PropertyProf Blog

Nolon on Enhancing the Urban Environment Through Green Infrastructure

John Nolon (Pace) has posted Enhancing the Urban Environment Through Green Infrastructure (Environmental Law Reporter) on SSRN.  Here's the abstract:

This Article is adapted from Chapter Seven of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published by ELI Press. The book describes how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article follows the steady advance in the use of green infrastructure in recent years, and details its value as a strategy for adapting to climate change, bettering air quality, lowering heat stress, creating greater biodiversity, conserving energy, providing ecological services, sequestering carbon, preserving and expanding habitats, enhancing aesthetics, increasing property values, and improving the livability of neighborhoods.

Henning & Freyermuth on the Characterization and Treatment of Tenant Security Deposits

William Henning (Texas A&M) & Wilson Freyermuth (Missouri) have posted Article 9 and the Characterization and Treatment of Tenant Security Deposits (University of Arkansas at Little Rock Law Review) on SSRN.  Here's the abstract:

Each day, thousands of lessees enter into contracts under which they lease either real or personal property. Under the majority of these contracts, the lessee agrees to pay (and does pay) a "security deposit" to the lessor. The lessor typically agrees to refund the deposit at the conclusion of the lease term if the lessee fully performs its obligations under the lease contract. Is Article 9 relevant to this transaction? Has the lessor taken a "security interest" in the lessee's property to secure the lessee's obligations under the lease contract?

In Part I, we highlight two opinions representative of the majority of case decisions that have treated lessee security deposits as a "debt." In Part II, we briefly explore the extent to which Article 9's existing provisions appropriately address tenant security deposits, focusing particularly upon some potentially troubling differences that may follow if a security deposit is not made with property of the debtor (such as cash or a check) but is instead made with a credit card or similar payment mechanism. Part III argues that instead of attempting to modify Article 9 to more aptly govern tenant security deposits, the Uniform Law Commission should incorporate explicit provisions for the characterization and handling of tenant security deposits into the revised URLTA provisions that acknowledge the security deposit as a form of secured transaction, but that address the expectations of residential landlords and tenants more appropriately than the existing provisions of Article 9. Part III concludes with statutory language proposed for inclusion within the revised URLTA.

Laddering Your Way to Possession

In 2014, Carol Rose (Yale/Arizona) wrote a book chapter that asserts possession, for legal purposes, means acting like an owner. Put another way, possession involves having the appearance to others that you are the legitimate owner of the property. Third party acceptance of possession is crucial, as Rose argues, because without it, possession would be ineffective. Rose writes,

Legality—or at least the appearance of legality—is the chief focal point around which social norms of property can congeal. And social norms make possession possible. However much “possession” is equated with physical control of some resource, physical control alone is ineffective—indeed often impossible­—unless the so-called possessor is supported by the surrounding community. And under normal circumstances, what sways the community is the appearance of legitimacy.

Thus, Rose states the adage “possession is nine-tenths of the law” is really backwards; instead, the law is nine-tenths of possession.

Jurisprudence highlights how social norms impact possession. Grazing sheep on property for three weeks of the year may constitute possession in some jurisdictions, see Cooper v. Carter Oil Co., 316 P.2d 320 (Utah 1957), while grazing sheep twice a year, each time for a few weeks, may not constitute possession in others, see Lemon v. Madden, 340 P.2d 977 (Or. 1959). Erecting a fence usually may be a signal of possession, see Cook v. Eddy, 193 P.3d 705 (Wyo. 2008), but on occasion it may not be, see Rawls v. Parker, 602 So. 2d 1164 (Miss. 1992). Social norms matter in determining what constitutes possession.

Social norms are particularly interesting during a time like Mardi Gras when the basic social norm is “let the good times roll.”

What Mardi Gras demonstrates is that Rose is correct that social norms establish what the community accepts to be legitimate forms of possession. Nowhere is this more evident than in the use of ladders to establish possession of highly sought after parade watching locations.

