Article begins with a brief account of conditions in the late 1960s and early 1970s that contributed to public and private disinvestment in the storied Lower East Side, a site of intense immigrant settlement at the turn of the twentieth century, and, in the 1950s and 1960s, a space that attracted writers, artists, and political activists. The Article then addresses how these conditions also afforded an opportunity for reclaiming devalued land and distressed neighborhoods. Beginning in the mid-1970s, neighborhood-initiated cultivation of gardens in vacant, burnt- out lots and homesteading occupants’ refurbishing of buildings that had fallen into disrepair created a new source of investment in city-owned property, holding out the promise of community stabilization.

This Article examines the legal implications of these autonomous, self-help responses to disinvestment. Initially, the City supported and legitimized community gardeners’ and homesteaders’ efforts at reclamation. However, when land values rose in the 1980s and 1990s, the City reversed course and invoked laws limiting access to property as it sought to auction off community gardens and to evict homesteaders as trespassers. In response, local gardeners sought redress under legal theories alleging violations of environmental law and civil rights. Squatters and homesteaders asserted rights as adverse possessors. Although these legal claims proved unavailing, by 2002, agreements negotiated on behalf of these claimants permanently protected some community gardens from development and afforded occupants of eleven squatted buildings a new legal status as shareholders of limited-equity cooperative housing.

Drawing on these developments, this Article addresses how such community efforts to reengage with threatened urban landscapes generate legal meaning. It discusses how the recently opened Museum of Reclaimed Urban Space (MORUS), which is literally built into a formerly squatted building in New York’s Lower East Side, both portrays and adds to that meaning-making. By illuminating the particular ways in which the owners and users of these contested spaces invoked both property law and community norms, MORUS documents how the squatter and community garden movements helped reintegrate distressed city buildings and lots as community spaces. The Article concludes with reflection on how the impulse to reclaim space also inevitably transforms it.

Bagenstos on Disparate Impact

Samuel Bagenstos (Michigan) has posted Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities (Cornell Law Review) on SSRN.  Here's the abstract:

At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.

In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.

The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.

Why Do Pandas Born in the U.S. Belong to China?

Because China owns all of the world's pandas and rigidly enforces the loan agreements it makes with zoos around the world.  The Vox explains:

On Saturday, a pair of tiny baby panda twins were born at the National Zoo. The cubs' mother, Mei Xiang, has lived in the United States since 2000. The newborns could be the offspring (via artificial insemination) of another, Tian Tian, who also lives at the National Zoo . . . .

Yet despite their American credentials, the cubs are the property of the Chinese government — as are their parents and all other giant pandas in zoos around the world. And if, a few years from now, the US does something that displeases the Chinese government, one or both cubs could be taken away.

It's happened before. In 2010, China took 4-year-old US-born cub Tai Shan (née Butterstick) from the National Zoo— the only time China has ever permanently repatriated a panda in the modern era. Only a few days before Tai Shan was taken to China, the Chinese government had warned President Obama not to meet with the Dalai Lama on a diplomatic visit — and threatened that it would strain US-China relations if he did. The meeting happened anyway.

[...] Unlike other "charismatic megafauna," pandas are only native to a single country. That gives China much more control over the treatment of pandas than, say, sub-Saharan African countries have over elephants. And it's used that control to its advantage . . . .

Clowney on Black Middle-Class Communities

Stephen Clowney (That's Me!) has posted Boundary Work in Black Middle-Class Communities (Savannah Law Review) on SSRN.  Here's the abstract:

This piece, written for the "Re-Integrating Spaces" symposium at Savannah Law School, explores the spatial reality of black middle-class communities.

Most African-Americans are not poor. In fact, an overwhelming majority of black Americans are squarely entrenched in the rungs of the (lower) middle class. Despite this statistical reality, almost all of the legal scholarship on African-Americans focuses on the struggles of the very poorest black citizens. This brief Article hopes to reverse the trend. Building on insights from sociology and economics, the following pages explore the housing situation of middle-class African-Americans and the resulting geographic setting of non-poor black neighborhoods. In short, this Article asks three questions: (1) Where do black strivers live? (2) Why does it matter? and (3) Can the law mitigate the spatial phenomena that restrict black achievement?

Section I recaps an emerging body of empirical research showing that middle-class black workers reside in communities that are qualitatively worse than their white counterparts. Section II explains how the unique geography of middle-class black life erodes the physical health of African American strivers, threatens the transmission of middle-class values from one generation to the next, and makes it difficult for families to pass on hard-won economic gains to their children. Finally, Section III presents five brief policy proposals that could help reinvigorate middle-class black neighborhoods and spark a sustainable revival of urban environments. Instead of focusing on grandiose but unachievable plans to reformulate the American economy or reanimate public-sector unions, decision-makers should put increased emphasis on: creating new historic preservation districts in black neighborhoods; granting middle-class African Americans greater autonomy from their less well-off black peers; improving public transportation; strengthening school choice programs; and reformulating inheritance rules to prevent irresponsible children from taking over the property of their parents.

