PropertyProf Blog

Map of the Day -- Climate change induced migrations

The Nature Conservancy and the University of Washington put together a map depicting how animals might migrate in response to climate change. One interesting aspect is the limited migration capacity of amphibians in the West, due (I assume) to limited habitat availability.

 Migrations in Motion

CFP: Wealth Transfer Law in Comparative & International Perspective @Iowa

This just in from Tom Gallanis (Iowa):

Call for Papers

Wealth Transfer Law in Comparative and International Perspective

Friday, September 8, 2017

The University of Iowa College of Law and The American College of Trust and Estate Counsel’s Legal Education Committee are organizing the 7th academic symposium financially supported by the ACTEC Foundation.  The symposium, Wealth Transfer Law in Comparative and International Perspective will be held at the University of Iowa College of Law on Friday, September 8, 2017.  The keynote address will be given by Professor Lionel Smith of McGill University and King’s College London.

Among the objectives of this symposium are:

            (1) To bring together prominent and up-and-coming scholars for the discussion of important issues in wealth transfer law from a comparative and international perspective;

            (2) To spur leading-edge research on wealth transfer law, looking beyond the borders of any one jurisdiction;

            (3) To encourage U.S. professors of trusts and estates to incorporate comparative and international perspectives into their scholarship and teaching; and

            (4) To promote collaborations and exchanges between U.S. and non-U.S. scholars.

Papers presented at the symposium will consist of papers selected from this Call for Papers and papers from invited speakers.  The papers will be published in the Iowa Law Review.

If you would like to be considered to present a paper, please submit an abstract of your paper to Professor Thomas Gallanis by email ([email protected]) by November 1, 2016.  The Iowa Law Review will notify individuals chosen to participate in the symposium no later than December 1, 2016.  Symposium speakers will be required to submit a draft of their papers by August 1, 2017, so that the panel commentators will have sufficient time to prepare their commentary.

Symposium speakers will be reimbursed for their travel expenses (economy airfare, the cost of ground transportation, and up to two nights’ hotel for speakers within North America and up to three nights’ hotel for speakers from beyond North America).  Speakers will be invited to dinner on the evenings of Thursday, September 7, and (for speakers staying Friday evening) Friday, September 8. 

Breakfast and lunch will be provided to speakers and attendees on Friday, September 8, courtesy of the ACTEC Foundation.

Questions about the symposium or this call for papers should be directed to Professor Gallanis at the email address above.

 

Mandelker on Zoning and Alternative Housing

 Daniel Mandelker (Washington University) posted Zoning Barriers to Manufactured Housing (The Urban Lawyer) on SSRN. Here's the abstract:

Manufactured housing is a major affordable housing resource for millions of people. Restrictive zoning barriers limit its availability, even though studies have discredited myths, such as objections to its safety and quality. A national statute, the National Manufactured Housing Construction and Safety Standards Act, authorizes building code standards that address all aspects of safety, durability and quality, and that preempt state and local codes that deal with this problem. The Act does not preempt restrictive zoning, and Congress should amend the law to cover zoning restrictions. Judicial control of zoning barriers to manufactured housing is unsatisfactory and requires statutory change. Courts accept unequal treatment that applies restrictive zoning only to manufactured housing, though some statutes prohibit discrimination. The cases uphold exclusions from residential districts if manufactured housing is allowed elsewhere. Some statutes prohibit exclusion by requiring manufactured housing as a permitted use in all residential districts, or allow a community to decide what residential districts must accept manufactured housing. Courts uphold aesthetic standards, such as roofing and siding requirements, and some statutes authorize them, though limitations are needed to protect manufactured housing from exclusionary treatment. Communities often require approval of manufactured housing as a conditional use, and approval as a conditional use is often denied. Courts have upheld conditional use denials, and statutory protective standards are needed that will prevent abuse of the conditional use requirement.

Eagle on Oceanfront Property and Takings

Josh Eagle (South Carolina) has posted Taking the Oceanfront Lot (Indiana Law Journal) on SSRN. Here's the abstract:

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner of each oceanfront lot holds easement-like interests in adjacent state-owned land; and, the state holds similar interests in the oceanfront lot. For these two reasons, the legal relationship between the oceanfront owner and the state is more interdependent than it may seem at first. It is much more than the usual neighbor relationship.

