PropertyProf Blog

Housing in a Time of Expanding Crisis @USFLaw

 

This past Friday I had the pleasure of participating in a symposium on Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis, hosted by the wonderful faculty and law review folks at the University of San Francisco School of Law (and a special hat tip to our very gracious host, Tim Iglesias). The timing of this gathering couldn’t have been better. 2015 was a busy year in the housing world as SCOTUS upheld the validity of the disparate impact theory under the Fair Housing Act and HUD issued its significantly updated regulations on the obligation to affirmatively further fair housing. Moreover, cities and local governments are being looked to more than ever to solve major and seemingly intractable issues around housing, spurring a host of new policies, programs, and initiatives. The impressive participants of the USF symposium (coming from practice, government, non-profit, and the academy) explored these and related issues, including potential solutions to pressing problems of housing. Here’s an overview of what the panelists had to say:

What’s the matter with housing?
Rachel Bratt (Harvard Joint Center) kicked off the day by giving an overview of the nation’s current housing woes. She noted that the increase in income inequality over the last 20 years, combined with disinvestment and misinvestment of public resources, has been at the core of the affordable housing issue. She also described how political spending has played a role in further entrenching existing housing interests (in 2015, $234M was spend on real estate/finance lobbying, second only to healthcare). Bratt also explained the uneven distribution of federal housing benefits to the wealthy and the continued persistence of concentrated racial segregation. Rosie Tighe (Cleveland State-Urban Affairs) followed by describing the particular housing problems facing so-called “shrinking cities” (those places in an intense population-decline). She noted that the issue for these cities has more to do with poor quality affordable housing, rather than quantity. Tighe described the failure of low-income housing tax credits to meet the needs of these locales, and discussed the need for more scattered-site developments in these areas, while recognizing the financing and property management challenges inherent in such developments. Peter Dreier (Occidental-Poli Sci) rounded-out the discussion by pointing out that the current political discussions around the presidential election have focused much on wages and other issues, but not at all on housing. He described some reasons for the absence of attention to this important area, and drew the strong connection between household over-all health and housing.

What’s the matter with our current solutions?
Chris Odinet (Southern) started the discussion by describing some current efforts by states and local governments to deal with the fall-out from the housing crisis and on-going issues of blight and abandoned property. He then explained a number of recent federal court cases and acts taken by the FHFA that have significantly frustrated these efforts and also seriously call into question the ability of states and local governments to be innovative in dealing with issues of housing when federal programs are involved. Michael Allen (Relman, Dane, & Colfax) discussed the Fair Housing Act and the new “affirmatively furthering” regulations. He went into depth on contemporary disagreements between affordable housing advocates (who support more affordable units) and fair housing groups (who support integrated housing, and advocated for a way to reconcile their views under the auspices of these new HUD regulations. John Infrana (Suffolk) followed by describing the types of housing in and changing household composition of many cities. Despite these changing demographics, however, housing has not kept pace. In connection with this, Infranca pointed to the many possibilities that micro-housing and accessory-dwelling units (ADU) provide in the way of meeting this need. He noted that ADUs allow for greater economic diversity and can better align with demographic trends, but noted current legal barriers to them such as occupancy requirements and zoning restrictions. Marcia Rosen and Jessica Cassella (both of the National Housing Law Project)) concluded the panel by discussing the current state of the public housing program in the U.S., noting that there are currently 1.2M units (and ever-declining). She described HUD’s recent efforts to give public housing authorities (PHAs) a financing tool to rehab and rebuild these properties through the Rental Assistance Demonstration Program (RAD). This program essentially allows PHAs to convert their public housing stock into section 8 funded housing, and to combine section 8 with tax credits and other forms of debt and equity financing to fund the project. Cassella stated that although the program has great potential in terms of revamping old and decaying public housing properties, there are draw-backs in the way of transparency and long-term funding stability.

What are some new solutions?
For this final panel, John Emmeus Davis (Burlington Community Development Associates) gave an overview of community land trusts (CLTs)—currently over 280 exist nationwide—and their successes across the country. He noted that these types of entities are usually most successful in communities where there would otherwise be no affordable housing available. He noted the ability of CLTs to empower communities, protect tenants, and provide street-level land reform. Andrea Boyack (Washburn) followed by noting the current lack of rental stock compared to the growing demand across the country. She pointed out that in 2015 over half of the population of the U.S. is renting, with an annual demand of 300K new rental units per year. She followed by describing some current statistical trends in American homeownership and posited a number of ways in which cities and states in particular can seek to achieve solutions to these major housing problems. Lastly, Lisa Alexander (Wisconsin) discussed the the human right to housing, not through the lens of federal law, but rather through the ways in which localities across the country are building legal structures that provide many of the rights associated with a right to housing. She noted that market participation has been important to this process, and she used the “tiny homes for the homeless” movement and community control of vacant land as examples.

