PropertyProf Blog

Conference on Regulatory Issues in Property Law at Cambridge

On May 25-26, 2018, the Cambridge University Centre for Property Law will be hosting a conference on regulatory issues in property law.  The conference will bring together property law scholars and practitioners from around the world to discuss the most important contemporary issues facing the law of real property. Designed to bring together practitioners and academics, the conference seeks to promote purposeful discussion and build lasting relationships.

A series of panels on May 25 will be followed by a lecture series on May 26. Panel topics include: the role of property as a human and constitutional right; the relationship between property law and environmental law; and the role of real property law research at Universities and the Law Commission. The Saturday lecture series will see distinguished academics and senior members from practice and the judiciary discuss contemporary issues in real property law.

Confirmed speakers and panellists include Nicholas Hopkins (Law Commission), Martin Dixon (Cambridge), Gregory Alexander (Cornell), Susan Bright (Oxford), Tom Allen (Durham), David Elvin QC (Landmark Chambers), Emma Lees (Cambridge), Sjef van Erp (Maastricht), John Lovett (Loyola), Timothy Mulvaney (Texas A&M), Frankie McCarthy (Glasgow), Richard Moules (Landmark Chambers), and Colin Reid (Dundee). 

Tickets include both days of the conference with breakfast, lunch, and coffee; a three-course meal in the Old Hall of Queens’ College, Cambridge on Friday 25th May; and a closing drinks reception on Saturday 26th May. Places are limited and cost £225. To book your place, please visit:  

http://onlinesales.admin.cam.ac.uk/conferences-and-events/land-economy/regulatory-issues-in-real-property-law/regulatory-issues-in-real-property-law-2018.

Please direct all further enquiries to the conference convenor, Douglas Maxwell, Emmanuel College, St. Andrew's Street, Cambridge, CB2 3AP, dskm2 at cam.ac.uk.

JOB ANNOUNCEMENT: WASHBURN UNIVERSITY SCHOOL OF LAW

Aspiring deans: in light of the rise of our near and dear property prof friends Ben Barros (Toledo) and Hari Osofsky (Penn State) to decanal glory, see the following announcement from Washburn (via Andrea Boyack):

 POSITION ANNOUNCEMENT – DEAN, SCHOOL OF LAW 

Washburn University invites applications and nominations for the position of Dean of the Washburn University School of Law. The Law School is recognized for its outstanding teaching and faculty scholarship and its commitment to public service. It has a highly favorable student/faculty ratio, with an excellent student body drawn from a national pool. 

One of only two law schools in the state of Kansas, Washburn University School of Law is located in Topeka, the state capital. It was established in 1903 and has built a long tradition and legacy of providing an outstanding legal education. Washburn Law offers a broad-based curriculum in national and international law to students enrolled in the J.D., LL.M., and M.S.L. programs. It features six centers for excellence, nine certificate programs, and four dual degree programs. The thirty-two full-time faculty members, along with a strong cohort of adjunct professors, teach and conduct scholarship across a wide array of legal specializations. The Law School enjoys a dedicated staff and strong support from the community. 

For more than a century, Washburn Law has demonstrated its commitment to academic excellence, innovation, and diversity. Students choose from nearly 150 courses, including a variety of seminars and clinical offerings. From the first year through graduation, the comprehensive curriculum and innovative programs prepare students for success in the legal profession. For over forty years, Washburn’s Law Clinic has functioned as an in-house general practice law firm, providing students the opportunity to represent actual clients in eight practice areas. 

Washburn University School of Law has excelled in the categories most important to our students and alumni: a high-quality curriculum; an exceptional faculty; outstanding library resources; favorable graduation statistics, bar passage rates, and employment outcomes; and affordability. Among other accolades, Washburn University School of Law is ranked #2 in the nation for Government Law and is one of twenty law schools recognized by National Jurist as "Top Law Schools for Government Jobs." Washburn Law is also among the top seventeen law schools in the country for Business and Corporate Law programs. Washburn Law’s Trial Advocacy program is ranked in the top sixteen programs this year. 

