PropertyProf Blog

Fischel on Homevoters and the Growth Machine

Bill Fischel at Dartmouth's Department of Economics has posted The Rise of the Homevoters: How the Growth Machine Was Subverted by OPEC and Earth Day on SSRN. Bill prepared the paper as part of a conference at the Kreisman Initiative on Housing Law and Policy at the University of Chicago. It will be included in a publication emerging from that conference. Here is the abstract:

In the 1970s, unprecedented peacetime inflation, touched off by the oil cartel OPEC, combined with longstanding federal tax privileges to transform owner-o ccupied homes into growth stocks. The inability to insure their homes’ newfound value converted homeowners into “homevoters,” whose local political behavior focused on preventing development that might devalue their homes. Homevoters seized on the nascent national environmental movement, epitomized by Earth Day, and modified its agenda to serve local demands, thereby eroding the power of the prodevelopment coalition called the “growth machine.” The post-1970 shift in the American economy from industrial employment to knowledge-based services rewarded college graduates and regions that specialized in software and finance. Residents of suburbs in the larger urban areas of the Northeast and West Coast used existing zoning and new environmental leverage to protect the growth rate of their home values. The regional spread of these regulations has slowed the growth of the economy and perpetuated regional income inequalities. I argue that the most promising way to modify this trend is to reduce federal tax subsidies to homeownership.

 

Happy Thanksgiving from Property Prof Blog!

Happy Thanksgiving from all of us at Property Prof Blog! May you be with family, friends, and loved ones today, eating too much turkey, tofu-rkey, cornbread dressing, green beans, mashed potatoes, sweet potatoes, pumpkin pie, pecan pie, and, as it turns out, kale! Yes, you read that right: kale is allegedly “king” this Thanksgiving, at least according to the American Farm Bureau Federation. This year, Americans purchased more kale for Thanksgiving than they did mashed potatoes, brussel sprouts, or tofu. Collard greens still outrank kale for Thanksgiving food purchases, but not by much. This means that when I teach Property next semester and talk about agricultural lands and crops as property, I’m using kale as my example crop.

Happy Turkey (Tofu-rkey) Day to all!

Property and SEALS

It may be chilly where you are, but the bright, sunny SEALS is just around the corner! From July 31 to August 6, legal scholars of all disciplines will gather in Boca Raton, Florida to discuss the finer points of the law and enjoy a few cocktails in the sun. Property scholars, fear not, there will be plenty of discussion groups and panels for you! The Property Law team, lead by Marc Roark (Savannah), Al Brophy (UNC), Jamila Jefferson-Jones (UMKC), and myself (Tulane), have put together the following discussion groups and panel proposal for SEALS. If you are interested in participating in any of the below groups/panels, please email Marc Roark.

Discussion Group 1: Property Law before the Current Court
During the Fall 2016 term, SCOTUS has taken on several property related cases.  Murr v. Wisconsin presents a takings challenge to conventional zoning rights in the face of potential vested rights and the relevant parcel question.  Fair housing reemerges in two consolidated cases before the Court: Bank of America v. Miami and Wells Fargo & Co. v. Miami. And Venezuela v. Helmerich & Payne International, seeks to clarify when a foreign government may be sued in U.S. courts for seizing property located in that country but owned by a U.S. firm.  Property scholars will discuss the impact of these decisions on property jurisprudence, theory, and function.  

Discussion Group 2: Property, Retroactivity, and Obergefell
In what is thought to be the first decision of its kind in the nation, a judge in Bucks County Pennsylvania recently issued a ruling allowing retroactive recognition of a same-sex common-law marriage. Dr. Sabrina Mauer and Dr. Kimberly Underwood, a gay couple entered into a common law marriage in the early 1990s.  They were married in a ceremony in 2015 and three months later, one spouse died.  The court held that the marriage actually dated back to the 1990s, which had a number of impacts for Social Security rights and other property that would be the surviving spouse's.  In striking contrast, an Alabama judge undid a succession distribution of $1 million because at the time the man died, Alabama didn't recognize same sex marriage, so his spouse could not inherit.  The deceased's mother inherited about $1 million.  Post-Obergefell, the surviving spouse successfully got the succession reopened and a judge said the deceased's mother had to pay the surviving spouse the $1 million she had received because it was rightly owned by the surviving spouse. This discussion group will consider the retroactivity of Obergefell and how that can impact property rights, be they inheritance, marital/community property, etc.

Panel: Property and Protests
Protests often run against established property regimes, whether they are private property rights, zoning and ordinance enforcement by cities, or claims for property.  This panel will present papers around the question of protest as they impact property claims.  

Marsh, Way, & Wood Share Forthcoming Property Law Case Study Supplement

Friend of the blog and former editor Tanya Marsh (Wake Forest) recently published a property law supplement with co-authors Heather Way (Texas) and Lucille Wood (Texas). Here's the description:

The book is written by three transactional lawyers/law professors who believe that the backwards-looking approach of studying property law through reported appellate cases is incomplete.  Using the case studies in the book, students are challenged to apply property doctrines prospectively and to think about identifying and addressing client problems in a way that they are not typically challenged to do so during the first year of law school.