You can watch each of these presentations by clicking on the youtube video above. Participants, moderators, and USF Dean John Trasviña (former HUD assistant secretary for fair housing) are pictured below.

Map of the Day: Writing Systems of the World

Kofele-Kale on Asserting Permanent Sovereignty Over Ancestral Lands

Ndiva Kofele-Kale (SMU) has posted Asserting Permanent Sovereignty Over Ancestral Lands: The Bakweri Land Litigation Against Cameroon (Annual Survey of International & Comparative Law) on SSRN.  Here's the abstract:

The Article focuses on the recently concluded Bakweri land case against Cameroon in the African Human Rights Commission. The Article uses this litigation as the basis for a re-examination of a host of issues relating to the enforcement of human rights, especially land rights, in postcolonial countries making the slow transition from single-party authoritarian rule to multi-party democratic states. More importantly, it takes a fresh look at the exhaustion of local remedies rule. It asks the relatively simple question: whether an indigenous people seeking to reclaim and assert permanent sovereignty over ancestral lands, forcibly expropriated from them during the period of colonial occupation and subsequently vested in the post-colonial State, should be required to comply with the exhaustion of domestic remedies rule in a country where the rule of law is in its infancy and where the judiciary is neither independent nor impartial.The Article argues that the exhaustion rule should be dispensed with where it is demonstrably clear that local courts are notoriously lacking in independence; there is a consistent and well-established line of precedents adverse to the claimant; and the respondent State does not have an adequate system of judicial protection that complainant can rely on. The Article concludes by advocating for the broadest interpretation possible of the exhaustion rule in order to (a) level the playing field for both parties-the defenseless citizen whose fundamental human rights have been violated and the powerful State responsible for the violation; (b) preserve the right of individual petition now entrenched in all international human rights instruments; and (c) give true meaning to the principle of equality-of-arms upon which all human rights contests are anchored.

Rhee on Mortgage-Backed Securities

June Rhee (Yale - Business School) has posted Getting Residential Mortgage-Backed Securities Right: Why Governance Matters (Stanford Journal of Law, Business, and Finance) on SSRN.  Here's the abstract:

Residential mortgage-backed securitization (RMBS) is a type of asset-backed security in which the RMBS investor's return on its investment comes from the monthly mortgage payments received from the underlying pool of mortgages. Before securitization, mortgage lenders kept loans on their balance sheet until maturity retaining mortgage risks. Through securitization, however, these lenders were able to sell these mortgages and their risks to other entities (RMBS investors) that were more willing and believed to be better suited to take on such risks. Before the financial crisis, RMBS was a popular investment opportunity widely held by pension funds, mutual funds and other financial firms. As these entities participated in the mortgage market, sources of funding for potential homeowners expanded and mortgage risks were distributed to entities better fit to take on the risk. These benefits were not sustainable, however, as the integrity of mortgage and RMBS value was undermined as seen during the 2007 financial crisis.

In a recent RMBS lawsuit brought by the RMBS investors against the mortgage lenders (referred to as mortgage originators in RMBS), two-thirds of sample mortgages acting as a collateral for RMBS were shown to have breached the representations and warranties provided by the mortgage lender. This means that two-thirds of the collateral for RMBS were lower quality than represented by the lenders and that the collateral was insufficient to support the stated quality of RMBS. The warranties included compliance with the mortgage lenders' underwriting guidelines, accuracy of mortgage level information and no fraud in issuing and managing these mortgages. In another lawsuit brought by institutional investors against an issuer of RMBS, the investors showed a "systemic and pervasive deviation from usual, customary and lawful servicing practices by servicers managing the collateral mortgages" for the investors of RMBS. As revealed in the financial crisis, these examples unfortunately were not rare occurrences. One has to wonder how this massive undermining of mortgage and RMBS integrity was possible. RMBS investors were considered more "sophisticated" players in the market. This paper attempts to answer this question through a close analysis of the RMBS contractual structure.

Harvard Postdoctoral Fellowships in Private Law

Our friends at Harvard have announced two exciting fellowships for recent grads.  If you know any promising young property scholars who might be interested, please pass this information along.  Here's a link to Harvard's descriptions of the fellowship (requires a bit of scrolling down).  I'm posting below the call for the Private Law Fellowship.  There are additional fellowships for those with specific interests in intellectual property.

PRIVATE LAW POSTDOCTORAL FELLOWSHIP, 2016-2018

CALL FOR APPLICATIONS

PURPOSE: The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law.   Applicants should be aspiring academics with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law, unjust enrichment, restitution, equity, and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law. The Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Project pursuing publishable research that is likely to make a significant contribution to the field of private law, broadly conceived. More information on the Center can be found at: http://www.law.harvard.edu/programs/about/privatelaw/index.html.