Washburn Law’s six signature programs – the Center for Law and Government, the Center for Excellence in Advocacy, the Business and Transactional Law Center, the Children and Family Law Center, the Oil and Gas Law Center, and the International and Comparative Law Center – establish an extensive learning network for law students and experienced professionals. 

Our Legal Analysis, Research, and Writing program is consistently recognized as a top program by U.S. News & World Report, ranked 15th in the nation in the current edition. We are one of only a few law schools in the country with full-time, tenured and tenure-track legal writing professors who are involved in service and scholarship in the national legal writing community. 

WashLaw, initiated in 1991 by the Washburn Law Library, is a legal research portal that provides users with links to significant sites of law-related materials on the Internet. It is one of the premier legal internet research services available to a worldwide audience of practicing and academic legal experts. WashLaw also hosts a large number of law-related discussion groups. 

Washburn University seeks an exceptional candidate who has the vision, strategic acumen, entrepreneurial spirit, character, and presence to enhance the school’s existing strengths while moving the School of Law forward to a higher level of distinction. The Dean serves as the academic, fiscal, and administrative leader for the School of Law.

Conference at John Marshall on Murr

On Thursday, September 28, the John Marshall Law School Center for Real Estate Law will be hosting a a conference on the recent U.S. Supreme Court takings case, Murr v. Wisconsin.  The panel will include practitioners and members of industry, including John Groen (Pacific Legal Foundation), Steven Eagle (George Mason), John Echeverria (Vermont), Michael Allan Wolf (Florida), Janet M. Johnson (Schiff Hardin), David S. Silverman (Ancel Glink), and Steven M. Elrod (Holland & Knight).  The event runs from 8:30am to 1:00pm and is free of charge.  You can register for what sounds like a great day on takings jurisprudence online by going here.  

Save the Date: ALPS 2018 in Maastricht

Korngold on What Shopping Centers Owe to Free Speech

Gerald Korngold (New York Law School) has posted A New Framework for Achieving Free Expression and Speech in the Evolving and Reconceptualized Mall of the Twenty-First Century (Case Western Reserve Law Review) on SSRN. Here's the abstract:

Much has been written lately about the “death” of malls and large-scale shopping centers. The data show, however, that the great numbers of these malls and centers are not going extinct but rather are undergoing an evolution from the fortress-type, retail-focused mall of the 1970s to a twenty-first century model better attuned to current tastes of citizens and consumers. There are indeed significant challenges, including purchasing trends, troubled brick and mortar retail, increased online sales, and living choices. But despite some shock-value headlines, the data show that the number of malls and large centers continue to increase. Moreover, owners are reconceptualizing the mall and large centers to better position them for economic challenges. New manifestations include the mall as an “experience” beyond retail, lifestyle centers, and mixed-use, town center types of shopping centers. Coupled with some indicators that the move to cities has reversed and the unknown future of internet commerce, it appears that while the mall is evolving and must do so, quality properties are far from dead.

This article traces the rise of, current challenges to, and responses for the mall and large-scale shopping centers. It argues that these entities have been a central locus for community interactions and that their twenty-first century iterations may make them even more important. Malls and large-scale shopping centers have become central points at the expense of downtown shopping districts, where true public space was available for free speech and expression necessary for democratic government. This article shows that in drawing people away from the traditional downtowns, malls have consumed this key civic capital without compensating the municipality. In essence, this is no different than a developer utilizing community infrastructure such as local roads without providing compensation and creating externalities for the town to pay for. Thus, malls and large centers have an obligation to provide space for free public expression and speech in their developments.

