PropertyProf Blog

California to Consider Legislation to Aid Widowed Spouses Keep their Homes

(Photo Credit: HousingWire)

Mortgage servicers are not known to be the easiest folks to work with--particularly during the height of the housing crisis. Stories abound of situations where distressed homeowners found it difficult if not impossible to actually get someone on the phone who actually had the power to authorize a loan work-out or forbearance, and others where borrowers were outright harassed by their servicers.

Last April, Forbes reported that a group of California housing advocates argued that, despite the state's 2012 Homeowners' Bill of Rights, many widowed homeowners found it impossible to deal with their home loan's mortgage servicer after their spouse's death:

Despite the strong protections enacted under HBOR, family members who want to speak with their mortgage servicers after the death of a loved one are still hitting a brick wall. In some cases, a family member may be on the title to the home, but aren’t on the mortgage, and servicers refuse to speak to them and instead insist on speaking with the deceased borrower who was listed on the mortgage. As a result, homeowners are facing red-tape, mixed messages, unreasonable obstacles, and unnecessary foreclosures.

Mortgage servicers have argued that protections for homeowners created by HBOR do not extend to widowed homeowners and other surviving heirs who have a legal interest in the home but who aren’t listed on a mortgage. Even in cases where a servicer will speak with a surviving family member, homeowners can be caught in an endless cycle if they try to seek a loan modification as a result of their reduced income after the death of a loved one. Servicers won’t consider them for a loan modification until they assume the mortgage. But, the servicers won’t let them assume the mortgage unless they demonstrate that they can afford it. As a result, mortgage payments are missed or they are not accepted by the servicer, fees rack up, and servicers push grieving family members into foreclosure.

Now it looks like these housing advocates may be making some headway by amending the California Homeowners' Bill of Rights to add a survivor provision. In doing so, it would force mortgage servicers to communicate and deal directly with widowed/non-borrower homeowners. The HousingWire reports:

A new bill introduced in the California State Senate would establish a Homeowner Survivor Bill of Rights, which is designed to help widowed spouses and children stay in their homes after the primary mortgage holder passes away.

The bill closes a loophole in California law that fails to provide surviving spouses and children important protections against foreclosure that are available to other homeowners, the offices of California State Senators Mark Leno and Cathleen Galgiani said this week. The new bill, Senate Bill 1150, “clarifies the responsibilities” of a mortgage lender when a borrower dies and passes the home along to a survivor who wishes to assume the home loan, the Senators said.

According to the Senators’ statement, the legislation, if passed, would ensure that heirs receive “accurate information” about loan assumption and foreclosure prevention programs. The bill would also give survivors a single point of contact with the lender and the ability to simultaneously apply for loan assumption and modification.

The bill will be heard this spring in committee. It will be interesting to see where this goes. A copy of the bill can be viewed here. There are a number of consumer/homeowner protections in the legislation (delay periods, notice provisions--required to be in so less than five different languages--access to housing counseling resources, among others). The thing that immediately comes to mind, however, is whether this will actually help these widowed homeowners avoid foreclosure if they cannot meet the lender's underwriting criteria for a new loan. Assumedly a lender would rather make a new loan than foreclose on the property, but might Dodd-Frank's new underwriting requirements tie their hands if the surviving spouse has a weak financial position? While the bill might certainly help open lines of communication, it might only delay the enviable (at least in certain cases). Time will tell.

Water Quality, Trespass, and Ranching in Wyoming

(Wyoming's historic Crookston Ranch -- photo courtesy the Bureau of Land Management)

The U.S. Supreme Court routinely characterizes the right to exclude as "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Many law students first consider the meaning of the right to exclude in Jacque v. Steenberg Homes. The question in that case was whether punitive damages would be allowed in a trespass case where there were no actual damages. The Wisconsin Supreme Court determined that a "a right is hollow if the legal system provides insufficient means to protect it," and allowed for punitive damages.

This same question arose recently in Wyoming, in the civil trespass action Frank Ranches v. Jonathan Ratner. Mr. Ratner works for the Western Watersheds Project as the Director for Wyoming, Utah, and Colorado. One of WWP's broader goals is to eliminate ranching on public lands. They pursue that goal, in part, by documenting water quality violations for use in enforcement actions. Mr. Ratner was taking water samples when he allegedly trespassed on various ranch properties. It was this case that led, in part at least, to Wyoming's infamous "data trespass" law, passed in early 2015. That law, currently being challenged by the Western Watersheds Project, criminalizes data collection on "open lands" without express permission. The law does not define "open lands," raising fears that it would be used against data collectors on public lands as well as private.