Disputes over oceanfront property are often framed as cases of wrongful taking under the Fifth Amendment’s Just Compensation Clause. The Supreme Court has historically applied its standard takings test for determining whether or not a state is liable for the impact of its rules on a landowner’s rights. This Article is the first to examine the question of whether use of this standard test is optimal, or even logical, in cases between states and the owners of oceanfront land. Given the fact that climate change impacts such as sea-level rise are likely to increase rates of conflict along the legal coastline, the potential benefits of a test that takes into account the special relationship between these parties are significant. Support for an alternative test can be found in two sets of common law property rules, the upland rights and public trust doctrines, as well as in a mechanism that nineteenth-century courts used to resolve similar disputes.

Eagle on the Socioeconomics of Affordable Housing

Steven J. Eagle (George Mason) posted Conflation, Intractability and Affordable Housing (Fordham Urban Law Journal) on SSRN. Here's the abstract:

This Article examines the varying and often-conflicting views of “affordable housing” of different social and economic groups. It asserts that attempts to deal with affordable housing issues must take into account the shelter, cultural, and economic needs of those populations, and also the effects of housing decisions on economic prosperity. The article focuses on affordable housing goals such as making available an ample supply of housing in different price ranges; attracting and retaining residents who contribute to the growth and economic prosperity of cities; ensuring that neighborhood housing remains available for existing residents, while preserving their cultural values; and providing adequate housing in high-cost cities for low- and moderate-income persons and the overlapping concern for “fair housing” for families of all races and backgrounds.

Thereafter, the Article examines the benefits and detriments of various means of providing more affordable housing, including fair-share mandates, rent control, and inclusionary zoning (including whether that leads to impermissible government takings of private property). It then briefly considers the merits and demerits of federal subsidy programs.

The Article briefly considers conceptual and practical problems in implementing the Supreme Court’s 2015 Inclusive Communities disparate impact holding, and HUD’s 2015 regulations on “Affirmatively Furthering Fair Housing.” Finally, it discusses how the concept of “affordable housing” conflates the separate issues of high housing prices and poverty, and how housing prices might be reduced through removal of regulatory barriers to new construction.

Throughout, the Article stresses that advancing affordable housing goals have both explicit and implicit costs, and that goals often are conflicting. To those ends, it employs economic and sociological as well as legal perspectives.

#LouisianaFlood: Property Law and Consumer Protection After a Natural Disaster

(Photo Credit: The Millennium Report)

As national news is just getting around to reporting, Baton Rouge and its surrounding areas recently experienced tremendous flooding. Large portions of southeast Louisiana were (and many remain) underwater. Our tax law friends over at the Surly SubGroup, specifically Phil Hackney (LSU), summarize the situation nicely:

The devastation stretches from around the Louisiana-Mississippi border all the way over to Lafayette -maybe 100 miles across. This story does a nice job explaining the weather phenomenon that caused this massive flood event. Neighborhoods that have never flooded before in our recorded history are under 4 -6 ft. of water, and some higher than that. Almost the entirety of certain cities are submerged. The last data I had for my area is that 20,000 were displaced and 10,000 in shelters. I expect that number to go up over the week. Even though it has stopped raining, the flood waters cannot drain because the rivers are too high and cannot take runnoff from tributaries.

For those who may find this helpful, this short post talks a little about the property law (specifically related to home mortgage obligations and homeowners’ insurance) that victims of natural disasters like the Louisiana flooding should keep in mind.

MORTGAGE LOAN OBLIGATIONS

After a disaster like the flooding in Louisiana it is important to get in touch with your bank or mortgage servicer to obtain relief. The reason for this is because even if your property is destroyed and/or you can no longer live in the home, the mortgage debt does not go away. It is still owed even if the improvements on the real estate are not longer habitable. If contacted, however, sometimes the mortgage company will give you more time to pay your monthly note and even dispense with late fees or penalties. Also, if the home has been lost due to substantial or total destruction, you’ll want to talk to your mortgage servicer ASAP to prevent or postpone foreclosure on the property. For private loans (i.e., not government-backed) it will be up to the lender and you to work out those details. Be aware that even if the lender gives you a forbearance for a period of time, you will still have to make up those payments later.