Ladders are a thing at Mardi Gras, particularly along St. Charles Avenue in the Uptown and Garden District areas. There is an entire industry that builds “Mardi Gras ladders,” which are basically your standard ladder with a seat screwed into the top that small children can sit in. Yes, for those of you scratching you head right now. There is an entire industry out there that builds seats to put on the step of the ladder that reads, “Do not sit or stand on this step,” and parents sit their children on this seat.

Safety issues aside, ladders during Mardi Gras are a form of possession. On the Wednesday before Mardi Gras, people put ladders out on the neutral ground (aka the boulevard or the median) of St. Charles Avenue and leave the ladders there until Fat Tuesday. For six straight days, the ladders act as a signal to other parade goers that the spot where the ladder sits is taken. No one has to be on the ladder or in the seat on top of the ladder or anywhere near the ladder—everyone in the New Orleans area understands that the ladder signifies someone is exclusively possessing that tiny tract of neutral ground space.

If someone left a ladder out on the neutral ground any other week of the year, the ladder would be removed, be it by the city or a person passing by. But during the Carnival season, everyone respects the ladder. This limited time period every year is, to use Rose’s words, when “the [ladder] possessor is supported by the surrounding community.”

Social norms regarding possession during Mardi Gras are a fascinating case study. For more on this phenomena and how local laws are attempting to legitimize or alter current behavior, read Dave Fagundes’ (Southwestern/University of Houston) latest essay in the Tulane Law Review Online, The Tragedy of the Neutral Ground: Public Property and Social Norms During Mardi Gras.

Since it is almost Mardi Gras day as I am writing this, most social norms say I should turn off my computer for the next twenty-four hours and enjoy a slice of King Cake and an adult beverage. In the meantime, enjoy Carnival Day wherever you are and remember to laissez les bons temps rouler!

Housing, Minority Communities, and Nuisance Law Abuse in NYC

(Photo Credit here)

ProPublica recently came out with a story detailing how NYPD officials are using nuisance law to kick individuals out of their homes, largely based on groundless criminal claims that are ultimately dismissed in court. In at least 74 cases of nuisance eviction that were studied by ProPublica in partnership with The Daily News, residents agreed to warrantless searches of their dwellings (sometimes on an on-going basis) in order to be allowed to return to their homes. More importantly, the vast majority of these nuisance actions are falling on minorities. Over an 18-month study period, 9/10 homes targeted for nuisance abatement were in minority communities. The article notes that ProPublica "identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white."

This story raises some very interesting legal issues for property law professors in teaching nuisance principles. At the turn of the 20th century, nuisance law began to yield to zoning and land use restrictions, which were viewed as superior methods for regulating competing, adjacent land uses. In fact, in many cases zoning rules can preclude or at least diminish the validity of nuisance claims. For an excellent historical article on the progression of zoning and nuisance law in the U.S., click here. 

The way nuisance law is being wielded in NY raises a host of policy and legal issues, spanning from fair housing, criminal procedure, constitutional law, and beyond. Here's an excerpt from the ProPublica article:

The nuisance abatement law was created in the 1970’s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences. . .

A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her. . . 

The NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones. . . Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.

“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”

IP @ MG

Playing the word association game with “Mardi Gras” might yield a variety of results such as carnival, party, parades, beads, King Cake, and a host of things that I probably can’t write on this blog. It might also conjure up another word: IP.

Intellectual property issues are rampant during Mardi Gras. Take, for example, the 2011 trademark infringement dispute between the Rex Organization and the Micro-Krewe of ‘tit RƏx (pronounced "tee Rex"). Rex is the Mardi Gras parade. It rolls on Fat Tuesday. The King of Rex is the King of Mardi Gras. Rex is king. All hail Rex.

‘Tit RƏx is the antithesis of Rex. It’s a parade of shoebox floats pulled by the makers of the floats more than a week before Mardi Gras day. The parade was named as an abbreviation of the French word petit and a humorous play on the giant dinosaur, the Tyrannosaurus Rex, more commonly called, T-Rex.