In the civil action against Mr. Ratner, the ranchers did not claim any damages--Mr. Ratner was using existing roads on the ranches to access streams. They did claim punitive damages. But earlier this month, Judge Norman Young of Wyoming's 9th Judicial District determined that punitive damages would not be available to the ranchers. The trespass action itself would continue to trial however.

In some ways, the Wyoming case mirrors Jacque v. Steenberg homes. In neither case did the plaintiffs claim more than nominal damages. And in both cases, the district courts determined that settled law prohibited punitive damages where only nominal damages existed. But the obvious similarities end there. In Jacque v. Steenberg homes, the trespasser had been told specifically and publicly not to cross the Jacque's land; another option was somewhat readily available. In the Frank Ranches case, Mr. Ratner argues that he used open, "public" roads that happened to cross private lands, and that he was never specifically informed not to use them. In fact, one of Mr. Ratner's defenses appears to be based on a "permissive use" concept, i.e., that there was implied permission to use the private lands as he did.

The most interesting part of this conflict is not the punitive damages question, but rather the broader questions of when, where,  and how citizen scientists and activists can record or document violations of environmental or other laws. But we'll have to wait a bit longer to watch that issue work itself out.

In the Frank Ranches case, Mr. Ratner and WWP are represented by Associate Professor Justin Pidot of the University of Denver Sturm College of Law. The Wyoming Ranchers are represented by Karen Budd-Falen, who should be familiar to anyone interested in public lands law and management.

 

 

Lehavi on Residential Communities in a Heterogeneous Society

Amnon Lehavi (ICH - Radzyner) has posted Residential Communities in a Heterogeneous Society: The Case of Israel (Book Chapter) on SSRN.  Here's the abstract:

Israel presents an intriguing case study for exploring the role of communities and private forms of spatial organization in urban governance. Unlike most western countries, the overwhelming majority of land in Israel is publicly-owned, meaning that the validation of community exclusionary practices would regularly require affirmative governmental backing. The evolution of urban and rural forms of settlement since the early days of Zionism shows how some types of private associations enjoyed such validation due to political clout. Contemporary Israel is much more heterogeneous and fragmented both ethnically and ideologically. This poses new challenges for designing the regulatory and legal framework of residential communities.

Squatter Stories

Like the law of finders, adverse possession is fun to teach for many reasons. Students easily grasp the notion of someone squatting on property and can deduce the equities in the situations. Everyone will recall Tom Merrill’s (Columbia) oft-cited article, Property Rules, Liability Rules, and Adverse Possession, describing the theories behind adverse possession.  With a little prodding, students can usually come up with many of those rationales.

Adverse possession is also fun because it is easy to bring in lots of modern day stories of adverse possessors. These stories are all over the news and help students connect in class concepts with real world events, sometimes even in their own back yard. Different news stories evoke different sympathies for the adverse possessor/squatter or the true owners.

For those of you looking for current stories, here are a handful of news articles from just the past three months for you to consider.

Washitah Nation Squatters in New Orleans 

Bristol Squatter in an Abandoned Pub 

House Previously Occupied by Verbose Squatter on Sale for $1.5M

Safety Concerns for Squatters in the Bronx

Discussing squatting or adversely possessing real property also allows students to think about squatting on other forms of property, such as personal property or, more trendy for the millennial generation, virtual property. Cybersquatting is certainly something that 20-somethings will quickly grasp and apply to their everyday lives. And this allows for the ever-fun discussion of cybersquatting in presidential politics, which there has been no shortage of this campaign season!

With that in mind, next up in my blogging is a look at what the presidential candidates have said regarding property laws, so stay tuned and see what each of the remaining candidates has said (at least publicly) about different aspects of property law.

Property Lateral Moves

Over at The Faculty Lounge, Dan Filler has announced that Property Professors Thomas Mitchell and Lisa Alexander of the University of Wisconsin School of Law have accepted positions at Texas A&M Law. That's a big, big coup for A&M and Dean Morriss.  Thomas and Lisa are both terrific scholars, popular teachers, and really nice people.  Dan Filler writes, "In addition to their appointments as professors on the law faculty, Mitchell has a joint appointment with Texas A&M’s Agricultural Economics Department within A&M’s College of Agriculture and Life Sciences.  Alexander has a joint appointment with Texas A&M’s Department of Landscape Architecture & Urban Planning.  And they have been named co-directors of the law school's new center focusing on land, housing, and community development issues." 