First Amendment arguments for such space have been soundly rejected in the past. This article suggests new approaches to establish free expression in spaces in malls to address current needs and the likely increased civic centrality of some of “new” malls and shopping centers over this century. It suggests exactions, incentive zoning, and community benefits agreements as strong alternatives, and examines the advantages and disadvantages of each to the public, government, and mall developers/owners. Some of these solutions are mandatory — imposed by government on the developer — while others are more consensual. In addition to developing the legal methods for establishing civic free space, the article makes an additional contribution. By establishing the legal rules of the game, municipalities and developers will be able to negotiate consensual agreements that provide for public expression space but also protect the owner’s business goals; such agreements that align the parties’ interests may ultimately be the best solution.

New Book on New Ideas and the "State of Play" in Housing

This just in from Lee Ann Fennell (Chicago): Cambridge University Press has just published Evidence and Innovation in Housing Law and Policy (Lee Anne Fennell & Benjamin J. Keys, eds. 2017).  All chapters are downloadable in PDF as well as viewable in HTML through the Open Access version.

The impressive list of contributors include: William A. Fischel, David Schleicher, Richard A. Epstein, Ingrid Gould Ellen, Brian J. McCabe, Lior Jacob Strahilevitz, Georgette Chapman Phillips, Matthew Desmond, Stephanie M. Stern, Christopher Mayer, Ian Ayres, Gary Klein, Jeffrey West, Atif Mian, Amir Sufi, Patricia A. McCoy, Susan Wachter, Raphael W. Bostic, and Anthony W. Orlando. 

Happy reading!

LIVE BLOGGING: Keynote Symposium Lecture on the Wisdom of Flexibility in Trust Law

To finish up the day, Professor Lionel D. Smith of the McGill University Faculty of Law gave the Tamisiea Endowed Lecture in Wealth Transfer Law. His presentation, titled Give the People What They Want? The Onshoring of the Offshore, was about challenging the growing flexibility of trust law in on- and off-shore jurisdictions. Smith explained how offshore jurisdictions have tried to create flexible trust laws to meet client demands related to freedom of choice. Indeed, some of these new institutions have even been adopted in “onshore jurisdictions.” Smith noted that although freedom of choice is important, private law plays an important policy-balancing role in society.

Professor Smith stated that the offshore trust phenomena is a relatively new concept whereby legislatures enact or modify trust law in order to entice high net-worth individuals to migrate their wealth to these locales. For example, the Cayman Islands created the STAR trust and the British Virgin Islands created the Vista Trust—both aimed at drawing in the trust industry.

Smith explained that the there is an interaction between onshore and offshore trust law - “onshoring of offshoring.” One way this occurs is through how onshore judges interpret these offshore trust laws (like New Zealand judges hearing Cook Island trust disputes). For instance, he described a UK court with jurisdiction over Cayman Island disputes upholding an offshore asset-protection trust but making the debtor’s power of revocation a seizable asset (which the creditor could then exercise itself to get at the trust assets).

Smith explained that another way interaction happens deals with conflicts of laws principles, such as when a common law trust dispute would end up being litigated in a civil law court where trusts are not recognized. Smith also explained, by way of example, that with a star trust the beneficiaries have no right of enforcement—rather enforcement is left entirely to the trustee. Such a state of affairs does not (and cannot) exist under UK trust law.

The final way offshore innovations come into contact with the onshore is more direct—when onshore jurisdictions change their laws to reflect offshore conventions. An example of this is the abolition of the rule against perpetuities and the way several US states have created asset-protection trusts of their own.

Smith concluded by asking whether we should we concerned about onshore jurisdictions enacting these client-centered, off-shore trust concepts. “Should we give the people what they want?” He argues that, we cannot design the legal system around clients – there is more at stake. For instance, with a non-charitable purpose trust (although perhaps sometimes motivated by settlors who truly seek to do no harm) one creates a fund of property that is essentially unowned. Thus, the property is beyond a creditor’s reach yet functionally still under the control of the settlor. Here, as with the Star Trust under Cayman law, the trust obligations can only be enforced by the enforcer (the trustee), which the trustee can choose not to do.