(Photo credit for ‘tit RƏx to Chris Graner at Nola.com; Photo credit for Rex to David Grunfeld at Nola.com)

Despite the vast differences between the two parades, in 2011, the big Rex informed the little Rex that the little Rex was infringing on the trademark the big Rex had in the name “Rex.” Daddy Rex threatened to sue baby Rex if the fledgling parade didn’t change its name. To satisfy the demand, ‘tit Rex became ‘tit RƏx. All of this happened, allegedly, quite amicably and the organizers of ‘tit RƏx said they understood that the Rex Organization had to protect its trademark. One of the more humorous aspects of the story is that every year a newspaper article about ‘tit RƏx runs in a New Orleans paper and the “e” is not turned upside down into a schwa (Ə). Instead, the journalist includes a closing paragraph that says something like, “For everyone's peace of mind, please imagine that the letter ‘e’ in this story is upside down when legally necessary.”

There are IP issues surrounding Mardi Gras music. John Lovett (Loyola) has a new book chapter that highlights this. The actual subject of Lovett’s chapter is a comparative analysis of the revindication of movable property, but the story that is at the heart of Lovett’s analysis is all about copyright law and the music of Professor Longhair, a pianist whose name is synonymous with Mardi Gras because of his songs “Tipitina” and ”Go to the Mardi Gras.” In 1971, Professor Longhair recorded four tapes during a recording session in Baton Rouge, Louisiana. The tapes were sent to a record company in New York, allegedly as demo tapes. For unknown reasons, the tapes were never returned. After Professor Longhair’s death, the recording studio used the tracks on Professor Longhair’s tapes to produce the Grammy-winning album, House Party New Orleans Style: The Lost Sessions 1971-72, and a few years later tracks were used on the album Professor Longhair: Mardi Gras in Baton Rouge. Unsurprisingly, Professor Longhair’s heirs wanted the proceeds the tapes generated, but as Lovett discusses in his book chapter, copyright protection was unavailable. Instead, the heirs had to use the revinidicatory action to try and gain ownership of the tapes, thus giving rise to Lovett’s comparative analysis of the revindication of movables.

Last year’s case Nola Spice Designs, L.L.C. v. Haydel Enterprises, Inc., 783 F.3d 527 (5th Cir. 2015) brought up IP issues of a unique variety. There is a thing in New Orleans called a “bead dog.” The basic procedure for making one is to break up a pair of beads into a group of four beads and three groups of two beads. Connect the three groups of two beads over the longer chain of four beads and, voila you have a bead dog. Kids make them regularly. My daughter made one for every child in her class last week.  

(Bead Dogs made by my daughter while trying to catch shoes at the Muses parade.)

In 2009, Haydel’s Bakery, a very popular bakery in New Orleans that makes one of the best King Cakes in the city, commissioned for a mascot to be made. The mascot that was designed was a bead dog. Haydel’s had the phrase “Mardi Gras Bead Dog” trademarked and received a copyright for the Bead Dog work.

In 2012, the jewelry and accessory store Nola Spice Designs was created. Nola Spice sells, among other things, jewelry made out of Mardi Gras beads in the shape of, you guessed it, a bead dog, and advertises those pieces of jewelry as “bead dogs.”

You can all guess what happened at this point. Haydel’s sued Nola Spice for trademark and copyright infringement. Given that you can currently buy “Bead Dogs” jewelry on Etsy from Nola Spice Designs, you can guess the outcome of the litigation, but read the entire opinion if you want to see a very in depth discussion of the bead dog tradition, photos included.

IP issues involve Mardi Gras clothing. In 2010, the U.S. Copyright Office recognized the Mardi Gras Indian costume made by Howard Miller as a sculpture/3d artwork, thus giving the costume copyright protection which had the benefit of, in some situations, requiring photographers to pay to sell photographs of the costumes.

IP affects even the most sacred of Mardi Gras things—liquor. In 2013, having settled its dispute with ‘tit RƏx, the Rex Organization sued King Rex Spirits for trademark infringement when King Rex Spirits produced vodka in Mardi Gras-themed bottles.  Though you can still buy Nola Spice Bead Dogs, you cannot buy King Rex vodka in stores anymore, so you can all guess the outcome of this lawsuit, too.  