Opting out of new editions for casebooks

Rob Anderson (Pepperdine) makes an argument that seems especially relevant for Property professors.  Is there any good reason to assign the newest edition of a property textbook?:

The price of law school casebooks (as well as college textbooks generally) seems to grow every year. At the present time, many casebooks cost over $200 when purchased new. The high cost is made worse by the appearance of a new edition every few years, which makes the cheaper used books in short supply (or completely unavailable). New editions seem to appear every five years or so for many casebooks, and this is true not only in fast-moving areas of law, but even in subjects where most of the cases are decades (or centuries) old.

We as faculty can greatly reduce the cost of casebooks to students by simply opting out of new editions and staying with the older edition. This makes more used copies available, lowering the cost for students, and reduces the burden on us of updating reading assignment page references to substantially the same material. Although the publisher may not directly sell new copies of the older edition, there are ample sources available from third parties, both new and used. Indeed, upon the appearance of a new edition, there is often a glut of new and used books that hits the market for low prices as the old edition becomes obsolete. These can be acquired for pennies on the dollar, saving students significant amounts of money.

I adopted this strategy for the first time this year, buying up used casebooks for my Pepperdine 1L students from Amazon and other websites (see below). These used books were available at approximately a 97% discount to the price of a new copy of the new edition. This saved my students over $11,000 and probably saved some trees as well. I doubt that the students will miss out on any great new cases by using the earlier edition, and to the extent there are new developments I can supplement the readings myself.

Kochan on the Nemo Dat Principle

Donald Kochan (Chapman) has posted Dealing with Dirty Deeds: Matching Nemo Dat Preferences with Property Law Pragmatism (Kansas Law Review) on SSRN.  Here's the abstract: 

When title disputes arise between two or more purchasers, we have accepted pragmatically that exceptions must be made to applying the Latin maxim nemo dat quod non habet – roughly translated to mean that one can only transfer what they own – even though using such exceptions means that we will, in essence, at times validate fraud and other dirty deeds. This Article outlines the basic place of the nemo dat principle in our system of law, introduces the tensions between the ideal adherence to the maxim and the realities in the world that necessitate exceptions to (or a sometimes less-than-ideal achievement of) the maxim, summarizes the recording acts and their purposes (along with the types of notice and their uses), and exposes the tensions these recording systems each have with a strict notion of nemo dat. It explains why the protections for bona fide purchasers are necessary to facilitate markets in property and serve other goals, while examining the role of individual responsibility – particularly as it relates to purchaser obligations to record and examine records – as the core justification for setting the rules in a manner that first-in-time title holders sometimes lose out to subsequent purchasers.

Pragmatism concerns make some nemo dat exceptions necessary, but we should find ways to minimize the need for invoking such exceptions principally by shrinking the pool of those who fit the criteria for the bona fide purchaser exception. This Article proposes that we should search for ways to so shrink that pool not by changing the nature of the protections available to innocent bona fide purchasers but instead by finding new ways to inject more information about land conveyances into the public view – beyond traditional recording mechanisms – so that more and earlier notice of possible competing property claims is available to responsible purchasers exercising due diligence.

To accomplish that goal, this Article presents a proposal to take advantage of what can be characterized as “the underexploited utility of inquiry notice.” The idea is to create better conditions to give first-in-time purchasers additional opportunities to protect their title interests by more easily triggering the inquiry obligations of second-in-time and other subsequent purchasers. The Article outlines the components of a proposed new and innovative service called the “Title-Related Inquiry Notice Triggering System” (TINTS). As outlined, TINTS would operate in a manner that would provide a means for purchasers of property to protect their claim to title even earlier than official recording might accommodate. TINTS, or other innovations like it, can assist us in matching nemo dat preferences with property law pragmatism.

Who Does Federal Housing Policy Help?

Vox puts together a cool chart:

If you take out a mortgage to buy a house, the federal tax code lets you deduct your interest payments from your taxable income. People can also deduct state and local property taxes from their federal income taxes.

The blue bars show the value of these tax breaks for different income brackets. They can be compared with subsidies the federal government provides to low-income people to help them afford housing — represented by the yellow bar. As you can see, the tax breaks provided to the richest Americans, on a per-person basis, dwarf the value of housing subsidies provided to those with low incomes.