For those loans that are FHA-backed, borrowers are sometimes eligible for resources that allow them to remain in the home. The FHA has a disaster relief policy pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act where, if (1) you or your family live in a federally-declared disaster area; (2) you are a household member of someone who is deceased, missing, or hurt because of the disaster; or (3) your ability to pay your mortgage is significantly impacted by the disaster, then your lender cannot foreclose on its mortgage for a 90-day period. The FHA also strongly advises its participating lenders to work with mortgagees who are affected by natural disasters (for example, by taking a deed in lieu of foreclosure if appropriate or allowing only partial payment for a period of time). This is why it’s so important that homeowners in these flooded areas contact their mortgage servicers and let them know that they qualify for FHA Disaster Relief. For additional help in this process, HUD has a counseling hotline to call at 1-800-569-4287 or you can contact HUD's National Servicing Center.

PROPERTY INSURANCE

With regard to property insurance, dealing with your insurer can be a long and complicated process after a natural disaster. The important part is knowing what your declaration and your policy states, and whether flood insurance is included (i.e., for damage caused from rising waters). A general homeowner’s policy only covers damage caused by wind, rain, hail etc. Flood damage is insured separately. The exclusions portion of the policy will help in making this determination.

When it comes to actually getting money for lost or damaged property, different insurance policies take different approaches. You can either obtain the replacement cost value of the property (which means the insurance company will give you funds necessary to substitute the damaged or lost property with comparable property) or actual cash value (which is where you receive the cash value of the property that was lost or damaged, minus depreciation over time). The insurance policy will reveal to which you are entitled.

In the case of personal property losses specifically, this is generally referred to as the insurance of “contents” of the home. Documenting these losses are particularly important (so don’t start throwing things away too quickly). Keeping receipts are also critical to submitting a successful claim.

Another important aspect of property insurance is the fact that you are not the only person insured. Your mortgage bank is also listed as an insured on your policy, which means that when the insurance company send the check the bank will also be listed as a payee. Usually your residential mortgage contract requires that you send the check to the bank and then, through an escrow and release process, the funds will be distributed to you to pay contractors to repair the home in tranches. This means that you and your mortgage bank will have to work together to get the repairs completed and your contractors paid. Another option can be to actually pay off the mortgage debt altogether (if there’s a sufficient amount), but that is a decision that the mortgage lender gets to make. As a homeowner you should try to find out how the mortgage lender will use the insurance proceeds because if the mortgage debt is paid off that leaves you with no money to make repairs to your home.

Meier on the Rule of Capture

Luke Meier (Baylor) recently posted Teaching Pierson v. Post on SSRN. Here's an excerpt:

I have now taught Pierson thirteen times. I love the case. (My former students would confirm this statement.) After experimenting with different ways of teaching Pierson, I have developed a unique approach that (I believe) accomplishes many of my pedagogical objectives for the first week of class. The students also seem to enjoy it. This article explains my approach to teaching Pierson v. Post.

Posner & Weyl on Private Property and Resource Allocation

Eric Posner (Chicago) and E. Glen Weyl (Yale/Microsoft) posted Property is Another Name for Monopoly Facilitating Efficient Bargaining with Partial Common Ownership of Spectrum, Corporations, and Land on SSRN. Here's the abstract:

The existing system of private property interferes with allocative efficiency by giving owners the power to hold out for excessive prices. We propose a remedy in the form of a tax on property, based on the value self-assessed by its owner at intervals, along with a requirement that the owner sell the property to any third party willing to pay a price equal to the self-assessed value. The tax rate would reflect a tradeoff between gains from allocative efficiency and losses to investment efficiency, and would increase in line with expected developments in information technology. The legal and economic implications of this system are explored.

 

Registration Open: State & Local Government Law Works-in-Progress Conference

The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016.  Scholars and practitioners writing in areas related to state and local government law are invited to attend and/or present works in progress. Participants can register and obtain hotel information here.

Please register for the conference by September 9, 2016.  Participants will have the option of either presenting a full draft or an early work-in-progress/abstract.  Drafts/abstracts will be due September 26, 2015.  Questions should be directed to Kellen Zale at [email protected].

Hiring Announcement: California Western School of Law seeks 2-3 tenure-track faculty members

This just in from from Laura M. Padilla at California Western for anyone on the market this year in property law:

Do you value diversity? At California Western School of Law, we pride ourselves on the diversity of our student body.  This year, around 50% of our incoming students are from diverse cultural and ethnic backgrounds.  We are committed to having a faculty that reflects our student body and our community.  