Mardi Gras and intellectual property. They go together like red beans goes on rice, plastic babies go in King Cakes, and Professor Longhair goes with the piano. 

 

The Value of a Shoe, a Purse, and a Coconut

My law professor husband and I spent the better part of Thursday evening trying to get our daughter a shoe. It’s not that we don’t have shoes. We have every shoe a seven-year-old girl could want: school shoes, soccer shoes, cowgirl boots, ballet flats that make us think we look like a grown up, rain boots with princesses on them, rain boots without princesses on them, shoes that have Elsa on them, and because, as you may recall, it snows so often in New Orleans, we have two pairs of snow boots. We have shoes.

But tonight we wanted a very particular shoe: a Muses shoe. The Muses parade which rolls the Thursday before Mardi Gras has a very special throw, hand-decorated shoes. They are glittery and sparkly and very hard to get. The Muses Krewe claims to have 1,000 riding members. My friends who are in the Krewe say they make about 30 shoes every year. Assuming every rider made 30 shoes, there would be 30,000 shoes thrown (which seems like an over-estimate to me, but we’ll use it for our purposes here). CNN reported a few years ago that an estimated 1.4 million attend Mardi Gras every year. That entire group certainly is not watching the Muses parade, but even if half of Mardi Gras goers are watching this very well-attended parade, that’s 700,000 people. With 30,000 shoes, only 4 percent of those attending the Muses parade can get a shoe. Take into account the fact that about half of the shoes are predestined for a particular individual, the actual odds of catching a random shoe are even lower.

Despite knowing that we were very unlikely to catch a shoe, we braved the crowds, the 45 degrees weather, and the staying up past our bedtime, and gave it our best shot.

We came home empty footed.

The Muses’ shoes, like the purses thrown during the Nyx parade or the coconuts thrown during the Zulu parade, are interesting forms of property because of how we value them. Most people would not pay for these items, or at least would not pay more than $10 for them. They are not usable for anything but decorations, and even then, it takes a very particular decorative style to weave in a glittery shoe, sparkly purse, and painted coconut. But even though the average individual would not pay for a Muses shoe, I can attest that thousands and thousands of people were out on Thursday night, elbowing their way through the crowd with the hopes of catching one shiny high heel. More than a few people quite obviously highly valued these shoes.

Valuing property is always complex and contentious. You needn’t look any further than Susette Kelo to know that. But valuing property is an important aspect of the law. We value property for purposes of determining what is just compensation. We assign values to property during appraisals. We value personal property during bankruptcy. In divorce, we value marital property to insure equitable divisions. We value estates at death. The law constantly places a value in terms of dollars and cents on property.

My experience on Thursday night with the Muses shoe gave me three take aways about valuing property:

• The laws of supply and demand are real. When the quantity supplied falls, the price rises. With at most 30,000 shoes to be distributed among more than 20x that many people, the price of the Muses shoe skyrocketed. That’s true with all property—land, food, automobiles, books . . . the less there is, the more it costs.
• Scarcity sometimes trumps reason. The Muses shoes are sought because they are special. They are special because they are scarce. It is arguably irrational that two law professors would be fighting their way through a crowd to get a shoe that will do nothing by bring glitter into our house. (Glitter, mind you, that we will be unable to get rid of for months.) But the shoes are scarce and therefore they are special and we want special things so we keep up the fight for the shoes even though our desire for the shoes is, from a purely rational standpoint, unreasonable.
• There are things that are worth our time, but not our money. Of course, going after the shoes is not unreasonable once you factor in that there is an experience involved—the experience of taking your child to this uniquely New Orleans tradition and, if you catch one, having bragging rights for years. The whole experience was a blast, despite not catching a shoe. I wouldn’t pay a dime for the Muses shoe, but I would give hours of my day to have the whole experience again. There are some things that are, to rip off the old MasterCard commercials, priceless. In law, though, things cannot be priceless; everything must be assigned a monetary value. How we assign that value, whether we should incorporate the x factor, whether we should consider subjective valuations or simply examine objective valuations . . . all of these questions do not have easy answers but they are questions that must be continually contemplated as property is valued.    