But the combined effect of these policies is to hurt the middle class the most. Most households in the middle of the income distribution are too wealthy to qualify for federal housing subsidies. At the same time, they tend to have relatively small houses and be in low tax brackets, so they don't get much benefit from housing-related tax breaks.

Call for Papers: Local Government Law Works-in-Progress

The Rutgers Law School Center on Law in Metropolitan Equity (CLiME) is proud to host the Third Annual Local Government Law Works-in-Progress Conference.

This scholarship conference will take place November 6-7, 2015 at the S.I. Newhouse Center on Law and Justice at the Rutgers School of Law in downtown Newark, NJ. Although all topics are welcome, we are particularly interested in showcasing papers that interrogate the meaning and utility of an equity principle in local governance.

This year we hope to attract a few local government-oriented scholars from outside law to attend and comment.

Please register for the conference by October 2, 2015 here.

Participants will have the option of either presenting a full draft or an early work in progress/abstract. Draft papers will be due October 16, 2015.

Questions and submissions should be directed to [email protected].

Qu on the Owners’ Committee in China

Difan Qu (Hong Kong) has posted The Owners’ Committee in China: Another Non-Owner Owned Puppet? (Tsinghua China Law Review) on SSRN.  Here's the abstract:

The Owners’ Committee in China, ever since its creation it the 90’s of the 20th century, has been unpopular and even strange to most private property owners in China. Although ideally, a well-functioning Owners’ Committee should benefit the property owners and serve to be the entity acting in the best interests of the owners. However, due to political, cultural as well as legal factors, the establishment of Owners’ Committee in China has yet to become a typical practice, much less of becoming a functioning entity seeking to safeguard owners’ interest. There is very little study in both Chinese and English literatures of the Chinese Owners’ Committee on how law can facilitate its formation and operation. This article utilizes the findings of the social science researches conducted on this topic and addresses various problems of the Owners’ Committee, and proposes several solutions on how the reconstruction of our current legal mechanism can facilitate a well-functioning Owner’s Committee.

Why Bike Share Will Never Ever Work, Ctd.

Further proof that bike share programs are just a hipster tragedy of the commons:

Brophy on the Integrationist Possibilities of Common Law Property

Al Brophy (UNC) has posted Re-Integrating Spaces: The Possibilities of Common Law Property (Savannah Law Review) on SSRN.  Here's the abstract:

"Re-Integrating Spaces" is part of a symposium on progressive property held at Savannah Law School as part of the re-dedication of their building, which was constructed in the early nineteenth century and used as a hospital for much of its existence.

The essay uses the building's long history as a guide for exploring the history of property rights and race in Georgia and the United States. It emphasizes that while the central tendency of property is about exclusion and control -- as Georgia's history with slavery, Native American removal, and Jim Crow demonstrate. Yet, it points out that sometimes the protection of property rights benefits racial minorities. And it also discusses the long history of the critique of such robust property rights. This lead to discussion of some of the instances where other elements of common law property (and statutory rights) help to shift away from the right of exclusion and control.

The Goonies House vs The Right to Exclude

The owner of the house used in the filming of the Goonies movie has recently become fed up with  tourists doing the Truffle Shuffle on her lawn:

It turns out, when it comes to Astoria’s success at capitalizing on “The Goonies” as a big-time tourist draw, there can be too much of a good thing.

Just a few months after the Astoria-Warrenton Chamber of Commerce staged the film’s 30th anniversary celebration in Astoria and Cannon Beach, both the chamber and the city of Astoria are now trying to keep Goonies fans away from the iconic house featured in the 1985 cult classic.

For 14 years, homeowner Sandi Preston has let fans — within reason — approach, photograph, gawk at and geek out on her property in Uppertown. On occasion, she has even opened up her house to them. “Sandi ... has been very, very accommodating,” City Councilor Russ Warr said. But, with an estimated 1,200 to 1,500 visitors swarming around the house almost every day this summer, Preston and her neighbors near 38th and Duane streets are experiencing fan fatigue.

“The tourism at the Goonies house has, over the last three or four years, absolutely exploded,” Warr said at Monday’s City Council meeting. Preston recently asked the chamber and the city to do whatever they can to limit public access to her home. “She was overwhelmed and looking for help to try to get some semblance of normal life back,” Regina Willkie, the chamber’s marketing director, said. “It’s just a constant stream of people coming at all hours of the day.”

To help stem the tide, the city placed a sign near 38th Street on Monday that reads: “Access closed to Goonies house.” Two months ago, the city posted signs prohibiting Goonies parking on 38th Street, an effort that has lessened vehicular traffic at the house but not foot traffic, Warr said.

“Most people ... think that it’s an attraction, when it really, in fact, is a private residence,” he said.

