PropertyProf Blog

Fear of Affordable Housing

Alana Semuels, writing in the Atlantic, details the history of public housing in New Jersey.  Her focus is on the town of Howell and it's anti-semitic flavored resistance to affordable housing:

The comments started online shortly after this middle-class Republican stronghold in central New Jersey filed a plan to rezone a wooded area to enable the construction of 72 affordable housing units.

There were the usual range of complaints: that the affordable housing would create more traffic, put additional stress on its aging infrastructure, and bring an undesirable element to town.

But, in this case, that undesirable element wasn’t the usual target of affordable-housing opponents: “We do not need this ... This means we are going to have more Jewish families milking the system,” one woman wrote on the Facebook page of Howell Happenings NJ.

“I moved to Howell 15 years ago to get away from garbage. Now the garbage is getting dumped on top of me,” another man wrote. This comment received four likes on the Howell Happenings NJ Facebook page.

There were dozens of others, from Howell residents fearing that a community of Hasidic Jews living in nearby Lakewood, New Jersey, would “take over” Howell, that the new affordable housing units would drag down property values and deplete the town’s coffers.

Salib on Who Owns Street Art

Peter Salib (Chicago - Student) has posted The Law of Banksy: Who Owns Street Art? (Chicago Law Review) on SSRN.  Here's the abstract:

Street Art -- generally, art that is produced on private property not owned by the artist and without permission--has entered the mainstream. Works by such artists as Banksy, Jean-Michel Basquiat, and Shepard Fairey now sell at the world's most prestigious auction houses, fetching prices in the millions. Strangely, however, the law governing street art ownership is entirely undeveloped. The circumstances of street art's creation--often involving artists' clandestine application of their work to the sides of buildings owned by others--render traditional legal paradigms governing ownership intractable. If Banksy paints a valuable mural on the side of my house, who owns it? Me? Banksy? Someone else? American law is currently ill-equipped to answer the question.

This article rigorously investigates the problem of street art ownership. It accounts for the unusual circumstances of street art creation and distribution. It then considers the possible legal regimes for governing street art ownership and comes to a surprising recommendation.

Dickinson on the One-Strike Rule in Housing Evictions

Gerald Dickinson (Pitt) has posted Towards a New Eviction Jurisprudence (Georgetown Journal on Poverty Law Policy) on SSRN.  Here's the abstract:

The One-Strike Rule, contemplated in a model lease provision, has been the primary mechanism employed by Congress to eliminate the “scourge of drugs” in public housing projects. The rule gives public housing authorities (PHA) discretion to evict tenants engaged in drug-related criminal activity and hold the tenant equally liable if a guest or family member engaged in the criminal activity, even if the tenant had no knowledge of the offense. The Supreme Court most notably upheld this policy in 2002 in United States Department of Housing and Urban Development v. Rucker.

Today the wisdom of that rule, which has served as the foundation for PHAs’ eviction policies, has come under attack by recent court decisions in Pennsylvania and North Carolina. In Housing Authority of Pittsburgh v. Somerville, the trial court disrupted the normal state of affairs by denying the eviction of a young, unemployed, single woman, expecting her first child, notwithstanding a prior drug-related conviction, holding that eviction would result in a “serious injustice.” While in Eastern Carolina Regional Housing Authority v. Lofton, a state appellate court found that the eviction of a single mother and her three young children, all innocent bystanders to drug-related criminal activity, would be excessive and shockingly unjust and that eviction would produce an “unconscionable” result.

This Article engages in a normative interpretation of the statutes the courts in Pennsylvania and North Carolina relied upon in denying the eviction of poor tenants, specifically 35 P.S. § 780-157(b) of the Pennsylvania Expedited Eviction of Drug Traffickers Act and § 42-26(a)(2) of the North Carolina General Statutes. The statutes implicitly attack Rucker by authorizing trial courts to deny the eviction of the tenant if the courts are convinced the eviction would result in serious injustices or unconscionable consequences, thus running afoul of the post-Rucker normal state of affairs. This Article argues that the Pennsylvania and North Carolina eviction statutes, and the recent rulings relying on the serious injustice exemption and unconscionability rule, serve as the foundation for what I coin a “new eviction jurisprudence” that gives special consideration to the constitutional protections of property afforded to groups most vulnerable to the One-Strike Rule: households headed by poor women with children.