The other big lateral news is that Matt Parlow of Marquette University has accepted the deanship at Chapman.  Parlow, a native of Southern California, served on the Chapman faculty from 2005 to 2008.  At Marquette, he's been a whirlwind of energy as the associate dean for academic affairs.  This hire looks like an excellent match between  school and  dean candidate, and I expect Parlow's tenure will be an enormously successful one. 

van der Walt & Viljoen on the Relationship Between Property, Land Rights and Social Welfare

Andre van der Walt (Stellenbosch) & Sue Viljoen (University of South Africa) have posted The Constitutional Mandate for Social Welfare – Systemic Differences and Links between Property, Land Rights and Housing Rights (Potchefstroom Law Journal) on SSRN.  Here's the abstract:

Our purpose in this article is to argue that, as far as the constitutional promotion and protection of social welfare is concerned, there are significant theoretical and systemic differences between property, land rights and housing rights. Our argument is shaped by the fact that these three sets of rights are recognised and protected separately in the Constitution of the Republic of South Africa, 1996, but we argue that the theoretical differences go beyond variations between constitutions and bills of rights from different traditions and time periods. In our view, there are sound theoretical, and therefore also systemic, reasons why it is necessary to at least keep the differences between property, land rights and housing rights in mind when analysing, interpreting and applying any of these rights in a specific constitutional text. Above all, we argue that the reduction of housing rights to just another category of property rights might well reduce or even erode the special social, historical and constitutional value and meaning of housing rights.

We first consider theoretical arguments concerning the relationship between property, land rights and social welfare. In view of the theoretical analysis we proceed to consider the constitutional nature and status of property, land rights and housing rights in the South African context. We argue that both land rights (in the form of land redistribution and improved tenure security) and housing rights (in the form of the right of access to adequate housing) should be seen as discrete constitutional rights that stand on their own constitutional foundations and that they do not need to be protected as property rights. On the other hand, they are not fundamentally circumscribed or opposed by property rights either.

Instead, the Constitution requires a new, typically constitutional methodology that gives full recognition and effect to all three sets of rights, each in its proper place. Seen in this perspective, property is neither the guardian nor the enemy of social welfare. Nevertheless, the purpose of the property clause in general cannot be isolated from social welfare concerns that relate to improved access to land and housing rights, nor from the constitutional imperative to provide stronger land and housing rights. Important connections exist between these divergent constitutional imperatives that should be acknowledged to ensure the efficient realisation of social welfare concerns.

Malheur, Western Lands, and the Bundle of Sticks

The University of Florida's Christine Klein thinks that the Malheur standoff shows some of the limitations of thinking about property as a bundle of sticks:

To make sense of the passion behind the Malheur protest, one must understand that the federal government has long recognized—and even encouraged—certain private uses of public lands, including livestock grazing, logging, and mining. For example, the federal government has granted numerous permits that allow private ranchers to graze their livestock at highly subsidized rates on federal lands in the area of the Malheur Refuge and throughout the west. Such permits clearly fall far short of ownership rights. And yet, the ranchers have developed such an attachment to the land (both economic and personal) that they believe the government is somehow interfering with their rights. But ranchers are not the only group with such an attachment to the Refuge. In its management of the Malheur Refuge, the Fish and Wildlife Service invites the participation of a wide range of stakeholders, including hunters, fishers, wildlife photographers, the Burns Paiute Indian Tribe, the Harney County Historical Society, and the Portland Audubon Society, all of whom claim some connection to the land.

Such a complex tangle illustrates the important role public property plays in our society. It also suggests that the law’s traditional bundle-of-sticks metaphor may lack sufficient force to unravel the multiple layers of controversies like the Malheur occupation. Instead, perhaps we should view property as a “web of interests” (as suggested by Professor Tony Arnold in his article The Reconstitution of Property: Property as a Web of Interests. The web metaphor views property as an interconnected set of relationships among people with respect to a particular piece of property, such as the Refuge (rather than the narrower focus of the sticks metaphor). At the very least, the web imagery raises awareness that numerous parties can hold legal rights (and also powerful extra-legal interests) in a single piece of property, whether public or private.