These are certainly not novel insights; they are pretty pedestrian observations. Far more interesting comments have been made about property valuation by Judge Richard Posner (discussing pretty well anything), Avi Bell and Gideon Parchomovksy (discussing the value of property generally, the value of information about property rights), Lee Anne Fennell and Yun-chien Chang (discussing valuing co-owned property for partition purposes), to name just a few. And this is to say nothing of the plethora of scholars, including some of those aforementioned, who have written about valuing property in the context of takings.

Valuation issues regarding property will always be an issue. If you need a real life reminder of how difficult it can be to value property, come to Mardi Gras. As the saying in New Orleans goes, “happy are they whom the muses love” for they get the highly-valued property, the shoe.

Public lands, common ground, and the smell of sagebrush after the rain

(photo by Jonathan Long)

The Malheur Occupation has presented at least two community-learning opportunities. These most recent sagebrush rebels have used a specific, limited reading of the Constitution to support their arguments, and legal and policy scholars have understandably and capably countered with a more nuanced and complete reading of the Constitution’s property-related provisions. Because the counter to “that’s unconstitutional!” is never as easy as we’d like, continuing to simplify and clarify the argument for continued federal ownership of the public lands will be useful.

But in some ways, supporters of the public lands have missed an opportunity to consider and understand the non-legal arguments of the sagebrush rebels. These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history. While it might initially seem counter-intuitive, failing to consider carefully some of the rebels’ reasons might be problematic in a future in which threats to the public lands are likely to increase.

A common response to sagebrush rebels is that the public lands are just that, public—owned by all people, whether in New York or Nevada, and managed by the federal government in trust for all of us. In this argument, it doesn’t matter where a person lives, or whether they have or ever will visit the public lands—all should have equal say in their management. That is, of course, true in a general sense. But it assumes a specific type of and singular purpose for the public lands. The public lands story is somewhat more complex than that.

Those who have studied public lands history are familiar with three general eras: acquisition, disposition, and retention. Today, we view the disposition era somewhat out of focus, as a romantic old western that seems as much fiction as not. We forget, or at least ignore, that for a long time the official policy of the United States was to transfer the public domain to private owners. Retention largely first came in 1872 with the creation of Yellowstone National Park, and then more completely with the first forest reserves authorized in an un-debated “rider” on the General Revision Act of 1891 (note, even the “Forest Service Organic Act”—which guided management of the National Forests for eight decades—was a rider to an 1897 appropriations bill).

But disposition of the public domain did not stop being the official policy of the United States until 1976 when Congress passed the Federal Land Policy and Management Act. Even with that, disposition (i.e., transferring federal property to private owners) is still a real and important part of today’s federal property management regime, as anyone who deals with coal mining, timber harvesting, or any other resource development program on the public lands can attest.

Recognizing that the disposition and retention eras overlapped for much longer than generally acknowledged only gets us part of the way to a more complete public lands story. We often talk about the “public lands” as a single thing, but there are many categories of public lands and purposes—National Forests, National Parks, National Monuments, Wildlife Refuges, and the “public lands” managed by the Bureau of Land Management, among others. Today we think we understand, at least generally, why each of these categories exists. But their origins and original purposes were rather more contested and complicated.

Of this list, only National Parks were (or are) specifically and necessarily created by Congress for a single purpose. The others are less unified in origin and reason. When President Teddy Roosevelt created the first National Wildlife Refuges (including the Malheur National Wildlife Refuge in 1908), he did so under somewhat questionable authority. Many of our National Forests were initially reserved despite express opposition from Congress—President T. Roosevelt’s “Midnight Forest Reserves” included 16 million acres of now National Forests that were reserved after Congress had signed legislation prohibiting the President from creating more reserves (but before President Roosevelt signed the bill into law). And controversy over the use of the Antiquities Act to create National Monuments dates from its very beginnings—when it was used to create Devil’s Tower National Monument, and to help create Grand Canyon and Grand Teton National Parks—to today. On Tuesday, the Senate narrowly defeated a bill that would have limited the President’s use of the Antiquities Act.