In closing, Smith noted that although these statutory innovations were designed as a competition tool between offshore jurisdictions—onshore jurisdictions are now doing the same thing. He stated that in a race to the bottom, you give up a great deal. For instance, the Bahamas recently passed an executive entity trust whereby a legal person with no shareholders and no assets is created but which cannot incur liability for its actions—all done to create a customized creature to serve the purposes of a client. Smith finished by noting that by giving “the people” (the trust industry) what they want, we—in the longer term—give up so much more.

LIVE BLOGGING: Wealth Transfer Symposium @IowaLawSchool

Greetings from the “Wealth Transfer Law in Comparative and International Perspective” symposium, hosted by the Iowa Law Review and the American College of Trust and Estate Counsel Foundation today at the University of Iowa College of Law.

The first panel this morning featured a fascinating discussion of successions issues across borders. For instance, Naomi Cahn (George Washington) spoke about the rule that gifts made in wills to spouses are deemed to be revoked upon divorce. She critiques this approach, particularly the fact that it conclusively presumes this result would have been in line with the testator’s will. David Horton (UC-Davis) continued with a discussion of what he calls “partial harmless error” in will-making. He shows how the concept has arisen in American courts and uses an empirical study to explore the costs and benefits of adhering to drafting formalities.

Gary Spitko (Santa Clara) discussed lessons that can be learned in the US regarding the succession rights of unmarried, committed partners in light of Scotland’s law reform in this area. Jeffrey Schoenblum (Vanderbilt) enlightened the group on recent problems with cross-border estate problems in martial property, specifically discussing a 2010 case whereby all of the stock in a US corporate was included in the decedent spouse’s estate because, despite the decedent’s domicile being in Belgium and therefore under a community property regime, the court held that the “martial domicile” was in the UK where the community property regime is not applicable. Lastly, Mariusz Zalucki (Krakow & Rzeszow Universities) gave an overview of attempts in Europe to bring some uniformity to the law of inheritance. Excellent moderating was provided by Shelton Kurtz (Iowa).

Stay tuned in for more updates as the day continues!

Horton on the Predatory Probate Loan Industry

As we say in the ABA’s Real Property, Trust, and Estate Law Section, for those who work in the world of “death” (rather than “dirt”), I wanted to share a piece by David Horton and Andrea Cann Chandrasekher (both of UC-Davis) on a phenomena that they identified in 2016 known as Probate Lending (Yale Law Journal). We are all familiar with the buying of interests in lawsuits, but what has been less known is the practice of lending funds to heirs in anticipation of a pay-off from the heirs’ interest in an estate. As Horton and Chandrasekher point out in their empirical work, probate lending is both quite lucrative and predatory.

Building upon this work, David Horton recently expanded the research and posted a new article titled Borrowing in the Shadow of Death: Another Look at Probate Lending (William & Mary Law Review) to SSRN. For those interested in property and consumer finance, these two articles are incredibly important. Here’s the abstract:

“Fringe” lending has long been controversial. Three decades ago, demand for sub-prime credit soared, and businesses started to offer high-interest rate cash advances, such as tax refund anticipation loans, payday loans, and pension loans. These products have sparked intense debate and are subject to a maze of rules. However, in Probate Lending, 126 YALE L.J. 102 (2016), a co-author and I examined a form of fringe lending that has gone largely unnoticed: firms that pay lump sums in return for an heir or beneficiary’s interest in a pending decedent’s estate. Capitalizing on a California law that requires companies to file these contracts in probate court, we analyzed seventy-seven loans that stemmed from deaths in 2007. In this companion Article, I report the results of a study of two additional twenty-two months of probate records. My research provides hard evidence about the multi-million dollar inheritance-buying industry, including the prevalence of loans, characteristics of borrowers, how often lenders are repaid, and annual interest rates. I then use this data to compare probate lending to other species of fringe lending and to outline how courts and lawmakers should regulate the practice.