PROGRAM: Postdoctoral Fellowships in Private Law are full-time, two-year residential appointments, and the Project is now advertising for a postdoctoral fellow starting in the Fall of 2016. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Project does not impose teaching obligations on fellows, although fellows may teach a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on private law, and other events designated by the Project. Fellows are also expected to help plan and execute a small number of events during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. Through organizing events with outside speakers and attending seminars, fellows interact with a broad range of leading scholars in private law. The Project also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor its Student Fellows. Finally, fellows will be expected to blog periodically (about twice per month) on our collaborative blog, New Private Law (blogs.harvard.edu/nplblog).

STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with office space, library access, and a standard package of benefits for employee postdoctoral fellows at the Law School. The annual stipend will be $50,000 per year.

ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in law. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship in private law and theory. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement.

 

APPLICATION: Completed applications must be received at [email protected] by 9:00 a.m. on March 1, 2016. Please note that ALL application materials must be submitted electronically, and should include:

1. Curriculum Vitae

2. PDFs of transcripts from all post-secondary schools attended.

3. A Research Proposal of no more than 2,000 words describing the applicant’s area of research and writing plans. Research proposals should demonstrate that the applicant has an interesting and original idea about a research topic that seems sufficiently promising to develop further.

4. A writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting, original ideas. This can be a draft rather than a publication. Applicants who already have publications may also submit PDF copies of up to two additional published writings.

5. Three letters of recommendation, emailed directly from the recommender. Letter writers should be asked to comment not only on the applicant’s writing and analytical ability, but on his or her ability to generate new ideas and his or her commitment to pursue an intellectual enterprise in this area. To the extent feasible, letter writers should provide not just qualitative assessments but also ordinal rankings. For example, rather than just saying a candidate is “great,” it would be useful to have a statement about whether the candidate is (the best, in the top three, among the top 10%, etc.) among some defined set of persons (students they have taught, people they have worked with, etc.).

All application materials with the exception of letters of recommendation should be e-mailed by the applicant to [email protected]. Letters of Recommendation should be emailed directly from the recommender to the same address.

For questions or additional information, contact:

Bradford Conner, Coordinator, [email protected].

Juma of Itanda

(photo of the Victoria Nile in Uganda)

Moscow, Idaho—where I live and teach—is situated in a wonderfully complex property landscape. Unlike many areas in the interior West, we are near National Forests and Wilderness areas, as well as largescale private timber lands. Our University is situated on historic Nez Perce tribal land, and the Nez Perce’s flight toward Canada began just south of here. And we are in salmon and steelhead habitat, have access to some of the best whitewater boating in the world, and are a western stone’s throw from the somewhat controversial four Lower Snake River dams. Rivers, and what many of us think of as our rights in free-flowing rivers, are an integral part of our community and culture. We have unlimited opportunities to think and talk about how we define and allocate rights to natural resources.

So, while it might not be obvious, that’s why I’m recommending you watch a short video about Uganda. Produced by our hometown favorite greatest company in the world, Northwest River Supply, the video introduces part of the conflict around the Isimba Dam on the Victoria Nile in Uganda. Having just spent a few weeks in Chile talking about dams on the Bio Bió, and wondering about how to think about dams versus recreation and tourism in a developing world context, I think this video tells a very useful story.

Juma of Itanda from NRS Films on Vimeo.

Football, Snow, and Local Property Law

(Photo credit: WSOC TV)

As an avid football fan, the end of January means one thing: the Super Bowl! My beloved Saints were out before the playoffs even began (though for those of you who teach Trusts and Estates, there are some interesting trust issues continuing to impact the team’s owner). But the lackluster Saints’ season has not stopped me from enjoying the playoffs.

While watching the pregame show for the NFC title game, there were numerous clips of snow being shoveled out of the Bank of America Stadium. Being born and raised in Louisiana, this is an odd sight. When I was in kindergarten, it snowed half an inch. We got off three days from school because my hometown of Baton Rouge had no means of dealing with the snow. The world of southern Louisiana is simply different than that of Charlotte, North Carolina.

Seeing the snow had me thinking about everyone who was, and remains, affected by last weekend’s blizzard and, of course, property law. Having lived in the District for a number of years in college and thereafter, I remember being vaguely aware that, as a lessee, I had some duty to shovel the snow from the sidewalk. Turns out the general recollections I had were right. D.C. Code § 9-601 requires that “[t]he owner of a residential or commercial property that fronts or abuts a paved sidewalk shall, within the first 8 hours of daylight after the ceasing to fall of any snow or sleet, remove and clear away, or cause to be removed and cleared away, snow or sleet that is in front of or abuts a building or lot of land to provide a path that is the entire width of the sidewalk, up to 36 inches wide.” This duty can be delegated to a “tenant, occupant, lessee, or other individual by written agreement,” hence why shoveling snow wound up in my lease. Not only does an owner or agent thereof have the duty to shovel snow, you can be fined if you don’t! See D.C. Code § 9-606 (providing for a fine of up to $25). Boy is this Louisiana girl happy the snow police didn’t patrol too regularly the 3800 block of T Street!