Focusing on the National Forests alone demonstrates the potential disconnect between purpose and contemporary perception of the public lands. The 1897 Organic Act specified that the purpose of the forest reserves was to secure “favorable conditions of water flows, and to furnish a continual supply of timber[.]” That first purpose, at least, was very much locally-focused, given how water is managed in the West. And these purposes—and none other—remained until 1960 when the Multiple Use Sustained Yield Act added outdoor recreation, range, and wildlife and fish as purposes of the National Forests. It is entirely appropriate today to expect that National Forests be managed, in part, to protect biodiversity. But that was not always the case, nor is it the sole designated purpose of those lands.

With respect to the BLM-administered public lands, they were managed largely for disposition, range, and mineral development until 1976, when FLPMA specified that they also should be managed for a wider variety of uses. Today they are still managed largely, in some places, for the historically dominant uses—the joke about the “Bureau of Livestock and Mining,” while increasingly unfair, does have some reason for being. Although we might eventually so decide, the BLM public lands are not yet, nor have they ever been, intended exclusively as an outdoor recreation mecca or wildlife sanctuary.

So what is the point of this admittedly simplistic, incomplete attempt at history? The public lands are complex and contested. And many current public lands users were part of that complex public lands history. Long-term successful management of the public lands as public lands will require an intricate and nuanced understanding of the conflicting notions of purpose and ownership that have always been a part of the public lands story. Going forward, it will be insufficient to simply claim, “but they are public!” and leave it at that, even if the law seems to allow us to do so. That is too simplistic, and ignores the long history in which they weren’t public, at least not as most people understand that word today. It also ignores that, even today, we manage them for a variety of private uses, granting enforceable property rights in the public lands to private individuals. More frightening, should the assumption prove inappropriate, it assumes that efforts to “take back” the public lands never gain traction in Congress or the Supreme Court.

I was recently criticized as being “naïve and unrealistic” in my assessment of contemporary public lands conflict. That is likely true—I still believe that no one is immune to the smell of sagebrush after a rain. Maybe growing up a tree-hugger in a sagebrush town has that effect. However, naïve or not, I do think that understanding the public lands requires experiencing them on the ground and face-to-face with the people, trees, cows, and sagebrush. We cannot claim nor expect legitimacy if we ignore the history of the place or its people.

We need to love our public lands enough to be willing to consider why other people might not. Perhaps better said, we need to love them enough to be willing to consider why other people might love them differently. I believe that there are things, at least a few, that we can all agree on. And that’s where successful public “public lands” management starts.

 

 

Finders Keepers and King Cake Babies

Finders law is always fun teach. It’s fun in part because everyone, even my seven-year-old daughter, knows the rule “finders keepers.” It’s also fun because the law of finders gives an easy avenue into topics I particularly enjoy, namely equity and comparative property law.

Teaching finders law frequently begins by demonstrating that there is legal support for the playground rule “finders keepers” (except with regards to the true owner) in old English cases like Armory v. Delamirie or Hannah v. Peel. Then comes the discussion on equity. What if the property was actually mislaid? Enter McAvoy v. Medina and the equitable notion that someone who mislays his property does not lose his ownership over that property. You can come up with hours of hypotheticals on the types of property that might be found and what the fair result should be.

The other opportunity finders law presents is the opportunity to discuss how other legal systems approach the same problem. The common law that most American law students study takes the ex post, jurisprudence-driven approach: a set of facts arise and the court makes a determination about how to resolve those facts based on past jurisprudence. This is what most law students are familiar with. But finders law provides an easy way to introduce American law students to the ex ante, statute-driven approach of the civil law. Sure, almost any topic in property law provides this opportunity, but finders law is a particularly easy way for students to be introduced to civil law property ideas.

Civil law systems, as might be expected, approach finders law from the question of classification. Things can be treasures, things can be lost, things can be abandoned. What classification the property is given determines what rights the finder has in the property.