The book contains eight case studies that are drawn from our practice, so they are more textured and realistic than artificial hypos.  Each case study highlights the legal doctrines that students will use and clearly sets forth the learning objectives of the chapter.  For example, Chapter 4: The Case of the Heir's Property includes a case that Heather and Lucy handled in Texas - their client lived in a house that he owned as a tenant in common with other members of his family following several generations of title passing through intestacy.  The problem asks students to draw from what they have learned about adverse possession, tenancy in common, and intestate succession.  The case study is divided into multiple parts that each focus on discrete tasks or skills (i.e. determining present ownership of the house, adverse possession analysis, etc.) allowing professors to customize the problem.

A comprehensive teacher's manual is being completed and will be available before the end of the year.  Interested professors can request a comp copy by clicking here. The book will cost $30. 

CFP: Institute for Law Teaching and Learning’s Summer 2017 Conference

This just in from our friends at the University of Arkansas at Little Rock William H. Bowen School of Law. Below is a Call for Proposals for the Institute for Law Teaching and Learning’s Summer 2017 Conference, “Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302.”  The conference will take place July 7-8, 2017 at the University of Arkansas at Little Rock William H. Bowen School of Law.  

The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,”  such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.”  The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills.  The deadline to submit a proposal is February 1, 2017. 

For more information, click the following: Download CFP Summer 2017 Bowen Conference_PDF

Zale on Regulation, the Sharing Economy, and Issues of Scale

Kellen Zale (Houston) has posted When Everything is Small: The regulatory Challenge of Scale in the Sharing Economy (San Diego Law Review) on SSRN. Here's the abstract:

The sharing economy — the rapidly evolving sector of peer-to-peer home-sharing and ride-hailing transactions facilitated by platforms like Airbnb and Uber — offers the potential for economic growth, greater sustainability, and expanded access for underserved groups. But the massive number of small-scale activities facilitated by these platforms is also resulting in negative cumulative impacts and exposing regulatory fractures, from the loss of long-term rental housing to discrimination against protected classes to increased burdens on public infrastructure.

This Article contends that scale is a defining feature and fundamental challenge of the sharing economy. Small may be beautiful, but when everything is small, the regulatory challenge is immense. Small-scale activities that once fit the criteria for light or no regulation are occurring at scales at which non-regulation makes little sense. As the sharing economy becomes an increasingly large segment of the public accommodations and transportation markets, the traditional ways we distinguish between activities that we should regulate and those we treat with regulatory leniency no longer fit. Existing regulatory systems, from civil rights and environmental law to consumer protection and tax law, do not map neatly onto the configuration of scale in the sharing economy. This regulatory misfit threatens to result in inequitable and discriminatory outcomes across the sharing economy.

Effective governance of the sharing economy requires a more complete understanding of the role of scale. This Article investigates the implications of scale in the sharing economy, focusing on the prominent sectors of home-sharing and ride-hailing. The Article unpacks how massive numbers of home-sharing and ride-hailing activities are producing negative cumulative impacts and exposing regulatory fractures, which threaten to undermine a range of important public policies — including affordable housing, civil rights, and consumer protection — and considers possible legal regimes for responding to scale.

Whitman on Transferring Mortgage Notes

For all you fellow mortgage finance lovers out there, Dale A Whitman (Missouri-Emeritus) has posted Transferring Nonnegotiable Mortgage Notes (Florida A&M Law Review) to SSRN. Per Dale, the article discusses not only what is known about the legal requirements for transferring nonnegotiable notes, it also discusses at length the following additional topics:

1. The history and background of the Holder in Due Course doctrine.
2. How to identify whether a note is negotiable (including notes secured by FHA and VA mortgages)
3. How negotiable notes (and the mortgages securing them) must be transferred
4. The impact of UCC Article 9 on transfers of both negotiable and nonnegotiable notes.

These topics were (and remain) super important as we continue to study the aftermath of the housing crisis and the ways in which financial institutions used the foreclosure system. The linkage between commercial law and property law is not often well-understood, but Dale does a great job showing the connection. Great work, Dale!

SCOTUS Hears Oral Arguments on Novel Fair Housing Act Claim by City of Miami

I know everyone has been paying close attention to the presidential race, but there was something else important happening yesterday: SCOTUS heard oral arguments on whether municipalities can bring claims under the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).

The question originates from a lawsuit filed by the City of Miami against Bank of America that was consolidated with another case where the city sued Wells Fargo. In both cases the city argued that these financial institutions had engaged in a long and targeted practice of making risky loans to minority borrowers (loans that were 5x more likely to result in a default than loans made to white borrowers). Further, the city alleged that in the wake of the 2008 crisis the banks refused to allow these distressed homeowners to refinance or engage in a loan modification, even through they routinely offered such deals to similarly situated white borrowers.