This had me wondering how snow was treated in other jurisdictions, so I did a little digging through snow-related statutes. Some states and municipalities follow the D.C. idea of requiring owners of property to remove snow from the sidewalks abutting the owner’s property. See N.J. Stat. 40:65-12 (allowing governing bodies to pass ordinances requiring owners to remove snow from sidewalks); S.D. Cod. L. § 9-30-5 (same); Conn. Gen. Stat. § 7-163a (same); Wilmington, DE Code § 46-418 (requiring occupant, lessee, or owner to remove snow from half of the sidewalk); Englewood, CO Code § 11-3-2 (same). Some of these jurisdictions impose fines for failure to comply—e.g., failure to remove snow in Wilmington, Delaware will get you a fine of $1 per linear foot of uncleared sidewalk, see Wilmington, DE Code § 42-417(a)—and at least one jurisdiction has even arrested an individual for failing to shovel his sidewalk. See Murray v. City of Sioux Falls, 867 F.2d 472 (8th Cir. 1989). Some jurisdictions impose broad duties on landowners to remove snow, e.g., Detroit, MI Code § 50-8-26, while some jurisdictions relieve neighboring owners of any liability to third parties who injure themselves on the sidewalk so long as the owners attempt to remove snow, e.g., 745 Ill. St. Ch. 70/2. Bottom line: every jurisdiction deals snow removal a little differently.

This brings me to property law—every jurisdiction does it a little differently. Sure, there are general principles, but states’ and municipalities’ enactment of those general principles is all a little different. The lead article in the current edition of Property and Probate highlights this with regards to adverse possession law in states east of Mississippi River. How boundary lines are established varies from jurisdiction to jurisdiction. Rules governing servitudes are state specific. To borrow from the late Tip O’Neill, all property law is local.

General principles regarding property law are undoubtedly important, but their local application cannot be forgotten. Just like in football. General principles are important—both the Broncos and the Panthers need to block, pass, run, kick—but the way each team applies those general principles will determine who takes home the Lombardi Trophy on February 7.

Carroll and Odinet on Gay Marriage, Property, and Debt

Andrea Carroll (LSU) and Chris Odinet (that's me!) (Southern) have posted Gay Marriage and the Problem of Property (Washington University Law Review Commentaries) on SSRN. Here's the abstract:

The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Essay we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court’s decision may have the undesirable affect of undoing the carefully laid plans of the spouses. We conclude that courts and legislatures have by no means seen the end of the gay marriage debate. Rather, a host of unforeseen collateral issues lie on the horizon.

Private property, markets, and natural resources: Lessons from Chile's water code

As part of this semester’s introduction to Environmental Law, I asked my students what “Environmental Law” means to them. The first answer was “government interference with private property rights.”

Because any resource protection or allocation regime must work in place, I spend a lot of time in all of my classes discussing the hows and whys—and benefits—of natural resource regulation in Idaho. One aspect of this discussion is always about the role of free market principles in managing the natural environment. But this aspect of the conversation seems to trend toward the abstract, without context that is meaningful for students who might have grown up in the farming, ranching, timber, and mining towns that are still home to many Idaho residents.

The first two weeks of January (both this year and last), I co-taught a course on international aspects of water resource conflicts in the Bio Bío river basin in Chile. Two things tend to surprise our students. First, new dams (including this approved project on the Rio Cuervo in northern Patagonia) are a significant part of Chile’s water resource planning, for a variety of both simple and complex reasons. And second, Chile has chosen to privatize water rights and rely on a market approach to allocating water use.

Despite being thousands of miles from home in a country most of them know very little about, this second element of Chile’s water resource regime provides context useful for my Idaho law students, many of whom innately distrust government and prefer market-based natural resource regulation.

After the Pinochet military coup in 1973, the new military dictatorship relied on a group of largely U.S.-trained economists knows as the “Chicago Boys” to implement a water code that relied almost entirely on privatization and freely-tradable water rights. Carl Bauer’s book Siren Song (and his related articles) contains an excellent overview of Chile’s water code, with Silvia Borzutzky and Elisabeth Madden (Markets Awash: The privatization of Chilean water markets, 25 J. Int. Dev. 251 (2013)) providing an update on changes since Siren Song was published in 2004.

Why is the Chile story useful for my Idaho students? Because, as you might imagine, the system hasn’t worked out as hoped. In practice, Chile’s water markets work relatively well in watersheds without competing types of uses (i.e., little or no hydropower v. irrigation conflict). And not surprisingly, the markets work relatively well when sufficient water is available for all users.