Paul Krugman Takes on Zoning, Gets Crap From the Left

At the end of November, New York Times columnist Paul Krugman published a piece devoted to gentrification on New York City.  Krugman identifies land use regulations as the main boogeyman behind the poor getting pushing out of New York.  He writes:

As Jason Furman, the chairman of the White House Council of Economic Advisers, recently pointed out, national housing prices have risen much faster than construction costs since the 1990s, and land-use restrictions are the most likely culprit. Yes, this is an issue on which you don’t have to be a conservative to believe that we have too much regulation.

The good news is that this is an issue over which local governments have a lot of influence. New York City can’t do much if anything about soaring inequality of incomes, but it could do a lot to increase the supply of housing, and thereby ensure that the inward migration of the elite doesn’t drive out everyone else.

This column has received a good deal of push back from lefty bloggers.  Alan Mallach's take is more restrained and thoughtful than a lot of other wailing I've read:

Regulation is important, but it’s not the only thing. New York is already a fully developed city, mostly at relatively high densities, and mostly at high prices. That means that land is expensive and hard to assemble, and that the only way to significantly increase production is by building expensive high-rise buildings, which have high construction costs. This is not only true in Manhattan, where at this point it is probably impossible to build anything to sell for less than $1 million or more without subsidy, but even in the farthest reaches of the outer boroughs. Avalon Bay is building a high-rise complex in Sheepshead Bay where they plan to charge $700,000 for a one bedroom apartment. When you learn that their raw land cost was $16.2 million, and their construction costs are probably around $300/ square foot, you can do the math. They won’t be making a huge profit on that unit; a decent profit, to be sure, but not an outrageous one.

[...] I’m not arguing that regulation doesn’t matter. It does, and it matters a great deal. Easygoing regulation means that the average middle-class family in San Antonio, where the median income is about the same as in Brooklyn, can live both well and affordably, something that is increasingly impossible in New York or San Francisco. And if New York City used inclusionary zoning regulations (which Krugman doesn’t mention) to make sure that every one of those units in the pipeline either creates affordable housing or makes a meaningful contribution to a housing trust fund, that would be a good thing. But regulation is only one part of a larger picture, and to treat it as a panacea or a silver bullet, particularly in high-cost, heavily developed areas like New York or San Francisco, does everybody who cares about affordable housing a disservice.

Wahi on The Fundamental Right to Property in the Indian Constitution

Namita Wahi (Harvard - Fellow) has posted The Fundamental Right to Property in the Indian Constitution on SSRN.  Here's the abstract:

The Fundamental Right to Property enjoys the unique distinction of not only being the second most contentious provision in the drafting of the Constitution, but also the most amended provision, and the only fundamental right to be ultimately abolished in 1978. Unlike other rights of life, liberty, and equality that can at least theoretically be conceived as applying equally to all, the especially contentious nature of the right to property arises because the protection of property rights inevitably results in entrenching unequal distributions of existing property entitlements. This chapter narrates the evolution of the fundamental right to property in the Indian Constitution, and outlines the chequered trajectory of its doctrinal development, following the First (1951), Fourth (1955), Seventh (1956), Seventeenth (1964), Twenty-Fourth (1971), Twenty-Fifth (1972), Twenty-Sixth (1972), Twenty-Ninth (1972), Thirty-Fourth (1974) and Thirty-Ninth (1975) constitutional amendments. The Forty Fourth Constitutional Amendment, 1978, deleted Articles 19(1)(f) and 31 from Part III, the chapter on Fundamental Rights in the Constitution. Instead, it inserted Article 300A in a new chapter IV of Part XII of the Constitution, thereby depriving the ‘right to property’ of its ‘fundamental right’ status. However, in the last five years, there have been attempts made judicially to restore the right to its fundamental right status, as it existed before the Forty Fourth amendment. Simultaneously, the requirements of ‘public purpose’ and ‘compensation’ have been strengthened legislatively through the repeal and replacement of the Land Acquisition Act 1894 by the LARR Act 2013. The LARR Act’s amendment by the thrice promulgated LARR Amendment Ordinance within a year of its enactment, and yet the inability of the government to garner parliamentary support to pass the LARR Amendment Bill, 2015, into law, testifies to the intense social and political contestation around the contours of the right to property, both as a legal and constitutional right.