Stern on Expropriation Effects on Residential Communities

Shai Stern (Bar-Ilan) has posted Expropriation Effects on Residential Communities (Context, Criteria & Consequences of Expropriation) on SSRN.  Here's the abstract:

This Article suggests that individuals who live in highly cooperative residential communities should — in certain instances — be entitled to additional compensation or other remedies when their property is taken through eminent domain. The exclusive takings remedy of monetary compensation equal to the fair market value of the property cannot always account for loss of communality. This Article offers guidelines for allocation of additional remedies (monetary and in-kind) that recognize such loss.

Kreiczer-Levy on Consumption Property in the Sharing Economy

Shelly Kreiczer-Levy (Academic Center of Law and Business) has posted Consumption Property in the Sharing Economy (Pepperdine Law Review) on SSRN.  Here's the abstract:

Various doctrines from different areas of the law provide special legal protection for property that is produced and used for personal use, creating the legal category of "consumption property." Zoning, criminal procedure, discrimination, foreclosure and bankruptcy, taxes and eminent domain all treat property for consumption differently than commercial property. Recently, a new social phenomenon known as the sharing economy allows owners to rent out personal assets such as a room in their home, their private car, a bicycle, and even pets. The sharing economy challenges the foundational distinction between privately used property and commercial property and leads to fragmentation of uses and symbolic meanings. This fragmentation raises new questions: what are the boundaries of intimacy in the realm of modern consumption? How should the law regulate business transactions in intimate locations? This article presents the category of personal consumption property, arguing that the sharing economy profoundly challenges it, and then offers new ways to reinvent this category, introducing the framework of consumption property as a nexus of connections. The new framework also has numerous legal implications ranging from fair housing law and public accommodations law to taxes, business licenses and other regulatory regimes.

HBO's New Show on Affordable Housing

Vox gives a rundown of HBO's Show Me A Hero, which details a white middle-class neighborhood's resistance to a federally-funded public housing development:

As its central topic, Show Me a Hero has taken the idea of housing desegregation — a hot-button issue in the late 20th century that almost never comes up today — and it casts its net so wide that in later episodes, it feels like everybody in the city of Yonkers, New York, is one of its characters.

All of this should contribute to a miniseries that suffers from dullness and bloat, but Show Me a Hero always feels thrillingly alive and attuned to the way that all politics is personal. "Not in my backyard" stops being a concept and becomes something driven by raw, human emotion, and that makes it all the more powerful when wounds begin to heal. Later in the series, one character tells another that "votes aren't love," but it's not hard to see why these people can get confused on the matter. They put everything they have into these seemingly tiny, local issues, and when they come out the other side, they're different — at once more hopeful and more beaten down.

Plater on the National Land Use Planning Act vs. Coastal Zone Management Act

Zygmunt Plater (Boston College) has posted A Glimpse into the Realpolitik of Federal Land Planning, in Comparative Context with the Mysterious NLUPA and the CZMA (The George Washington Journal of Energy & Environmental Law) on SSRN.  Here's the abstract:

There is an old adage that “those who fail to plan, plan to fail.” Planning is a fundamentally rational, basal process shared at some level and to some degree by all, establishing and implementing frameworks to guide our human actions toward the accomplishment of various desired and defined objectives. Thoughtfully designed and implemented planning is no less rational and essential for governmental entities than it is for corporations and individuals.

This essay surveys an interesting comparison between two quite different federal approaches to directive land and resource management planning. On one hand, the analysis reviews the federal mandate for layered, cooperative, intra-governmental land planning incorporated within the National Land Use Planning Act (“NLUPA”) — a statute repeatedly proposed in the 1970s but which never became law — and within the Coastal Zone Management Act (“CZMA”), its sibling statute, that did. On the other hand, this essay observes the circumstances and effectiveness of federal statutory directives to federal management agencies to create and implement mandatory operative plans as a basis for resource regulatory actions on federal lands generally. Both of these models address the need to guide market forces to maximize particular defined societal objectives and to avoid specific public disbenefits.

Shortcomings are frequently encountered, however, in the implementation of many federal resource plans, visible in a variety of disappointing occurrences including oil spill contingency responses in Alaska and the Gulf of Mexico, forestry management, mining, rangeland grazing, and a variety of other federal planning settings. Deficiencies in federal land and resource planning are pondered in this analysis as they are embodied in Norton v. Southern Utah Wilderness Alliance (“SUWA”). Underlying the dysfunctions discernible in many federal resource management plans is a fundamental systemic tension lying within the structure of modern governance. The analysis here finishes with a proposal for understanding how government currently malfunctions in the resource management planning setting and how that can be rectified.