Serkin on Penn Central

Christopher Serkin (Vanderbilt) has posted Penn Central Take Two on SSRN.  Here's the abstract:

Penn Central v. New York is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest — a transferable development right (TDR) — that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over 40 years, are the subject of new takings litigation. According to a newly filed complaint, the TDRs that saved Grand Central have themselves been taken by the government, which allegedly wiped out their value by permissively upzoning the neighboring property. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property — like TDRs and pollution credits, for example — is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Essay ultimately argues that the creation of regulatory property should not prevent policy changes far into the future.

Local Non-Profits, Politicos, Banks, and Feds Join Forces to Address Detroit's Housing Crisis

(Photo Credit: Reuters: "A vacant, boarded up house is seen in the once thriving Brush Park neighborhood with the downtown Detroit skyline behind it in Detroit, Michigan March 3, 2013.")

It's no surprise that the City of Detroit still suffers from serious housing problems. In July 2013 the city filed for the rare municipal bankruptcy under Chapter 9, with its total amount of debt nearing $20 billion. After a long and contentious battle in state and federal court, Detroit exited bankruptcy proceedings a changed city, with creditors being forced to take a loss of $7 billion. The reverberations of this tragedy are still being felt, as the city struggles with high unemployment, population loss, and a large number of abandoned homes and vacant lots. Economists at Zillow have noted that despite a housing recovery in many cities across the country, Detroit remains stuck:

Detroit’s home values fell more than 50% from their December 2005 peak, and have only increased about 5% from their trough. As a result, the share of homeowners that are underwater, owing more on their home than it is worth – remains such a huge issue in the city. The worst part is that the future doesn't look any better for Detroit’s underwater homeowners.

[Aaron Terrazas, senior economist at Zillow,] explained that of the traditional ways for homeowner to get clear of negative equity, the only one in which the homeowner does not eventually lose the home or sell without profit is to simply wait for home values to rise. Except home values are not growing or expected to grow in Detroit.

“Detroit is one of seven of America’s largest 250 cities in which home values are expected to fall through Q1 2016. And continuing its string of dubious superlatives, Detroit home values are expected to fall the most – by far – of any of these seven cities,” said Terrazas.

To the point about negative equity, one of the chief problems that city leaders and community groups raise is a lack of financing options for those individuals seeking to rehabilitate the area's housing stock. Because there is so little housing activity in the area, appraisals of homes conducted during the loan application process come in very low due to the fact there are few if any comparables. Therefore lenders will not/cannot advance funds in an amount sufficient to not only purchase the property but also make needed renovations.

That's where local leaders, philanthropic groups, and the Obama administration step in. 

Detroit's mayor, the White House's Detroit Federal Working Group, the Clinton Global Initiative, and area banks and nonprofits recently announced a new and innovative mortgage finance program called the Detroit Home Mortgage Initiative. The folks over at the HousingWire explain:

Under Detroit Home Mortgage, qualifying borrowers receive a first mortgage for the appraised value of their house (less their 3.5% down payment), and a second mortgage up to $75,000 to fill the gap between the appraised value and the sale price and/or the cost of renovations.

To use the program, borrowers must complete classes in homebuyer education and the financial risks involved in borrowing more than the appraised value of a home.

In addition, all participating banks will offer Detroit Home Mortgages at the same low interest rates with no bank fees. Plus, the Kresge Foundation will provide a $6 million guarantee on the second mortgage pool to protect borrowers in extreme cases of hardship that require a homeowner to sell his or her home.

I think this program provides an interesting case study for how private lenders, the government, and the non-profit sector can come together to work toward solving seemingly intractable housing finance problems. Essentially, the second mortgage serves a similar function to a home equity line of credit (HELOC), but instead of being secured by the borrower's equity in the home, it's secured by a sort of insurance program (in this case, provided by the Kresge Foundation). Some of these secondary loans can be up to 150% of the borrower's loan-to-value ratio and the interest rates are low with little to no closing costs. It makes me wonder, however, what role meaningful underwriting will play in this process. Admittedly, section 1029.43 of the Dodd-Frank act exempts most HELOCs from the law's mandatory underwriting requirements (the so-called "Ability to Repay" analysis), but does financial literacy serve as a sufficient substitute? It will be interesting to see how this unique program plays out and if it can achieve the policy goal of increasing homeowner equity and lifting home prices in Detroit.