But when there is conflict, both with respect to the type of use or amount of water available, the system struggles. Part of the difficulty is due to a system that encouraged speculation, that doesn’t seem to honor priority in time, that failed to precisely define rights to water, or that made an unrealistic distinction between consumptive and non-consumptive uses. On that last point, the Chilean Supreme Court determined that a dam operator, with a “non-consumptive” right, could freely alter water flows even if the altered flows harm preexisting downstream consumptive rights holders.

This is only a simplified, incomplete introduction. But for anyone interested in property, water, or natural resources management, Chile’s story is fascinating. I recommend considering it. It relies on private property rights without adequately protecting them. It characterizes water as a public good, while allowing (until recently) private speculation and hoarding. It adopted an ‘American’ understanding of the role of the market to a greater extent than we’ve ever considered. And it provides a great case study to help think about water resource conflicts in the western United States, and the appropriate balance of market mechanisms and government regulation.

Lehavi on Zoning and Market Externalities

Amnon Lehavi (ICH - Radzyner) has posted Zoning and Market Externalities on SSRN.  Here's the abstract:

The regulation of land use is considered one of the key powers of local governments since zoning was introduced in the United States a century ago, but the scope of this power and the nature of its underlying theory are still far from settled. The control of incompatible uses and other types of environmental externalities has been established as a quintessential feature of zoning. This is also the case with regulating fiscal externalities, according to which private developers must account for increased public expenditures.

What remains largely obscure, however, is the legitimacy of local governments in regulating pecuniary externalities and other types of private economic activities that have an aggregate effect on the real estate market -- defined here as “market externalities.” May zoning decisions limit the scope of new commercial uses, such as shopping malls, if the city believes that there is already an excess supply of them; or constrain the entry of big-box retailers to preserve the economic viability of a downtown business district? Can a land use ordinance limit, or entirely prohibit, the renting out of housing units in a certain neighborhood, to keep out investors who might drive up real estate prices? Is government entitled to require a developer of market-rate properties to pay a mitigation fee to finance affordable housing units -- under a theory that the project would generate new demand for local services provided by modest-income workers who are in need of housing solutions?

This Article develops an innovative theory of zoning and market externalities. It argues that the zoning power should generally extend to regulate market externalities -- provided that such decisions are based on a general land use policy that can be clearly identified, and are not tailored to merely block, or legitimize, a specific project.

Fennell on Doubts About Fee Simple Absolute

Lee Anne Fennell (Chicago) has posted Fee Simple Obsolete on SSRN.  Here's the abstract:

Urbanization has dramatically altered the way in which land generates and forfeits value. The dominant economic significance of patterns of land use and the opportunity costs of foregone complementarities have made the capacity to reconfigure urban property essential. Yet the architecture of our workhorse tenure form — the fee simple — is ill-suited to meet these challenges. The fee simple grants a perpetual monopoly on a piece of physical space — an ideal strategy when temporal spillovers loom large, interdependence among parcels is low, most value is produced within the four corners of the property and cross-boundary externalities come in forms that governance strategies can readily reach. But times have changed. Categories of externalities that were once properly ignored by the fee simple have become too important to continue neglecting. This paper argues for alternative tenure forms that would move away from the endless duration and physical rootedness of the fee simple.

Communities, Co-Owners, and Privacy

Greetings readers of PropertyProf Blog!  I am delighted to join the crew of bloggers here and look forward to sharing thoughts with you and, more importantly, reading your views on property issues in the modern world.

This week I have been neck deep putting the finishing touches on an article, Privacy and Community Property.  (Which I will be presenting this year at ALPS, so come join us in Belfast in May!)  Not to bore folks with details, but basically the article explores intra-spousal privacy rights in community property regimes with regards to community property.  For example, A and B marry.  A buys a diary.  Barring some exception, under community property law, the diary is classified as community property, meaning it is jointly owned by the spouses from the moment it is acquired.  Being classified as community property also means that the diary has to fall under some managerial scheme.  The default managerial scheme which the diary likely falls under is equal management, which means either spouse can manage (ex: sell, encumber, lease, etc.) the diary.     A writes in the diary.   A tucks the diary deep in a drawer and puts a lock on it like a second grader would.  

Query:  can B read the diary?

The diary example is perhaps a silly example you would expect to find being argued about on the playground of an elementary school, but the question comes up regularly in divorce cases.  Can A read B's emails without B's consent?  Answer:  Sometimes yes, sometimes no, all turning on reasonable expectations of privacy and whether B's "intrusion" into A's seclusion was highly offensive.  (See White v. White, 781 A.2d 85 (N.J. 2001); State v. Walker, 491 Mich. 931 (2012).)  Is it an unreasonable intrusion upon the seclusion of A for B to videotape A unknowingly in the bedroom A and B share?  Answer:  Yes.  It is always a highly offensive intrusion.  (See Miller v. Brooks, 472 S.E.2d 350, 355 (N.C. App. 1996); Clayton v. Richards, 47 S.W. 3d 149, 153 (Tex. Court of Appeal Texarkana 2001); Marriage of Tigges, 758 N.W.2d 824, 825 (Iowa 2008).)