Under French Code Civil article 716, a “treasure” is defined as any hidden or buried thing, the ownership of which cannot be proven. If a treasure is found on the estate of another, half of the treasure belongs to the finder and half belongs to the owner of the estate on which the treasure was found. See also La. Civ. Code art. 3420. The Spanish Código Civil creates a similar definition of treasure, defining it as any money, jewelry, or precious object whose owner is unknown. See Código Civil art. 352. Under Spanish law, treasure belongs to the owner of the land in which the treasure was found. Código Civil art. 351.

The French and the Spanish legal systems both create the idea that things may not be treasure, but instead may be abandoned. The French Civil Code does not provide a specific remedial rule in this context, but the Spanish Código Civil does: occupancy. If property is abandoned (meaning the prior owner gave up his possession), the abandoned thing is owned by no one and thus subject to the civilian laws of occupancy. Under occupancy, the finder eventually becomes the owner of the thing, but not without waiting some time period so that the true owner can attempt to be found See Código Civil art. 615 (requiring a two year waiting period).

German law has an entire subtitle on finders in the Bürgerliches Gesetzbuch (BGB). If a thing is a “lost thing,” then the finder must try to find the owner, BGB § 965, and has a series of duties with regards to the lost thing, such as keeping it in safe custody or putting the lost thing up for public auction if the lost thing may be spoiled or too expensive to keep in safe custody, BGB § 966. If the owner of the lost thing does not appear after six months, the finder becomes the owner. BGB § 973.

However, under German law, if the thing is a treasure, then the finder immediately becomes the owner of half of the treasure and the owner of the thing in which the treasure was found owns the other half. BGB § 984. A treasure in German law is defined as a thing that has been hidden for so long its owner cannot be established.

The civil law outcomes are not terribly different than those at common law, but the civil law ex ante classification of lost property versus abandoned property versus treasure, and remedies based on the classification, highlights in a relatively simplistic manner the different approaches of the civil law and common law. The ultimate ends may be similar between the different systems, but the means taken to get there are different.

Given that Property is a spring semester 1L course at my institution, Property is always taught during the Mardi Gras season. Thus, finders law also gives an excuse to bring in a real life problem that is very dear to the hearts of all who call New Orleans home: who owns the King Cake baby? The finder? The maker of the King Cake? Do you take the Solomon approach and split the King Cake baby in two? These are some of the important property questions facing Carnival goers. And don’t worry—we have a law on the topic, even if it is a law created by tradition. The rule is that if you find the King Cake baby, you keep it, but you have the duty to bring in the next King Cake.

While thinking about King Cake and finders law, I realized that not all bakeries across the United States are busy making the scrumptious delight we in New Orleans enjoy on almost a daily basis between Epiphany and Mardi Gras. Thus, I thought I would help folks out by sharing my own King Cake recipe so you, too, can enjoy the holiday. It’s really not that hard to make—I’m a terrible cook, but as the photo indicates, my King Cake turned out pretty well—and can be eaten with or as any meal of the day. So go home, make yourself a King Cake, contemplate finders law, and laissez les bon temps rouler!

 

Sally’s King Cake Recipe (based on the recipe of a far better cook, Betty Crocker, with a few modifications)

Cake Ingredients

3 to 3 ½ cups of flour

2 ¼ teaspoon of rapid rise yeast

1 cup of whole milk

¼ cup of sugar

1 teaspoon kosher salt

2 large eggs

6 tablespoons of unsalted butter

Cinnamon Filling Ingredients

1 cup light brown sugar

1 ½ teaspoons of ground cinnamon

5 tablespoons of unsalted butter (softened)

Icing Ingredients

2 cups powdered sugar

2 tablespoons of milk

1 teaspoon of vanilla

Sugar Topping Ingredients

1 ½ cup of sugar divided into three ½ cup amounts

food coloring

Heat milk, sugar, and salt in a small saucepan over medium-low heat for 5 to 7 minutes, stirring regularly to make sure the sugar dissolves.

Put 2 ½ cups of flour and yeast into mixing bowl. Add milk/sugar/salt while it is still hot. Mix until ingredients all combined. If using a stand mixer, mix on low using a paddle attachment.

Add eggs, one at a time, mixing in until the eggs are fully incorporated.