Lavoie on Restrain Alienation of Indigenous Lands

Malcolm Lavoie (Alberta) has posted Why Restrain Alienation of Indigenous Lands? on SSRN.  Here's the abstract:

This paper provides the first comprehensive account of the rule against alienating indigenous lands to private parties, that is to say, parties other than the government. This rule exists, in common law and statutory forms, across common law settler societies, including the United States, Canada, Australia, and New Zealand. The author provides an historical account of the development of the rule, outlining the ways in which the rule was seen to be justified across different time periods. The paper argues that none of the historical bases for the rule, which range from considerations of military strategy to outright racial paternalism, can provide an adequate justification for the rule in the present day. After providing an account of the current legal regimes in these four countries, the author sets out a contemporary justification for the rule, rooted in the collective autonomy and cultural integrity of indigenous groups. This is approached primarily from two angles. In economic or welfare-oriented terms, alienations of parts of a community's land base may impose a cost on members of the group by reducing the group's capacity to preserve its culture and way of life, goods which can only be enjoyed in collective form. Alternatively, one can take collective autonomy and cultural preservation as goods not fully reducible to welfare. Erosions of the group's land base impinge on its ability to exercise collective autonomy, especially if governance jurisdiction is linked to land ownership. The paper also considers the relevance of arguments based on indigenous sovereignty and distinctive indigenous approaches to land. Finally, the author outlines a set of promising alternative institutional arrangements that might reconcile the interests at stake in ways other than through a rigid prohibition on alienation to private parties.

Malheur as a property law exam question

According to a document filed this week in the criminal case against the former occupants of the Malheur Wildlife Refuge, the whole thing was really just a misunderstanding--they were just trying to adversely possess the refuge to force a trial that would "uncloud" the title.

Unfortunately, I'm not sure this works as a fact pattern for a law school final. Mostly because I'm not sure which court would have jurisdiction over "works of the devil."

http://www.sltrib.com/news/3550366-155/shawna-cox-cites-works-of-the

Pils on Resisting Dignity Takings in China

Eva Pils (King's College London) has posted Resisting Dignity Takings in China (Law & Social Inquiry) on SSRN.  Here's the abstract:

In the course of urbanization in the People’s Republic of China, tens of millions of citizens have experienced expropriations of collectively owned land, expropriations of privately owned buildings, and evictions from urban land in state ownership. Summarily characterising these measures as takings, I argue, first, that some takings observed have denied evictees dignity, understood as respect for their intrinsic moral worth and moral autonomy, in addition to dispossessing them of their land and homes. Second, in dignity takings cases, monetary compensation and resettlement schemes may fail to reflect the harm done to evictees, by framing disputes over takings as (forced) economic bargains. Third, some victims unable to seek redress through judicial avenues have been driven into extrajudicial protest and resistance. In some cases, resistance can be restorative of dignity; but, where repressive state responses to resistance prevent this potential from being realised, the injustice of dignity takings can be further aggravated.

Fraley on The Political Rhetoric of Property and Natural Resource Ownership

Jill Fraley (Washington & Lee) has posted The Political Rhetoric of Property and Natural Resource Ownership: A Meditation on Luck, Taxation and Appalachia on SSRN.  Here's the abstract:

While our legal system embraces a myriad of forms of property, our political rhetoric of property narrowly speaks of individual ownership and control, fostering a strong dichotomy between public and private property. This rhetoric has also led us to embrace a "luck system" division of our natural resource wealth and to refrain from significantly taxing these resources. I compare alternative methods of natural resource ownership in democracies and suggest that poverty in natural resource rich areas such as Appalachia can only be addressed by changes in taxation of natural resource wealth. Addressing the notion of personal-identity-connected-with-property as a traditional objection to changes in property law structures, I suggest that Appalachia offers a unique test case due to the development of a strong regional identity in the mountains.

Scalia's Property Law Legacy

(Photo Credit: Mother Jones)

Professor Ilya Somin (George Mason) just published a piece in The Washington Post about Justice Scalia's role in strengthening the protection of property rights. In honor of the late conservative giant of the U.S. Supreme Court, here's an excerpt from the article:

When Antonin Scalia joined the Supreme Court in 1986, property rights were definitely the “poor relation” of constitutional law. Most judges, including even many conservatives, believed that the courts should largely stay out of property rights issues. Justice Scalia did much to change that. During his thirty years on the Court, he helped lead a revival of judicial protection for constitutional property rights. But he also missed a valuable opportunity to link that revival to the originalist approach to constitutional interpretation that he forcefully advocated on other issues.

