PropertyProf Blog

To Quiet Title or Not To Quiet Title: That is Mark Zuckerberg’s Question

This past week, an unlikely candidate stepped into the media spotlight of building walls to keep people out of particular property: Mark Zuckerberg.

Zuckerberg, CEO and founder of Facebook, does not regularly take political stances, but on occasion he does. For example, last Friday Zuckerberg posted on Facebook about his dismay in President Trump’s executive order halting admission to the United States for refugees and placing tightened vetting requirements for those coming to the United States from predominantly Muslim countries. As anyone reading this post likely knows, the executive order was blocked in part, such that foreigners entering the country would not be deported immediately upon arrival.

So how in the world did Zuckerberg manage to step in this s&*# show?

Zuckerberg didn’t exactly step into President Trump’s executive order woes, but the Facebook founder did get himself into his own hot water by proposing his own private walled off property. In case the chaos of President Trump’s first few days has drowned out other news, here’s the skinny to catch you up.

A couple of years ago, Zuckerberg purchased a lot of land in Hawaii to build a private sanctuary for his family. He paid lots of money, somewhere around $100 million, for a lot of beachfront property, approximately 700 acres. So far, this just sounds like lifestyles of the rich and famous,¹ so what gives? What Zuckerberg allegedly did not understand when he purchased the property was that a handful of Kamaʻāina families owned small parcels of land within the 700 acre Zuckerberg estate.

So just picture it: there’s Zuckerberg, his wife, their child, enjoying their massive estate, bar-b-queing on their backyard beach, and having a few local families crash the shin dig. To use Facebook terminology:

Having locals walking around his pad wasn’t exactly Zuckerberg’s idea of a good time, so his cracker jack legal team did what most zealous advocates with a rich client would do in Hawaii—they filed quiet title and partition actions which would force the handful of families who own parcels within Zuckerberg’s estate to sell off those parcels to the highest bidder at an auction. It doesn’t take a Ph.D in Economics to realize who the highest bidder at the auction would be.

While Zuckerberg was within his legal rights to file the action, he was on the wrong side of public opinion. The concern with quiet title actions like the ones Zuckerberg originally filed is that native families are usually forced off their property. The problem isn’t exclusive to Hawaii or the Zuckerberg’s of the world; quiet title and partition actions happen in lots of states. As Thomas Mitchell (Texas A&M) said recently on the topic, you tend to find this anywhere there is a marginalized group of individuals.  The problem of native Hawaiian landowners being bought out of their property was enough of an issue that the Hawaii Legislature adopted the Uniform Partition of Heirs Property Act which empowers native individuals to keep their land when threatened with quiet title and partition actions by giving native individuals legal tools such as the right of first refusal.  The Hawaiian law went into effect on January 1, 2017; Zuckerberg filed his lawsuits in December 2016, just barely missing the enforcement of the new law.   

As a Facebook junkie, Zuckerberg is used to getting more “likes” than he is angry protests, so upon a cry of public outrages at his legal maneuvering, he made the smart PR move—he apologized for his legal actions and dropped the lawsuits, promising to work out a better solution that would have local support. What will that solution be? Only time will tell, but hopefully it won't involve the building of any walls.

 

¹ _{Yes, many years ago President Trump was on the TV show.  Google it.}  

ALPS goes to University of Michigan

The cat is finally out of the bag:  ALPS will be going to the University of Michigan for its annual conference!  

The Association for Law, Property & Society (ALPS) is an organization for those engaged in scholarship on all aspects of property law and society.  Its annual meeting brings together scholars from different disciplines to discuss their work and to foster dialogue among those working in property law, policy, planning, social scientific field studies, modeling, and theory. Prior meetings have averaged approximately 150 participants from across the globe.  ALPS will hold its 8^th meeting at the University of Michigan in Ann Arbor, Michigan on May 19–20, 2017.

Submissions on any subject related to property law and the practices that shape property norms and institutions are welcome.  ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. 

ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 5 presenters, sometimes including not only papers but also films or multimedia outputs).  Submissions may be of full paper drafts and completed projects or early works-in-progress.  Submissions should include an abstract of no more than 250 words.  The abstract must include:   (1) the name of the submitting scholar, (2) the scholar’s institution, and (3) an email contact for the author or authors.  If submitting a fully formed panel, please insure that an abstract for each paper is included in the submission and that each abstract clearly identifies the fully formed panel the paper is a part of.

The deadline for submitting papers and panels is February 24, 2017, but registration for the conference will continue to be available after that date. Authors and panel proposers will be notified of the acceptance of their individual submissions or proposed panel by no later than March 10, 2017.

A discounted early registration rate of $150 is available until March 10, 2017. After that date, the registration rate is $175. The registration rate for full-time students (JD, PhD, or other program) is $50. 

To register and submit an abstract, click here.

Please direct all inquires to [email protected]. 

CFP: Fordham International & Comparative Urban Law Conference

From Nestor Davidson and the good folks over at the Fordham Urban Law Center:

4th Annual International & Comparative Urban Law Conference

Law and the New Urban Agenda

Cape Town, South Africa - July 17^th & 18^th, 2017

Call for Conference Participants

The Fordham Urban Law Center, in partnership with the University of Cape Town (UCT) and UN Habitat, is pleased to announce a call for participation in the 4^th Annual International and Comparative Urban Law Conference.  The Conference will be held on Monday July 17^th and Tuesday July 18^th, 2017 at UCT in Cape Town, South Africa.   

The Conference will provide a dynamic forum for legal and other scholars to engage diverse international, comparative, and interdisciplinary perspectives in urban law.  The Conference is open to urban law topics across a broad spectrum, such as:

• Structure and workings of local authority and autonomy
• Urban and metropolitan governance and finance
• Economic and community development
• Housing and the built environment
• Unique challenges facing cities in developing nations and the Global South
• Urban public health
• Migration and citizenship
• Urban equity and inclusion
• Sustainability and resilience

While the Conference will foster a broad scholarly dialogue about cities and legal systems in comparative and international perspective, we specifically invite submissions focusing on the role of law in the New Urban Agenda adopted this past October by the United Nations at the Habitat III Conference in Quito, Ecuador.  In particular, the Conference seeks to investigate legal tools to advance the New Urban Agenda in a manner that is democratic, sustainable and equitable.

PROPOSAL SUBMISSION:  Please submit a proposal (maximum 500 words) to Gilberto Vargas, Associate Director, Fordham Urban Law Center, at [email protected].  Please put "[name of proposed paper]" in the subject line of your email. If you have a draft paper, please include it with your proposal. Participants do not need to have prepared a formal paper in order to join the program.  The Center is also pleased to be able to award partial travel grants for this Conference, although funds are limited.  Please indicate the extent of your funding needs.  Deadline for proposal submissions:  March 6, 2017.

PUBLICATION:  The Urban Law Center has developed a book series compiling cross-cutting global perspectives on law and urbanism, with a core focus on comparative enquiry.  If you are interested in potential publication, please indicate this interest at the time of your proposal submission.

ABOUT THE URBAN LAW CENTER:  The Urban Law Center at Fordham Law School in New York City is committed to investigating the role of the law and legal systems in contemporary urbanism through scholarship, pedagogy, programming, and applied research partnerships. Please visit http://urbanlaw.org for more details about the Center.

ABOUT UCT:  Founded in 1829, The University of Cape Town is the oldest university in South Africa. UCT aspires to be the premier academic meeting point between South Africa, the rest of Africa and the world. Please visit https://www.uct.ac.za/ for more details about UCT.

Call for Contributions: Challenging Traditional Notions of Property in Land Use Planning, Journal of Law and Social Policy

(With thanks to Nick Blomley for sharing this)

CALL FOR CONTRIBUTIONS

Special Volume: Challenging Traditional Notions of Property in Land Use Planning, Journal of Law and Social Policy

The Journal of Law and Social Policy (JLSP) seeks to encourage debate and dialogue on important issues at the intersection of law and society, particularly as they impact low income individuals and disadvantaged communities. In addition to scholarly articles, the Journal encourages critical commentaries, reflective essays—including work that speaks to the impact of law and social policy on human experience—and book reviews for the Voices & Perspectives section of each volume. Non-traditional and creative works are encouraged, for example creative non-fiction and poetry.

