PropertyProf Blog

Mandelker on Land-Use and PUDs

Daniel Mandelker (Washington University) has posted New Perspectives on Planned Unit Developments (ABA Journal of Real Property, Trust, and Estate Law) on SSRN. Here's the abstract:

Planned unit developments, also called planned communities, are a major development type. Originally cluster housing projects with common open space, they can be planned today as infill in downtown areas or as a major master-planned community. They require discretionary review, are often dominant in the zoning process, and present a challenge to the zoning system. A threshold question is how municipalities should zone for planned unit developments, and this Article discusses conditional use, base zone, and rezoning alternatives.

This Article next discusses the zoning review process for these developments, which must operate fairly and produce acceptable decisions. Alternatives that can avoid or supplement discretionary review are considered next, and this Article concludes with a discussion of affordable housing as a social responsibility.

REAL PROPERTY SCHMOOZE @TEXAS A&M: Bridging the Urban Versus Rural Divide

It's that time of year again: the second annual Real Property Schmooze at the Texas A&M University School of Law. Check out the announcement below (courtesy of friend-of-the-blog Lisa Alexander):

The flagship event of the Program in Real Estate and Community Development Law at Texas A&M University School of Law, the Real Property Law Schmooze, is an annual event which affords property law scholars the opportunity to share works-in-progress or early-stage ideas with other leading property law scholars at Texas A&M University and beyond. Last year, the Program’s inaugural year, the Program invited 22 external legal scholars from law schools in the southern United States to the 2017 Schmooze.

The 2018 “Bridging the Urban Versus Rural Divide” Real Property Law Schmoozeinvites 17 legal scholars with expertise in either urban or rural property law to present unpublished works-in-progress or early-stage ideas that are relevant to the theme of how law can help resolve urban and rural challenges and bridge the urban versus rural divide. We welcome papers on a broad range of urban and rural property law challenges including, but not limited to, housing law and policy, land tenure, land loss, land use, zoning, the environment, and property law and theory, as well as papers that address international and comparative urban and rural property law issues. Vie

Notably, our Program in Real Estate and Community Development Law is coordinating with Texas A&M University School of Law’s Faculty Speaker Series to host two great property scholars who are also participating in the Schmooze:

Professor Joseph William Singer, the Bussey Professor of Law at Harvard Law School, will be the Distinguished Real Property Law Keynote Speaker on Friday, February 2, 2018. He will present "Things Invisible to See: State Action and Private Property." This Faculty Speaker Series talk will be open to the entire law school, whereas the Schmooze is an invitation-only workshop. 

Professor Bernadette Atuahene of IIT-Chicago Kent College of Law will ​present to the Texas A&M Law Faculty at the Faculty Speaker Series on Thursday, February 1, in addition to​ speaking on "Taxed Out: Illegal Property Tax Assessments and the Epidemic of Tax Foreclosures in Detroit" ​at the Schmooze on Saturday, February 3, 2018.

Click here for the full schedule. Looks like a superb event again this year!

ALPS and Other European Property Law Conferences this Summer

Get ready to pack your light summer jackets:  the annual Association of Property, Law, and Society (ALPS) conference heads to Maastricht this summer!  The 9th annual ALPS meeting at Maastricht University, The Netherlands on May 31-June 2, 2018.  Average June temperature for Maastricht:  61 degrees Fahrenheit (16 degrees Celsius).  Personally, this will be a welcome change from the New Orleans heat wave that begins to hit around that time.    

The call for papers for ALPS is open.  Abstracts of 250 words should be emailed to alps2018 at maastrichtuniversity.nl.  The deadline for submitting papers and panels is February 28, 2018 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 on a rolling basis and, in all cases, by no later than March 9, 2018.  For more information on the ALPS conference, please visit https://www.maastrichtuniversity.nl/events/association-law-property-society-9th-annual-meeting.  

As luck would have it, if you are flying to Europe for ALPS this summer, there are not one, but two other property law conferences you can attend.  Three property law conferences for the price of one international plane ticket.  This is a deal too good to pass up!

First, the Cambridge Centre for Property Law is hosting a conference on May 25 and May 26.  The conference will bring together property law scholars and practitioners from around the world to discuss important contemporary issues facing the law of real property.  A number of great property law scholars are slotted to be at the Cambridge Centre for Property Law conference including, but not limited to, Greg Alexander (Cornell), Ken Reid (Edinburgh), Nicholas Hopkins (Law Commission), Sue Bright (Oxford), Sjef van Erp (Maastricht), Tim Mulvaney (Texas A&M), John Lovett (Loyola), and many, many, many more!  To book a spot at the conference, go to http://onlinesales.admin.cam.ac.uk/conferences-and-events/land-economy/regulatory-issues-in-real-property-law/regulatory-issues-in-real-property-law-2018.  If you have any questions about the conference, please contact Douglas Maxwell at dskm2 at cam.ac.uk.