Beginning in the late 1980s, the Supreme Court issued a series of decisions that strengthened judicial protection for property rights under the Takings Clause of the Fifth Amendment. For a long time, the Court had been unwilling to rule that any but the most blatantly severe regulatory restrictions on property rights qualified as “takings” that require “just compensation” under the Amendment. Justice Scalia authored two important decisions that helped reverse that trend. In Nollan v. California Coastal Commission (1987), he wrote an opinion restricting government’s power to force landowners to allow outsiders to use their property without compensating them. In Lucas v. South Carolina Coastal Council (1992), Scalia’s majority opinion ruled that a regulation that completely wipes out all economically valuable uses of an owner’s land automatically qualifies as a taking. Both rulings were important regulatory takings milestones. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, Scalia wrote an important plurality opinion concluding that judicial rulings can sometimes constitute takings.

Scalia also joined majority opinions written by other justices in several other decisions strengthening protection for property rights by expanding the range of regulations that qualify as takings, culminating in Koontz v. St. Johns River Water Management District (2013), the most important Supreme Court victory for property rights in many years. In Kelo v. City of New London (2005), Scalia and three other justices sought to revive judicial enforcement of the Fifth Amendment’s requirement that the government may only take private property for a “public use.” Justice Sandra Day O’Connor’s dissent, which Scalia joined, forcefully argued against the then-dominant view that virtually any potential public benefit qualifies as a “public use,” including the prospect of “economic development” by the new private owner of the condemned property. O’Connor’s dissent and the public debate triggered by Kelo shattered the previous seeming consensus in favor of an ultrabroad definition of “public use.” In later years, Scalia twice publicly called on the Court to overrule Kelo.

Public Rights in the Private Western Landscape

This past weekend, weather and stream flows cooperated enough that I could justify spending a day chasing steelhead. The high winter flows do challenge my already limited angling skills, so I spent the day searching for any kind of structure or rocks that could make the river smaller and more approachable—at least from a fly fishing perspective—and give me a slightly greater than zero chance of finding a fish. I finally found what I was looking for, immediately behind a sign declaring “Private Property.”

Two characteristics largely define the Interior West—public lands and aridity. This combination makes for some complicated land use conflicts. In an arid environment, both people and animals congregate on the same land—land near water—and the public lands landscape affects our ability to disperse by limiting land available for human settlement. Thus, despite the millions of acres of public lands in the West, much of the land use conflict occurs not on public lands but within the private landscape where we congregate.

Private western lands are private precisely because they were the most productive or attractive, and in many ways they provide the best wildlife habitat or ecological services. In some cases, they also provide the best recreational opportunities. While the public’s perception of the Interior West might focus on federal lands issues, the private lands are an increasingly significant source of both conflict and opportunity.

And lost in the stories of the West’s public lands are the thousands of examples of private landowners not only protecting or restoring their land, but also allowing the public to hunt, fish, and recreate on private property.

In the past year, while wandering around Idaho, I have squeezed through gates, walked across farm fields, followed “secret” trails below cabins, and parked along private logging roads. In each case, I was crossing or using private property to find places to fish. And in each case, I was doing so with permission of the private landowner. The two photos at the top of this essay were taken on neighboring parcels near a small stream just southwest of Yellowstone National Park—I respected the requests of both and enjoyed a memorable day of fishing with my brother. I have also spent literally hundreds of hours running, hiking, and mountain biking on publicly-accessible private forest lands near Moscow, Idaho.

In one sense, surprisingly, this notion of public “rights” in private places is embedded within western culture. The state of Montana guarantees all residents the right to use any stream that is subject to recreational uses, regardless of the ownership of underlying lands. Idaho is slightly less permissive, in a formal if not practical sense, providing that all streams capable of floating a six-inch diameter log or being “navigated by oar or motor propelled small craft” is a public highway available for fishing, boating, or other recreational purposes. Somewhat unexpectedly, Colorado—despite being arguably more progressive in some areas than other western states—has what might be the most restrictive stream access regime, potentially allowing private landowners to completely prohibit anyone from passing down “non-navigable” streams, whether they touch the bottom or banks or not (this might be an understatement, but the issue remains somewhat contested in Colorado).