In Spring 2017, the JLSP will be publishing a special volume highlighting contributions made to an interdisciplinary workshop on property and planning law. The premise of the workshop was that property is rooted in a complex set of social relationships with a plurality of legal orders and a messy collection of interests, with papers exploring alternative ownership models, intersections of indigenous and municipal interests, and the politics of planning.

The JLSP is now welcoming contributions to the Voices & Perspectives section that relate to the theme of the special volume. In particular, we are looking for essays, interviews, photography, art or other creative works exploring the relationship between property and planning. Possible contributions include non-fiction essays on expressions of resistance, representative displays of place-making, interviews with activists and community leaders, or mapping and photographic imaging.

The deadline for submissions is Monday, February 20, 2017.

To submit your work or to ask any questions, please contact special volume editors Alexandra Flynn ([email protected]) or Donald Leffers ([email protected]), or JLSP Editor-in-Chief, Janet Mosher ([email protected]).   

Maps of the day: the new winter

I just came back inside from helping dig my neighbor's car out of the snow pile in front of his house. The last two weeks have provided two snow days for the local school district--one because of too much snow, and yesterday because of too much melting snow. And Boise, which isn't particularly used to significant snow fall, 300 miles to the south of my home in North Idaho, has experienced six snow days of its own.

These are the types of conditions that often cause the cynical to say, "I could use some of that climate change right now."

But for parts of the West, this apparent bounty of snow hides one of the most significant changes will we face in a climate-altered future.

These maps reflect current data from the NRCS SNOTEL sites across Idaho, which measure precipitation and snow pack, and help predict water availability for the coming year. The first is how much total precipitation has fallen in the current water year (since Oct. 1) as a percent of 1981-2010 median. That map shows well above normal amounts of precipitation. 

But the real story is in the second map, which shows snow water equivalent in the current snow pack. This is a more useful measure of water availability, since is reflects the amount of water stored in our snow pack reservoirs--water that will be available next summer as the snow pack melts. That map tells a different story, with most of North Idaho well below normal, notwithstanding the piles of snow in our front yards. Much of that above average precipitation fell in the early winter as rain, and has already made its way downstream to the ocean.

In the lower elevation mountains of the Pacific Northwest, climate change will raise snow levels, bring more rain and less snow, and shift the peak of the hydrograph to earlier in the year.  The snow reservoirs will hold less water, and less water will be available everyone: farmers, cities, hydroelectric dams, and anadromous fish. 

And as these maps demonstrate, we are seeing those effects today. More rain, less snow, and a less predictable water future.

Harvard Law School Postdoc Fellowship Opportunities

From our friends at the Harvard Law School, check out these great opportunities for up-and-coming property law scholars:

Postdoctoral Fellowship in Private Law
The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property
The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.

Pomeroy on Property Law and Air Rights

Chad J. Pomeroy (St. Mary's) has posted All Your Air Rights Belong to Us (Northwestern Journal of Technology and Intellectual Property) on SSRN. Here's the abstract:

Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection—that of air rights and invasion of privacy. This is a timely topic due to the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.  

This is not as straightforward a thesis as one might perhaps think because both property and privacy rights have a murky past and have gone through iterative formulations as society has sought to achieve the right balance between the public and private spheres. Privacy has historically focused on expectations of privacy, and property rights have traditionally provided such expectations, but the legally recognized nature of each has not changed over time to keep pace with technological innovation. This has led to a situation where the kinds of rights and causes of action that have traditionally protected individuals no longer suffice in a variety of circumstances.

In particular, the use of drone technology to engage in sophisticated surveillance presents significant challenges to our existing legal framework. Part I of this Article examines the history of privacy law in some detail, and Part II does the same with respect to the common law of airspace property rights. When these two areas of the law are examined in tandem, it becomes apparent that drone surveillance violates rights that society generally wants to protect and that society has historically protected. That protection, however, is now lacking. There is some reason for the failure of the law to keep up with this type of new technology, and Part III examines the historical “aircraft exception” that many may now believe justifies the law’s acquiescence in the face of drone surveillance. Ultimately, though, this Article concludes that this common law exception is not applicable to drones and that, as such, the law should adapt to protect the public from drone surveillance. Part IV concludes this analysis by making a number of recommendations that state and federal legislatures and various administrative agencies would do well to consider when passing laws and promulgating rules regarding drone technology.