The paper argues that the trajectory of the right to property in the Constitution, as seen from the drafting of the original constitutional property clause, and its evolution through judicial interpretation, legislation, and constitutional amendment, demonstrates the Indian State’s continual attempts to reshape property relations in society to achieve its goals of economic development and social redistribution. Each iteration of the property clause favoured property rights of certain groups and weakened those of others and was the product of intense contestation between competing groups that used both the legislature and the judiciary to further their interests. Concomitantly, lurking behind the development of the Supreme Court’s doctrinal jurisprudence is the Court’s fear of arbitrariness of State action. Almost all of the property cases also involved a challenge on grounds of the equality guarantee in Article 14, and in a majority of these cases, the impugned law was invalidated for violating the right to equality and not the right to property.

Lee on Public Participation in Land Use Decisions in Singapore

Jack Tsen-Ta Lee (Singapore Management University) has posted We Built This City: Public Participation in Land Use Decisions in Singapore (Asian Journal of Comparative Law) on SSRN.  Here's the abstract:

This article considers the extent to which the legal framework for making land use decisions in Singapore allows for public participation. It examines the issue from two angles: the creation and preservation of the built environment, and the transient use of public space. The first angle is discussed primarily from a heritage law viewpoint, focusing on planning law, compulsory acquisition law, and the legal regime for creating national monuments. As for the second angle, the article looks at how the use of common spaces for assemblies and processions is regulated. The foregoing are examined in the context of Edward Soja’s assertion in Seeking Spatial Justice (2010) that the equitable distribution of resources, services and access in cities is an important right.

Map of the Day: The World's Favorite Porn Categories

Pornhub, the largest pornography site on the Internet, has just released its annual analysis of global viewing habits.  The accompanying article includes a ton of weird information and is certainly worth a gander if you're the kind of person that enjoys the seedier side of humanity.  There's no naughty pictures in the piece, but I probably wouldn't recommend reading it at work. Here's the link.  Most importantly for this site, Pornhub published a map that shows each country's favorite porn category.  I'm putting it below the jump, since the map includes some off-color terms.  In case you were wondering, Wikipedia defines "Hentai" as a subgenre of the Japanese cartoons, characterized by overtly sexualized characters and sexually explicit images and plots.

Continue reading

Rothstein & Rothstein on the How Genetics Might Affect Real Property Rights

Mark Rothstein (Louisville - Bioethics) and Laura Rothstein (Louisville) have posted How Genetics Might Affect Real Property Rights (Journal of Law, Medicine and Ethics) on SSRN.  Here's the abstract:

New developments in genetics could affect a variety of real property rights. Mortgage lenders, mortgage insurers, real estate sellers, senior living centers, retirement communities, or other parties in residential real estate transactions begin requiring predictive genetic information as part of the application process. One likely use would be by retirement communities to learn an individual's genetic risk for Alzheimer's disease. The federal Fair Housing Act prohibits discrimination based on disability, but it is not clear that it would apply to genetic risk assessments. Only California law explicitly applies to this situation and there have been no reported cases.

McLaughlin on Valuing Conservation Easements

Nancy McLaughlin (Utah) has posted Conservation Easements and the Valuation Conundrum (Florida Tax Review) on SSRN.  Here's the abstract:

For more than fifty years, taxpayers have been able to claim a federal charitable income tax deduction under Internal Revenue Code § 170(h) for the donation of a conservation easement or a façade easement. For just as long, the deduction has been subject to abuse, including valuation abuse. Dismayed by the expenditure of significant judicial and administrative resources to combat abuse in the easement donation context, the Treasury Department recently proposed reforms, including reforms to address valuation abuse. The reforms were proposed in somewhat of an analytical vacuum, however, because there has been no comprehensive analysis of the easement valuation case law. This article fills that void. It examines the easement valuation case law and discusses the most common methods by which taxpayers or, more precisely, their appraisers overvalue easements. It also proposes alternative reforms informed by the lessons learned from the case law. Concise summaries of the relevant facts and holdings of the cases are included in appendices.