These examples might seem minor, parochial, or insignificant in the broader public lands context. But two of the greatest conservation successes in the West were the result of private landowners acting to protect public rights. When people park along the roadside at the Cathedral Group viewpoint in Grand Teton National Park, what they are viewing—the Grand Teton and neighboring mountains—was originally protected by an Act of Congress in 1929. But the land they are standing on where most visitors spend most of their time, down in the valley floor, was quietly and somewhat secretly purchased by John D. Rockefeller, Jr. and later transferred to the federal government (with some significant opposition) to expand the park. Across the Tetons in Idaho, the most famous stretch of a world famous trout steam—the Railroad Ranch reach of the Henrys Fork—flows through the old hunting and fishing retreat of the Harriman and Guggenheim families. In 1977, Averell and Roland Harriman donated the 11,000-acre ranch to the state of Idaho for use as a state park, providing for permanent public access to one of the world’s great fly-fishing destinations.

These stories, and my own experiences, came to mind this week when I received a call from a researcher investigating how to manage amenity-driven population growth in the rural West. She asked if I had any ideas for tools that would work to balance private and public interests, and my immediate (and admittedly cynical) reaction was that nothing would work—not until some fundamental change occurred in how the rural West perceives private property.

But immediately upon saying that, I thought of the “private property” sign I encountered while chasing steelhead. The bottom of the sign contained two additional admonitions. Not the expected “survivors will be prosecuted,” but rather the following: “please clean up after yourself” and “48 hour maximum stay.” This sign, on a private ranch at the end of a quiet, bumpy dirt road next to a famous steelhead stream, was a welcome sign.

Stories of private landowners offering public access to their lands might be more common outside of the western United States (in Wisconsin, for example, the state claims 25,000 miles of groomed snowmobile trails open to the public, most of them on private lands). But in the West, the stories of private landowners too often lean the other direction, focusing on those that seek to exclude rather than share. They thus overlook the fact that there are also stories of western landowners who have already accepted that cooperation—even with respect to their private lands—should be a fundamental characteristic of the rural West.

These are small stories, to be sure, but they are a confirmation that in some places in the rural West, different perspectives and attitudes are emerging (or in fact, were always there) on the relative rights of the public and private with respect to our land. And those different attitudes might allow for new approaches to developing the proverbial “society to match the scenery,” as long as we are willing to recognize them. At a time when stories of western lands are focused on the selfishness of a few, we should acknowledge that these stories of sharing are just as common.

And so taking advantage of this one example last Saturday, I walked past the private property sign to where I knew (ok, hoped) a steelhead would be waiting—a steelhead that would not be waiting for me on public land.

 

Seto on A Forced Labor Theory of Property and Taxation

Theodore Seto (Loyola - LA) has posted A Forced Labor Theory of Property and Taxation (Book Chapter)on SSRN.  Here's the abstract:

One of the great accomplishments of civilization is to force its members to work and save more than they otherwise might. It does this, first and foremost, through property law, which restricts the access of ordinary members to the necessities of life unless they work. In exchange, civilization facilitates the accumulation of social capital, making work more productive and life ultimately more pleasant. Property deprives humans of their natural liberty to hunt and gather. Taxation permits civilization to make payment for this deprivation and justify the resulting forced labor. This is civilization’s grand bargain.

The foregoing theory, if true, has at least two important implications.

First, in Anarchy, State, and Utopia, Robert Nozick famously asserts that “[s]eizing the results of someone’s labor [e.g., taxing them] is equivalent to seizing hours from him and directing him to carry on various activities.” This, he claims, is illegitimate. He intends, of course, to apply this claim only to explicit taxation. But to the extent my theory is true, he must perforce assert that the grand bargain upon which civilization is based is itself illegitimate. I assert, to the contrary, that the uneven distribution of property rights without the creation of social capital is theft, and that taxation, explicit or implicit, facilitates the creation of such capital.

Second, optimal tax theory is based in part on the assumption that the amount members would work and save in the absence of tax maximizes preference satisfaction and therefore welfare. To the extent tax distorts such choices, the argument goes, it is welfare-reducing. But taking only half of the grand bargain as one’s baseline is intellectually incoherent. It is the essence of that bargain to change mankind’s natural preferences with respect to work and savings. My theory, if true, implies, among other things, that: (1) lump sum taxation is not welfare-maximizing, (2) taking distributive consequences into account in structuring non-tax law is not necessarily welfare-reducing, (3) income from capital should be taxed at the same or higher rates as income from labor and may be so taxed without reducing investment in social capital, and (4) optimal tax theory claims founded on the assumption that taxation is inherently distortive – for example, Harberger’s tax deadweight loss conclusion or Mirrlees’ conclusion that progressive marginal tax rates reduce welfare – require significant qualification.