Do you want to influence legal education at an established but innovative law school?  California Western recently celebrated its 90th anniversary - but we have never been stale or ordinary.  We were on the forefront of innovative, experiential education three decades ago.  As a result, our graduates have a reputation for being uniquely practice-ready.  California Western continues to rethink the status quo in legal education – balancing a rigorous practical education with cutting edge scholarship and community service.  

Who are you?  We are seeking candidates with an entrepreneurial spirit who are eager to put their own stamp on a law school with an expanding faculty and many growth opportunities.

What do you want to teach?  We can prioritize your teaching preferences regardless of subject matter. 

Where do you want to live?  California Western is in downtown San Diego, California, literally overlooking the Pacific Ocean.  A city of breathtaking beauty, we have perfect weather, miles of beaches, and nearby mountains.  We are a family-friendly, diverse city with small city traffic and walkable neighborhoods. 

If you are excited about teaching a diverse student body, shaping the next iteration of an innovative and successful law school, and living in “America’s Finest City,” we want to hear from you.

Candidates should email their materials by September 30, 2016 to Professor Ken Klein at [email protected].  Candidates are encouraged to submit a statement to our Appointments Committee addressing how they can contribute to the goal of creating a diverse faculty. 

DNC Party Platform on Housing/Property Law

(Photo Credit: BizBash)

Now it's time to dive into the 2016 Democratic Party Platform. Here’s what the Democrats have to say about housing and property law:

Expanding Access to Affordable Housing and Homeownership

Whereas the Republican Presidential nominee rooted for the housing crisis, Democrats will continue to fight for those families who suffered the loss of their homes. We will help those who are working toward a path of financial stability and will put sustainable home ownership into the reach of more families. Democrats will also combat the affordable housing crisis and skyrocketing rents in many parts of the country, which is leading too many families and workers to be pushed out of communities where they work.

We will preserve and increase the supply of affordable rental housing by expanding incentives to ease local barriers to building new affordable rental housing developments in areas of economic opportunity. We will substantially increase funding for the National Housing Trust Fund to construct, preserve, and rehabilitate millions of affordable housing rental units. Not only will this help address the affordable housing crisis, it will also create millions of good-paying jobs in the process. Democrats believe that we should provide more federal resources to the people struggling most with unaffordable housing: low-income families, people with disabilities, veterans, and the elderly. 

We will expand efforts to address the lingering effects of the foreclosure crisis through programs like the federal Neighborhood Stabilization Program. We will also expand programs to prevent displacement of existing residents, especially in communities of color; create affordable and workforce housing; and preserve neighborhood-serving nonprofit organizations and small businesses. We will reinvigorate housing production programs, repair public housing, and increase funding for the housing choice voucher program and other rental assistance programs. And we will fight for robust funding to end homelessness in our cities and counties once and for all, through targeted investments to provide the necessary outreach, social services, and housing options for all populations experiencing homelessness. We will engage in a stronger, more coordinated, and better funded partnership among federal, state, and local governments to end chronic homelessness for millions of Americans. We will build on and expand President Obama's promising initiatives to end veteran and family homelessness in our country.

We must make sure that everyone has a fair shot at homeownership. We will keep the housing market robust and inclusive by supporting more first-time homebuyers and putting more Americans into the financial position to become sustainable homeowners; preserving the 30-year fixed rate mortgage; modernizing credit scoring; clarifying lending rules; expanding access to housing counseling; defending and strengthening the Fair Housing Act; and ensuring that regulators have the clear direction, resources, and authority to enforce those rules effectively. We will prevent predatory lending by defending the Consumer Financial Protection Bureau (CFPB). These steps are especially important because over the next decade most new households will be formed by families in communities of color, which typically have less generational wealth and fewer resources to put towards a down payment.

Guaranteeing Lesbian, Gay, Bisexual, and Transgender Rights

***We will also fight for comprehensive federal non- discrimination protections for all LGBT Americans, to guarantee equal rights in areas such as housing, employment, public accommodations, credit, jury service, education, and federal funding.

Ending Poverty and Investing in Communities Left Behind

***We will expand and make permanent the New Markets Tax Credit. We will improve safety by repairing crumbling infrastructure in communities that need it most as well as on tribal lands. And we will make investments in affordable housing near good jobs and good schools.