Add the remaining ½ to 1 cup of flour and the butter. To add the flour and butter, add a spoonful of flour, then a tablespoon of butter, then a spoonful of flour, then a tablespoon of butter, etc., until ingredients are fully mixed in and the dough is forming into a single ball. If using a stand mixed, mix on low using the dough hook.

Once all of the ingredients have been incorporated, keep mixing for another 8 to 10 minutes.   If using a stand mixer, mix on low using the dough hook and be sure to stop the mixer periodically to scrape the dough off of the hook.

After mixing, put ball of dough into a bowl greased with butter. Cover bowl with saran wrap and put in the refrigerator for one hour. The ball of dough should double in size.

While waiting for the ball of dough to rise, make the cinnamon filling by mixing cinnamon, light brown sugar, and butter in a small bowl with a fork. The cinnamon filling is complete when it has the consistency of wet sand.

When the dough has risen, roll it out so that it is slightly larger than the bottom of a cookie sheet. Cut the dough length-wise into three strips. Take each strip and roll it out individually a little more.

Place the cinnamon filing in the middle of each strip of dough, then fold length-wise the edges of the strips of dough together. Press the edges together carefully. If you don’t carefully secure the edges, the cinnamon filing will come out of the cake more than you want it to during the baking process.

Take the three cinnamon-filled strips of dough and braid them together. Take both ends of the braid and attach them together so that the braided dough makes an oval shape.

Place braided dough in its oval shape on a greased cookie sheet. Cover it in saran wrap and let it sit for 1 or 2 hours, allowing the dough to rise more.

Bake the dough at 350 degrees for 22 to 25 minutes, then put foil over it and bake for an additional 5 minutes.

After removing the King Cake from the oven, let it sit for about 20 minutes on the cookie sheet in the open air. Then move the King Cake to a cooling rack and let it cool for an hour.

While the King Cake is cooling, make the three sugar toppings (yellow, green, and purple) by taking ½ cup of sugar and adding drops of food coloring to it. Using your fingers, rub the food coloring into the sugar. For yellow, use 5 to 7 drops of yellow food coloring. For green, use about 5 to 7 drops of green food coloring. For purple, use 3 drops of blue food coloring and 5 drops of red food coloring.

After making the sugar topping, make the icing. To make the icing, add the powdered sugar, milk, and vanilla in a bowl and stir using a fork.

As soon as the icing is ready, move the King Cake to whatever dish you wish to serve the King Cake on. Then, using a spoon, spoon the icing on to the cake. The icing will naturally fall to the sides. As soon as the icing is on the cake, add the sugar topping, alternating between yellow, green, and purple.

Serve immediately. The King Cake is best eaten the day it is made, though you can carefully cover it and eat it for a few more days. If eating more than 24 hours after making it, heating a slice of King Cake for 5 to 10 seconds in the microwave is a very enjoyable way to serve it.

ALPS Registration Extended

Our friends at Queen's University in Belfast have announced that they have extended the deadline to register for this year's ALPS (Association for Law, Property, and Society) conference until March 1, 2016.  Registration should be completed online through the conference website.

The conference organizers are also pleased to announce that the keynote speaker for ALPS 2016 will be Professor David Cowan, University of Bristol, UK.

Professor Cowan's research is mostly socio-legal, and focuses on social theory, housing and property system(s). His books include Homelessness: The (In)Appropriate Applicant (Dartmouth, 1997), Housing Law and Policy (Cambridge University Press, 2011), as well as co-authored books, The Appeal of Internal Review (Hart, 2003), Regulating Social Housing: Governing Decline (Glasshouse, 2005), and Great Debates in Property Law (Palgrave MacMillian, 2016).

Professor Cowan's talk will focus on marginal ownership and tenurial differentiation. He will draw on data derived from a recent Leverhulme Trust funded project (on which he worked with Helen Carr and Alison Wallace), which focused on a low cost home ownership intervention known as "shared ownership", to explore crisis moments in marginal "home ownership" initiatives: http://www.bristol.ac.uk/law/research/shared-ownership/.