Engel on Subprime Mortgage Lending and the Local Government Problem

Kathleen C. Engel (Suffolk) has posted Local Governments and Risky Home Loans (SMU Law Review) to SSRN. Here's the abstract:

Municipalities from the Central Valley in California to Upstate New York bear the legacy of reckless mortgage lending. Foreclosed homes and toxic titles have caused blight and cost communities billions of dollars. Many cities tried to halt the risky loans by calling on state and federal legislators and regulators to intervene. Some even passed ordinances aimed at curtailing the high-cost loans that were destroying their neighborhoods. Their pleas were dismissed and their ordinances overturned. Ultimately, the subprime crisis played a central role in the great financial crisis when millions of people lost their jobs and, as a consequence, lost their homes too. As a result, municipalities have born the burden of empty, dilapidated homes that pepper once vibrant neighborhoods. A handful of cities have sued financial institutions, attempting to recover their losses. The lawsuits have been complex and expensive, and limits on municipal standing have dramatically restricted the relief cities can recover.

At the same time that cities were trying to stop abusive loans, most states and the federal government did nothing to curtail the making of unaffordable loans or the growing number of foreclosures. In the worst cases, governmental entities took steps that fueled risky lending. Later, when the subprime crisis morphed into the foreclosure crisis, state and federal governments failed to adequately assist municipalities.

I analyze the legal and regulatory problems municipalities encountered when they attempted to restrict high-risk mortgage loans and when they sought to recover for foreclosure blight. I argue that these problems are the result of a broader, more systemic issue: municipalities are severely limited in their ability to act against commercial interests that cause harm to their communities. In the case of risky mortgage lending, I contend that the sensible policy is to expand localities’ power to protect against actions by financial institutions that threaten or impose costs on communities and I introduce models for local regulation of home mortgage lending.

Infranca on Property Rights and Religious Freedom

John Infranca (Suffolk) has posted (Communal) Life, (Religious) Liberty, and Property (Michigan State Law Review) on SSRN. Here's the abstract:

Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalves, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.

This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.

McFarlane and Johnson on How We Think About Inclusionary Zoning

Audrey McFarlene (Baltimore) and Randall K. Johnson (Mississippi College) have posted Cities, Inclusion, and Exactions (Iowa Law Review) on SSRN. Here's the abstract:

Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction.

Drawing from the experience of Baltimore, Maryland’s inclusionary zoning ordinance, this Article considers the impact that the uncertainty in the law may have had on the type of inclusionary zoning ordinance adopted by the city. This Article argues that the conversation about inclusionary zoning, land use regulation, and exactions has been formulated in the context of imagery about development that leaves places like Baltimore out. The imagery in these narratives is of an individual landowner powerless in the face of government overreach. The reality is different in those places where land developers are not powerless and instead are often politically influential repeat players. Thus, the real problem presented may be not how to craft doctrine to prevent cities from asking too much of developers, but instead to craft doctrine that ensures cities do not give away too much.

Carlson on the Rise of a Federal Property Law

David Gray Carlson (Cardozo) has posted The Federal Law of Property: The Case of Inheritance Disclaimers and Tenancy by the Entireties (Washington & Lee Law Review) on SSRN. Here's the abstract:

The Supreme Court has issued two disturbing tax opinions which disrupt the notion that “property” (when used in federal statutes) refers to state-law notions. In Drye v. United States, the Supreme Court pierced the Arkansas fiction that inheritance disclaimers are retrospective in effect. Thus the Internal Revenue could claim that a tax lien attached to the pre-disclaimer inheritance. Disclaimer could not defeat this lien. In United States v. Craft, the Supreme Court pierced the Michigan fiction that a tenancy by the entireties does not belong to the individual spouses but, rather, the a corporate “marital” entity that is a separate legal person from the individual spouses. Thus, a tax lien encumbered an individual’s share of the entireties even though Michigan would aver that the individual spouse was not a property owner.

This article challenges the notion that tax cases are “special.” Rather, the claim is that these disturbing holdings apply in other federal contexts, especially in bankruptcy cases. Thus, the article claims that there is a federal law of property which is obliterative of state-law notions. The article therefore proclaims that, in bankruptcy, Butner v. United States (admonishing that state law provides the definition of property) is dead.