Berger on the Fiscal Wisdom of Regulatory Takings Compensation

Bethany Berger (Connecticut) has posted The Illusion of Fiscal Illusion in Regulatory Takings (American University Law Review) on SSRN. Here's the abstract:

In January 2016, the Supreme Court granted certiorari in Murr v. Wisconsin, the first regulatory takings case to be decided by the Roberts Court. Because regulatory takings doctrine has little direct support in constitutional text, history, or precedent, arguments to expand regulatory takings rest heavily on policy grounds. This Article argues that the central efficiency argument for expansion — often dubbed “fiscal illusion” — is based on a surprising mistake. Without compensation, the argument goes, governments operate under a fiscal illusion, because from their perspectives, their actions are costless. The problem is that this argument makes no sense as a description of the actual costs to governments.

Taxation is the main way governments get revenue, and most taxes depend on the value of property and its permissible uses. If governments restrict land so as to reduce its value or the income produced by it, its residents, or its patrons, they generally already feel the loss in their budgets. If the restriction creates benefits, those too are reflected in tax revenues. While there are limitations to the accuracy and efficacy of the tax signal, efficient regulations should roughly have a net positive effect on governmental revenues, while inefficient ones should have a net negative effect. Fully compensating owners, in contrast, does not lead the government to accurately internalize societal costs — it rather adds a new and much larger cost. Because this cost usually far exceeds revenue gains, governments may rationally forgo even efficient regulations. Owner compensation, in other words, does not correct fiscal illusion. It creates it. 

Revealing the illusion of fiscal illusion leaves standing much older arguments that compensation is required as a matter of fairness. But by clearing away the main efficiency justification for direct compensation, this Article permits clearer-eyed assessment of whether and to what extent fairness may require compensation, and prevents measures in the name of efficiency that in fact undermine it.

AALS Property Law Section Works-in-Progress Program

Greetings from AALS! Yesterday I had the pleasure of attending the Property Law Section's works-in-progress program here in (what is finally today) sunny San Francisco. Donald Kochan (Chapman) kicked off the event with an introduction of the speakers and explained that the purpose of the session was to give faculty an opportunity to share their early to mid-stage reseach projects with senior colleagues in the field. Each presenter was paired with a mentor who commented on the paper and gave feedback.

First, Gregory Ablavsky (Stanford) shared his recent project "The Rise of Federal Title" that looks at the problems of title and land rights in the development of the American West. He notes in his historical piece that although the federal government has typically been viewed as distributing lands and settling land disputes, it actually played a much larger role than is currently appreciated when it came to the actual development of the American system of entitlements to land.

Next was Molly Brady (Virginia) who shared her research on the damagings clause in various state constitutions. She noted that the origins of the provision relate to states wanting to provide a remedy for situations where private property was physically damaged by public works projects (such as street grading). In this work she examines the untold story of the damagings clauses, and notes that state courts have taken a very narrow approach to their application due largely to the influence of federal takings law.

John Infranca (Suffolk) then explained his current work-in-progress--"(Communal) Life, (Religious) Liberty, and Property"--, which examines the role that the concepts of freedom of religion and the right to property play in the recognition of rights more broadly. He explains and then unpacks the ways in which religious freedom and property rights are generally viewed as having a larger role in shaping norms and group rights.

Vanessa Casada Perez (Texas A&M) shared her law and economics work that explores the role that sharing economy platforms play in dealing with issues of parking. She outlines whether local government decisions to ban such platforms/companies can be justified under a public trust theory of public spaces. She then analyzes the up- and down-sides of local government regimes that seek to prohibit the use of pubic spaces for profit-making enterprises using sharing economy innovations.

Lastly, Thomas Simmons (South Dakota) gave a presentation on his research into homestead laws, including exemptions from seizure by creditors and the rights of spouses under martial property regimes. His project gives special attention to the evolution of homestead laws from statute to state constitutional provision.

Great job to the Property Law Section for a really interesting and engaging program!