These issues are fascinating to me, particularly in the community property setting.   Community property is everywhere:   your house, your car, your email, this blog (see section 5.2 of Typepad's Privacy statement establishing my ownership over this particular post!).  If you live in one of the nine community property jurisdictions, as I happen to, do you have any right of privacy with regards to that community property? 

I won't bore you here with the long details of my argument, but, in brief, the answer to me must be yes, but community property law muddies the privacy waters.  Thus, I assert there needs to be clarification in community property laws and delineate how such clarification could occur.

Thinking about community property law and the joint ownership regime created through community property had me contemplating other situations of joint ownership, like tenants in common and joint tenants.  It is well-established that these forms of joint ownership grant each joint owner the ability to use the entirety of the property and the inability to exclude the other joint owner from the property.  Does that inability to exclude negate privacy rights the joint owners have in the property?  Assume A and B are not spouses, but best friends, and they buy a diary together. If A can't exclude B from the diary, can A have any expectation of privacy in that diary?

Again, the diary example is elementary, but individuals regularly buy property together--businesses, land, investments.  In many of these acquisitions, the parties will work out ex ante the rights they have in the property vis-a-vis one another.  But in the instances in which A and B do not reach an agreement ahead of time, what privacy rights do A and B have from one another with regards to the jointly-owned property?  

That's my food for thought today.  I will soon be moving away from privacy thoughts and onto thoughts about one of the most un-private events around, Mardi Gras, a multi-week festivity where property issues abound!  It's only 20 days away, so start preparing for some carnival-related posts, including a copy of my own King Cake recipe so you can all share in the revelry of the season.  

 

Map of the Day: The Spread of Drug Overdoses

The New York Times has an important article explaining that drug deaths have increased in nearly every county in the U.S., driven by huge spikes in prescription painkiller abuse.

Schwarcz on the Macroprudential Regulation of Mortgage Lending

Steven Schwarcz (Duke) has posted Macroprudential Regulation of Mortgage Lending (SMU Law Review) on SSRN.  Here's the abstract:

Much regulatory effort has been devoted to improving mortgage lending, the principal source of housing finance. To date, that effort has primarily been microprudential — intended to correct market failures in order to increase economic efficiency. In contrast, and while there is some overlap, this article focuses on a more “macroprudential” regulation of mortgage lending — intended to reduce systemic risk. Although largely underdeveloped in the literature, the macroprudential regulation of mortgage lending would have two goals: an ex ante goal of preventing systemic shocks in housing finance and the housing sector, and an ex post goal of ensuring that housing finance, the housing sector, and the financial system more broadly are robust enough to resist contagion and mitigate adverse consequences if and when systemic shocks occur. This article also examines how macroprudential regulation could be designed to try to accomplish these goals.

Bryan on Federal Lands

Michelle Bryan (Montana) has posted Cause for Rebellion? Examining How Federal Land Management Agencies & Local Governments Collaborate on Land Use Planning (Journal of Energy & Environmental Law) on SSRN.  Here's the abstract:

This article examines how federal agencies and local governments are collaborating in land use planning, with a particular focus on the West. Part I provides a brief overview of local government planning as well as the overarching National Environmental Policy Act (“NEPA”) requirements that apply to federal planning. Part II offers a comparative study of the varied planning approaches across federal agencies, with a particular focus on the role that local governments can play in agency planning. Based on case studies and interviews with federal and local officials, Part III then recommends how to improve federal-local planning efforts so that both federal and local land use planning can be more robust and effective across the landscape. The Article concludes that, while there is an increased awareness of the linkages between federal and local land use planning, and limited examples of emerging collaboration, there is significant room for improvement before we see truly integrated, large landscape planning in the West.

Malheur and losing trust in the rural West

(photo of controlled burn on Malheur National Wildlife Refuge courtesy of U.S. Fish & Wildlife Service)

 

When Ammon Bundy and his crew of militants occupied the Malheur National Wildlife Refuge, they briefly forced western public lands management into the national consciousness. The reactions have at times shaded toward humor, condescension, and elitism, both cultural and intellectual, with unfortunately somewhat limited substantive coverage of the relevant cultural and policy issues that are the foundations of public lands conflict (the excellent regional publication High Country News being a notable exception). But for those of us who care about the West, the Malheur occupation, and the nation’s reaction to it, have the potential to be much more tragedy than farce, even if the militants eventually quietly retreat to their homes.

Because assuming the occupation ends peacefully, perhaps the most significant effect—and perhaps tragedy—of the Malheur situation will be the poisoning of public opinion with respect to the role rural westerners should play in managing the public lands.