The scope of who can serve as a party under a Fair Housing Act claim raises interesting policy issues. The city argues that it is within the "zone of interest" for standing purposes because the discriminatory loan practices created large numbers of defaults and foreclosures, which in turn resulted in the proliferation of abandoned and blighted properties that hit hard the bottom line of cities when they needed resources the most. 

The suit was initially filed against BoA in July 2013 and against Wells Fargo in July 2014, but both were dismissed by the district court for lack of standing and on the basis that the city had failed to prove that the bank's behavior was the proximate cause of the harm alleged. In September 2015, the 11th circuit remanded both of these cases for further proceedings on the proximate cause determination and held that the city did indeed have standing under the Fair Housing Act. 

Now it's up to the eight justices to decide. There are interesting arguments on both sides. The city asserts that local governments are in a unique position to guard against housing discrimination and that because of the collective interest that they represent cities should be allowed to use tools like the Fair Housing Act to police bad behavior. Incidentally, this is in line with a recent article by Kathleen Engel at Suffolk University regarding local government responses to the housing crisis. The financial institutions, on the other hand, argue that the city's position would take the scope of the Fair Housing Act too far and that the connection between the loss of property tax revenues and discriminatory lending practices is too attenuated and specultaitve in this case to provide relief to the city.

Stay to tuned to see what happens!

Property and Voting Rights

As Kate McKinnon (playing Hillary Clinton) said on Saturday Night Live last week, “We can’t tell you who to vote for, but on Tuesday, we all get a chance to choose what kind of country we want to live in.”

I, too, reflect what McKinnon said—vote for whomever you want, but by all means, go out and vote. And while you are voting, remember the history of voting rights and how voting rights historically have been tied to property ownership. Voting rights in the colonies before the American Revolution were extended only to “freeholders,” freeholders being white men who owned land worth a certain amount of money. After the American Revolution, most states continued to include a requirement that voters owned property, believing that a voter should have an “economic stake” in society before he could be trusted to vote.   (Shout out to Vermont for being in 1791 the first state to eliminate all property ownership requirements for voting.) For an interesting history on how property ownership impacted voting rights, read now-Professor Jacob Katz Cogan’s (Cincinnati) student note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 Yale L.J. 473 (1997).

Today, whether you own property does not impact whether you can vote for Clinton or Trump, and that is a positive change for the country. So if you haven’t already, go exercise your right to vote today and be happy you don’t have to prove how much land you own in order to cast your ballot.

Happy Election Day!  Go vote!  

In Memory of Andre van der Walt

Friends,

I just received the sad news of the passing of Andre van der Walt. Andre was the South African Research Chair in Property Law and a Distinguished Professor of Law at Stellenbosch University in South Africa. A champion of progressive theories of property, Andre made major contributions to South African constitutional property rights law and educated many generations of lawyers and property scholars. His many excellent books, articles, chapters, and other contributions can be found here.

He will be deeply missed.

Professors' Corner: Rethinking Rights of First Offer, Rights of First Refusal, & Options

Professors’ Corner

 

A FREE monthly webinar featuring a panel of law professors, 

addressing topics of interest to practitioners of real estate and trusts/estates

 

Members of the AALS Real Estate Transactions Section are welcome and encouraged to register and participate!

Register at http://ambar.org/ProfessorsCorner

 

Tuesday, November 8, 2016

12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific

 

Rethinking Rights of First Offer, Rights of 

First Refusal, and Options

 

Speakers:

• Kathryn (“Kappy”) Allen, Graves Dougherty Hearon and Moody, Austin, TX
• Carl Circo, Ben J. Altheimer Professor of Legal Advocacy, University of Arkansas School of Law
• Beat Steiner, Holland & Hart LLP, Boulder, CO

Moderator:

• Wilson Freyermuth, John D. Lawson Professor of Law and Curators’ Distinguished Teaching Professor, University of Missouri School of Law

 

This program takes an in-depth look at some troublesome issues in the world of rights of first offer (ROFOs), rights of first refusal (ROFRs), and options to purchase real estate. The presenters will highlight the most common legal issues that make these three forms of preferential purchase rights far more complicated and risky than most clients realize. The program provides practical tips on how to manage the common challenges lawyers face in:

 

•        negotiating and drafting the terms of  preferential purchase rights;

•        enforcing preferential purchase rights through litigation;

•        identifying title insurance issues commonly associated with preferential purchase rights;

•        and addressing title issues related to property subject to a preferential purchase right.

 

Note:  This program was first presented by the speakers, along with Wilhelmina (“Willie”) Kightlinger, Senior Vice President of Old Republic National Title Insurance Company, at the Spring 2016 conference of the American College of Real Estate Lawyers (ACREL). Materials from that conference were published in the ACREL Papers Spring 2016, available at www.ali-cle.org.

 

Register for this FREE webinar at http://ambar.org/ProfessorsCorner.

 

Sponsored by the ABA Real Property, Trust and Estate Law Section

Legal Education and Uniform Laws Group