Form-Based Zoning Sweeps Through Connecticut

The Connecticut Mirror takes a look at the rise of form-based zoning in the Constitution State. Special kudos to UConn property professor Sara Bronin who spearheaded the two-year revision of Hartford's zoning code:

In the next few years planners across the Northeast will be watching Hartford, to see if the state’s most comprehensive form-based plan helps bring development to the long-struggling capital city. Ms. Bronin believes it should help, by making development more predictable and less expensive. For example, the new code eliminates minimum parking requirements for downtown projects, a major potential cost saver. Now, many if not most developers may choose to build parking, but the hope is that they will also rely on shared parking and mass transit to keep costs down. In addition to its form-based provisions the new Hartford code has — and has been praised by environmental groups for — a plethora of green features. It covers everything from waterway protection and urban agriculture to clean energy and the city’s tree canopy. There are also special zones around college campuses, transit nodes and the Connecticut River to encourage appropriate development in those areas.

Eason on Who Owns the Family Pet

Morgan Eason (Mississippi - Student) has posted A Bone to Pick: Applying a Best Interest of the Family Standard in Pet Custody Disputes on SSRN.  Here's the abstract:

What happens to companion animals when pet owners divorce? The role of pets in the lives of humans has evolved so drastically that most companion animals are now considered a member of the family. Courts have failed to evolve with these societal changes, many continuing to apply a strict property law analysis. To combat these inequitable outcomes, some courts have tried but failed in applying a de facto “best interest of the pet” analysis. This Article explains in detail why the application of a traditional property law analysis as well as the attempted application of a de facto “best interest of the pet” analysis in pet custody disputes leads to inequitable results.

This Article is the first to propose the application of a “best interest of the family” standard in pet custody disputes. On a case-by-case basis, courts must keep the focus on family members in order to achieve the most equitable outcomes in pet custody disputes. In making pet custody determinations using a “best interest of the family” analysis, courts should consider factors such as child custody orders, lifestyle considerations and the ability to care for the companion animal, and the psychological and emotional needs of companion animal owners. In accordance with the evolving view of companion animals, courts should consider and apply a “best interest of the family” standard when determining the custody of companion animals in order to achieve the most equitable results in pet custody disputes.

Lovett on A Comparative Perspective on Revendicating Movables

John Lovett (Loyola - New Orleans) has posted Professor Longhair's Legacy: A Comparative Perspective on Revendicating Movables (Book Chapter) on SSRN.  Here's the abstract:

This essay addresses the problem of how an owner of a corporeal movable can recover possession of the movable from another person who detains or possesses it without right. It approaches this age-old problem through the lens of SongByrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, (5th Cir. 1997) and SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2d Cir. 2000). These two decisions addressed the claims of SongByrd, Inc., the successor in interest of the legendary, New Orleans, rhythm and blues pianist Henry Roeland Byrd, aka Professor Longhair, against the estate of the legendary, rock and roll producer Albert Grossman. SongByrd sought to recover possession of several master tapes made by Byrd and other New Orleans musicians in the early 1970s that later made their way into Grossman’s possession. Without the consent of Byrd or his heirs, Grossman’s estate eventually licensed these master tapes to two record companies. One of these companies eventually released an album that earned Byrd a posthumous Grammy Award.

After providing biographical background on Byrd and Grossman and explaining how the master tapes ended up in Grossman’s possession, the essay examines the conceptual and pragmatic differences between Louisiana’s civil law response to SongByrd’s revendicatory action to recover the tapes and New York’s common law approach that framed the merits of the dispute in terms of when SongByrd’s claims for replevin and conversion began to accrue. In essence, the two SongByrd decisions illustrate the difference between a civil law acquisitive or positive prescription approach that asks whether a would-be adverse possessor has taken sufficient steps to begin to possess as owner and deserves to be awarded with ownership through prescription and a common law approach that focusses on whether the true owner has been inexcusably passive in pursuing claims to recover his property. The essay also addresses the long term impact of the respective decisions on the law of Louisiana and New York and how the controversy has been used by property law scholars in the United States to illustrate a statute of limitations/accrual approach to the claims of owners seeking to recover valuable personal property or movables.

Map of the day--Dams removed since 1936

American Rivers provides this cool interactive map of all dams removed in the US since 1936. It does have a few little quirks, including locating an Illinois dam a bit too far west on the Clearwater River in Idaho. But it is cool to see how many dams have been removed. I had forgotten that an old dam was recently removed near my home in Moscow. I ride my bike past the location regularly and watched it happen, but it now looks so natural that the memory of the dam has faded.