Building Strong Cities and Metro Areas

***We will provide resources to help overcome blight, expand Community Development Block Grant funds, provide more housing support to high-poverty communities, and build more affordable rental housing units.

Honoring Indigenous Tribal Nations

***We will strengthen the operation of tribal housing programs, and reauthorize the Indian Housing Block Grant Program. We will increase affordable and safe housing and fight to significantly reduce homelessness on and off Indian reservations, especially among Native youth and veterans.

Pursuing Our Innovation Agenda: Science, Research, Education, and Technology

Democrats value American innovation and believe it is one of our country’s great strengths. We will protect the intellectual property rights of artists, creators, and inventors at home and abroad. The entire nation prospers when we promote the unique and original artistic and cultural contributions of the women and men who create and preserve our nation’s heritage.

Democrats will fight against unfair theft of intellectual property and trade secrets. We will increase access to global markets for American intellectual property and other digital trade by opposing quotas, discriminatory measures, and data localization requirements.

Now let me make a few general comments and observations. First, the affordable housing plank talks about combatting “the affordable housing crisis and skyrocketing rents in many parts of the country.” I wonder if this means rent control legislation. How would they suggest we push back against rising rents? No doubt this is a huge problem, but some additional specifics would have been useful.

As to increasing the affordable housing stock, the platform says the party wants to “substantially increase funding for the National Housing Trust Fund to construct, preserve, and rehabilitate millions of affordable housing rental units.” Obviously this means more federal spending on housing, but what else? I noticed that a lot of the housing/property policy positions (more below) are about increasing funding. That's great but does that mean new spending or does that mean cut-backs in other housing (or non-housing) programs?

Also, regarding the goal of addressing “the lingering effects of the foreclosure crisis” I was curious to get more specifics. The HAMP program was pretty unsuccessful in refinancing the debt of many underwater American homeowners. Most people lost their homes in the wake of the crisis (when Democrats were in control of the White House and both houses of Congress), so what new programs would be offered? And…isn’t it a little too late?

The party also says it wants to “make sure that everyone has a fair shot at homeownership” but is short on details. The platform talks about “preserving the 30-year fixed rate mortgage” (is anyone suggesting that it’s going away?) and “putting more Americans into the financial position to become sustainable homeowners.” Credit is still tight since the crisis – and black and Hispanic borrowers are really feeling the credit squeeze. I would have liked to know more about how the party would reconcile the desire to provide access to credit with the need for mortgage lenders to utilize prescribed underwriting criteria. Also, noticeably absent from this discussion is anything about the future of Fannie Mae and Freddie Mac. How can anyone talk about housing finance and homeownership and not discuss the GSEs and their perpetual conservatorship? This is a noticeable absence from the party’s platform paper (and a real weakness in my view).

Also, it appears that we can look for gender identify and sexual orientation to be added to the Civil Rights Act and related federal statutes, as the party says they will “fight for comprehensive federal non- discrimination protections for all LGBT Americans.” This will, of course, include housing discrimination.

In the "Ending Poverty" section I found it somewhat strange (although perhaps it was implied) that although there was mention of expanding the New Market Tax Credit program (which is geared toward creating or expanding business opportunities in low-income communities) there was no mention of the federal housing tax credit program (LIHTC). I suppose the statement about making “investments in affordable housing” might arguably include that program, but if you’re going to mention one tax credit program by name why not mention the other if you’re talking about affordable housing.

When it comes to building/rebuilding communities, the platform says the party will "provide resources to help overcome blight, expand Community Development Block Grant funds, provide more housing support to high-poverty communities, and build more affordable rental housing units."Again, this is a little light on details and heavy on aspirations. The most substance here is that funding will increase. Perhaps the “build more affordable rental housing units” is meant to capture the Low-Income Housing Tax Credit program’s expansion? Will CDBG be made more flexible in terms of how it can be spent?

Lastly, the most substantive comments in the intellectual property rights section have to do with “opposing quotas, discriminatory measures, and data localization requirements.” As I mentioned in the RNC post, I would have liked to have seen more discussion of the digital economy here and the emerging challenging that those markets and innovations present.

As a final note, another item that featured prominently in the RNC's platform, but was completely absent from the DNC's, was any talk about eminent domain/the Takings Clause. In other words, discussion of the sanctity of property rights was not a main focus here (although I think you could say that, taken together, the property/housing platform for the DNC broadly includes that notion).

Please share your thoughts in the comments below!