In the preface to his excellent book on public lands policy, Crossing the Next Meridian, Charles Wilkinson argues that “law grows up from the people it serves by codifying the values of nonlawyers, of the citizenry at large. Viewed in this light, law must be accessible to the public, for it is—or ought to be—the manifestation of public will.” This notion, while uncontroversial in an abstract sense, is somewhat more complicated in the public lands West, where the primary point of contention is how we define the “public.”

The Malheur Refuge—even more than the Bureau of Land Management-administered “public lands” that surround the refuge and are the primary source of rancher distrust in the federal government—is part of our national birthright, and belongs in a real and enduring sense to all Americans. But even in acknowledging that fact, it seems appropriate to recognize that westerners experience and connect with the public lands in a much less abstract way than non-westerners do. I do not think it is inconsistent to say that even as these lands belong to all of us, they belong to some of us differently than others. This is the fundamental idea behind place-based conservation, collaborative natural resources management, and even federalism or localism: that those who live in and best know a place might have something significant to contribute to its management and future.

So for those of us who disagree with the ideology and strategy of the Malheur militants, it would be a tragic mistake to respond to this newest skirmish in the Sagebrush Rebellion by fomenting distrust of the rural West. Even in the context of public lands management, place matters, as does consideration of the people who do, in fact, know and love that land most (or certainly believe that they do). The public lands do belong to all Americans. But if collaboration, place-based conservation, or Stegner’s claim that “cooperation … is the quality that most characterizes and preserves” the West are going to matter, we must learn to trust the people that live there. And of course, they must earn that trust.

The future of the public lands West depends on our nation trusting the western peoples that live on, love, and are part of our public lands, and we will rue the loss of that trust long after the Malheur militants have given up and gone home. That might be the ultimate tragedy of the Malheur occupation.

Remembering the Fair Housing Struggle on MLK Day

 

It's fitting that on MLK Day we remember Dr. King's property law legacy. Last year topics related to fair housing and access to mortgage credit filled the headlines (from the Inclusive Communities case to continuing issues of access to credit for blacks, Hispanics, and other underrepresented groups). As we enter 2016, let us all be mindful of Dr. King's words: 

"Let us therefore continue our triumphant march . . . until every ghetto or social and economic depression dissolves, and [we] live side by side in decent, safe, and sanitary housing."

Dr. Martin Luther King, Jr.
March 25, 1965
Montgomery, Alabama

Changes at PropertyProf

When Ben Barros asked me to do some guest-blogging on PropertyProf in 2009, I would never have imagined that I'd still be posting here 7 years later.  And I would never have guessed that I'd end up running the site, more or less alone, for 5 years.    

It was a blast from the start.  In the beginning, I thought I was going to post three or four things a week.  I was soon getting up somewhere between 10-15 posts between Monday and Friday, scouring the dark corners of the internet for articles and news stories about property.  

But I took a lot more than I gave.  I've made friendships through the blog.  I've been given a lot of opportunities as a result of the blog.  There are so many smart people out there who know so much more about property than I do; It's been an absolute pleasure interacting with so many of you.  I feel very lucky.

However, what started as a grand adventure has turned into something of a burden.  Maybe it's that I've now got little kids who demand a lot of time and energy.  Maybe it's that I've got other projects I want to do.  Maybe I've just got too much interesting stuff on my DVR.  Whatever the reasons, a few months ago I cut back on my posting, going from 5 days a week to 3.  I found that I liked having that extra time in the evening and not worrying about the blog so much. 

And so I've decided to bring in some new talent to share the burden (and hopefully take over the site one day).  Starting next week, a group of remarkable scholars who will start posting here.  I'm going to stick around for bit through the transition, so you can expect a few more maps and SSRN posts.  If everything goes as planned, the feel of the blog really won't change much. You'll just get more and better posts than what I've managed to put up over the last few months.  Here's the group of all-stars:

Zack Bray (Houston): Zack has some long-term projects to finish-up this spring but will be coming on board in March or April.  Zach writes about property, land use, and natural resources issues.  He's won the University of Houston Teaching Excellence Award.  He knows a lot about horse racing, bourbon, and Texas holdem poker.  His recent works have appeared in the BYU Law Review, the Maryland Law Review, the Utah Law Review, and the Harvard Environmental Law Review.  

Jerrold Long (Idaho):  Jerry grew up in Rexburg, Idaho.  He is an avid cyclist and outdoorsman and has the best beard in the legal academy.  He also has a Ph.D. in Environmental Studies and writes elegantly about property and land uses issues in the Mountain West.  Currently, Jerry is spearheading the University of Idaho's innovative Natural Resources and Environmental Law Field Course and writing a book about the history of Western Lands. 