Buyers Often Shun Houses That Were Crime Scenes

The Pittsburgh Post-Gazette has a lengthy piece about the reality of selling homes that were the site of grisly crimes: 

When a murder — or even a natural death — occurs inside a home, it can traumatize a neighborhood. Beyond that, it can create a significant and understandable challenge when it comes time to sell.

The effect is exacerbated when the death is a highly publicized event. Not only is the home itself affected but, according to personal finance comparison website Finder.com, homes within a four-block radius can lose tens of thousands of dollars in value up to a year after the homicide takes place. It’s a delicate issue for both home buyers and sellers.

Finder.com estimates the U.S. housing market lost $2.3 billion in value in 2014 due to homicides. Pennsylvania homes with a median value of $150,000 lost an average of $5,909 due to 609 homicides that year. The Pittsburgh area, which had 71 homicides in 2014, is estimated to have lost an average $4,646 in home value in areas where homicides occurred.

Huber on The Fair Market Value of Public Resources

Bruce Huber (Notre Dame) has posted The Fair Market Value of Public Resources (California Law Review) on SSRN.  Here's the abstract:

Government agencies and officials are regularly criticized for selling public assets at a loss. Such criticisms arise in a host of contexts, ranging from sales of real estate and natural resources to sales involving intangibles, such as the right to broadcast over the airwaves or to operate a toll road or a set of parking meters. Underpriced resource sales prompt concerns that a small set of private entities are unjustly enriched by transactions that should properly benefit the public as a whole.

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars’ worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more difficult to implement and enforce. This Article analyzes the various forces that bear on public resource transactions and details the problems that continue to plague these transactions, explaining why federal institutions are commonly unable to satisfy the fair market value standard. It argues that natural resource law should invoke procedural safeguards to protect against the undue influence of incumbent resource users and assure the public a fair return on resource sales. In so doing, it sheds light on how public institutions deal in the marketplace and how public ownership affects the value of property.

Kochan on Marijuana-Related Land Use Con

Donald Kochan (Chapman) has posted Incumbent Landscapes, Disruptive Uses: Perspectives on Marijuana-Related Land Use Control (Journal of Property Law) on SSRN.  Here's the abstract:

The story behind the move toward marijuana’s legality is a story of disruptive forces to the incumbent legal and physical landscape. It affects incumbent markets, incumbent places, the incumbent regulatory structure, and the legal system in general which must mediate the battles involving the push for relaxation of illegality and adaptation to accepting new marijuana-related land uses, against efforts toward entrenchment, resilience, and resistance to that disruption.

This Article is entirely agnostic on the issue of whether we should or should not decriminalize, legalize, or otherwise increase legal tolerance for marijuana or any other drugs. Nonetheless, we must grapple with the fact that many jurisdictions are embracing a type of “legality innovation” regarding marijuana. I define “legality innovation” as that effect which begins with the change in law that leads to the development of the lawful relevance of, lawful business regarding, and legal use for a newly-legal product, the successful deployment of which depends on the relative acceptance of the general public which must provide a venue for its operations along with the relative change in the consuming public’s attitudes as a result of the introduction of legality.

Marijuana-related land uses are and will be controversial. Regulatory responses, neighborhood disputes, permit battles, and opposition coalitions are all predictable both as a matter of logical analysis in light of legal standards but also, very importantly, due to the lessons of history with similarly-situated, precursor land uses like liquor stores, adult entertainment, bars, nightclubs, massage parlors, and the like leading the way. The Article also discusses the role of incumbent interests groups in shaping the new marijuana-related regulatory structure, including revealing Baptist and bootlegger coalitions that exist to oppose relaxation of marijuana laws and thwart land use successes of the marijuana industry in order to maintain their incumbent value or profit position. Finally, the Article engages with the growing literature in the social sciences on place and space, examining how the spaces and places we inhabit and in which we conduct our business and social affairs are necessarily impacted whenever legality innovations like we are seeing with marijuana work to disrupt the incumbent landscape.