Chris Odinet (Southern):  Chris is the foremost professor of Real Estate Transactions in his age cohort.  He's currently wrapping up a two-year fellowship with the American Bar Association’s Section on Real Property, Trust and Estate Law.  His articles have recently appeared in the Washington and Lee Law Review, the Cincinnati Law Review, the Washington University Law Review Commentaries, and the Banking Law Journal.  In addition to property stuff, Chris is also well-versed in commercial law issues.   He is also the person I ask for restaurant recommendations whenever I go to a property conference.

Sally Richardson (Tulane):  Sally is one of the most-cited property law professors under the age of 40.  She's also the biggest LSU Tigers fan I've ever met. Her work touches on both civil and common law, with a particular focus on the balance between an individual's right of ownership and society's desire to use real property efficiently.  She's already the author of a textbook (on community property) and her scholarship has appeared in the Tennessee Law Review, the Houston Law Review, and the American Journal of Comparative Law.

This is an incredible crew and I hope you'll stick around to see where things go.

Jefferson-Jones on Short-Term Rental Arrangements and Home Values

Jamila Jefferson-Jones (UMKC) has posted Can Short-Term Rental Arrangements Increase Home Values?: A Case for Airbnb and Other Home Sharing Arrangements (Cornell Real Estate Review) on SSRN.  Here's the abstract:

The sharing economy or “new economy” has redefined consumption in the housing context in a manner that impacts traditional notions regarding home values and neighborhood integrity. Housing sharing allows owners to share some of the benefits of property ownership -- namely use and enjoyment -- while shifting some of the burdens of ownership -- particularly, the economic burdens. With the advent of the sharing economy, there is a brewing conflict between this new economy and the realities of economic regulation. 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. Many state and local governments, relying on their inherent police powers, regulate short-term housing. In particular, certain land use legislation overtly prohibits occupation by short-term renters. One prominent justification for such prohibitions is the maintenance of property values and neighborhood character.

I argue that, despite short-term housing prohibitions and the underlying policies supporting them, such exchanges can actually help to preserve property values by providing income to homeowners that can be used to offset mortgage and maintenance costs -- in other words, by allowing owners to share the burdens of ownership. Thus, rather than frustrating the goals and purposes for which old economy regulations were designed (e.g., the preservation of property values and neighborhood character), housing exchanges may instead aid in achieving these aims. Specifically, 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.

Policies that curtail short-term rental housing are of a bygone era and are ill-suited to address the modern sharing economy. The number of online platforms designed to link property owners with potential short-term lessees has grown rapidly over the last few years. For instance, Airbnb dot com (“Airbnb”) -- the most well-known of these platforms -- 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.

Sharing and bartering housing resources is not new. Historically, the concept has long existed in the context of lodging purchased on a time- or space-limited basis in inns and boarding houses, rooms for rent, housing cooperatives, and informal arrangements. The catalyst for such sharing has often been the quest for affordability, coupled with housing scarcity. In the contemporary context, we see a home sharing proliferation the catalyst of which is also the scarcity of resources -- both affordable housing itself and the monetary resources with which to maintain home ownership. What is unique to home sharing in the new economy is not the sharing, but rather the way in which such sharing is facilitated by technology and how the use of such technology is causing innovation in sharing to outpace changes in housing regulation.

This Article focuses on the question of whether short-term rental arrangements negatively impact neighborhood character and home values. Part I gives an overview of the character of and justifications for municipal short-term leasing restrictions. Part II examines the Airbnb controversy in New York City. Finally, Part III argues that municipalities may actually be doing themselves a disservice when they prohibit these new economy housing exchanges because they may be missing out on an opportunity to reap enhanced economic benefits from permitting such exchanges.

Bright et al. on The Evolution of "Greener" Leasing Practices in Australia and England

Susan Bright (Oxford), Julia Patrick (Oxford), Ben Thomas (Independent),  Kathryn Janda (Oxford), Esther Bailey (Independent), Timothy Dixon (Reading),  & Sara Wilkinson (University of Technology Sydney) have posted The Evolution of "Greener" Leasing Practices in Australia and England on SSRN.  Here's the abstract:
Improving the environmental performance of the built environment is a ‘super wicked’ problem, lacking a simplistic or straightforward response. This is particularly challenging where space is rented, in part because the relationships between the various owners, users and managers of the space is regulated – at least in a formal sense – through the lease. Traditional leases largely ignore environmental considerations and present barriers to making energy efficient upgrades. Leasing practices are evolving to become greener. Evidence from a Sydney Better Buildings Partnership (BBP) study, Australian leasing experts, a UK commercial lease study and a case-study of a major UK retailer, Marks & Spencer (M&S), suggests an increasing, trend towards green leases in most of these markets and opportunities for improving environmental performance through green leasing. Further research is needed in both countries to understand the impact that greener leasing has on environmental performance of buildings.