Second, the 9th edition of the Young Property Lawyers Forum (YPLF) - which is a global network of young property lawyers - co-founded by Dr. Jill Robbie (Glasgow) and Dr. Bram Akkermans (Maastricht) will be held in Maastricht on Monday, May 28 and Tuesday, May 29.  The YPLF is a conference especially for young researchers (those working on a PhD or within five years of finishing a PhD) and where more senior property law scholars attend, comment and actively participate, but do not present themselves.  If you are a junior researcher in property law and would like to participate in the YPLF 2018 conference, please send an abstract of no more than 300 words to the organisers at yplf at yplf.net by February 28, 2018.

Lovett On All Things Property

John Lovett (Loyola-NOLA) has recently posted a number of interesting pieces on SSRN. Check them out below:

Into Centuries of Centuries: Reflections on Marc R. Poirier (1952-2015) (Journal of Law, Property, & Soc’y):

This essay reflects on the contributions to property law scholarship and teaching made by Marc R. Poirier (1952-2015), Professor of Law at Seton Hall School, over the course of his twenty-five year career in the legal academy. Marc Poirier was a distinguished scholar and great friend to many in the property law world. The essay recounts Poirier’s formative experiences as a student at Harvard Law School and in practice in Washington, D.C. It details his teaching innovations and his many institutional contributions to Seton Hall and the wider legal academy. It also provides a brief overview of Poirier’s remarkable range of scholarship on property law, emphasizing his syncretic, inter-disciplinary approach to property law and theory, environmental law and law dealing with gender identity and human rights. It draws attention to Poirier’s iterative, generous, and, above all, caring approach to scholarship, teaching and life.

Disseisin, Doubt, and Debate: Adverse Possession Scholarship in the United States (1881-1986) (Texas A&M Law Review):

This article addresses how U.S. and occasionally English property scholars discussed, analyzed and understood the doctrine of adverse possession between 1881 and the early 1980s. It fills a gap in current American property law scholarship by taking a deep, historiographic approach to a century of American adverse possession discourse, beginning with the ruminations of Oliver Wendell Holmes on possession in The Common Law (1881) and culminating in the famous tournament of scholars featuring R.H. Helmholz and Roger Cunningham (1983-86).

The article identifies and analyzes several major themes that emerge throughout this long century of adverse possession discourse. Those include: (1) constant debate over the fundamental doctrinal nature of adverse possession; (2) frequent attempts to distill the social, economic and systemic purposes served by the doctrine; (3) preoccupation with the Americanization of the English common law of adverse possession, and (4) attentiveness to incremental developments in U.S. courts and modest attempts to influence that development, occasionally interrupted by more radical prescriptive and theoretical critiques.

The article demonstrates that American adverse possession scholarship during this period was generally endogenous, apparently uninterested, with a few notable exceptions, in any social, economic or market factors occurring outside the academy or the narrow confines of adverse possession case law. This article recovers for contemporary lawyers, judges and property scholars the impressive learning and frequently brilliant insights that scholars such as Henry Ballantine, Percy Bordwell, William Walsh, William Stoebuck and Charles Callahan provided in their work — insights, which in many instances, foreshadowed scholarly innovations that appeared in subsequent decades.

Moving to Higher Ground: Protecting and Relocating Communities in Response to Climate Change (Vermont Law Review):

As many dramatic recent flooding events illustrate, the risks posed by global climate change continue to mount. Rather than attempt to prove a causal connection between any of these tragic events and climate change, this article focuses on what many scholars and public policy advocates now realize is an inevitable response: retreat — especially moving households and entire communities to higher ground.

This article answers four interrelated questions that relate to the challenge of protecting or relocating communities threatened by sea-level rise and climate change in the specific context of takings claims and government land acquisition programs. These questions are visualized as forming a chronological decision tree which government officials, legislators and, inevitably, courts will face.

First, the article addresses whether property owners can assert a valid takings claim based on a governmental decision not to build hard infrastructure that would protect land, homes and businesses from sea-level rise and flooding? The article’s answer is no; takings liability does not exist in this situation. Next, the article asks whether governmental actors — federal, state or local — are likely to use the power of eminent domain to relocate property owners and entire communities to higher ground? Again, the answer is no; the political unpopularity of eminent domain will usually take this option off the table.

If governments do not use eminent domain to relocate communities but do want to use public resources to create voluntary property acquisition programs designed to facilitate the movement of households and, indeed communities, to higher ground, what strategies have proved to be most successful? To answer this question, the article reviews a handful of recent experiments and distills several lessons from this experience.

Finally, the article tackles a residual question that follows from the previous three. If a government sponsored buy-out program succeeds in inspiring a large percentage of property owners in a community to sell their property and actually move to higher ground (or if large numbers of property owners leave on their own volition for other reasons), what obligations, if any, does the government still owe to those who remain behind, especially when it comes to maintaining infrastructure and government services? Would a county, a state, the federal government, or even a public utility be able to withdraw infrastructure support and services and leave the remainder of the community to fend for itself in the face of ever-rising waters and more ferocious storms? To answer this question the article describes several recent cases and scholarly claims that purport to open the door to potential “passive takings” liability for governmental inaction in these circumstances. The article concludes by noting the irony that although governments generally do not face liability for failing to build hard infrastructure to protect communities from the risks of climate change at the outset, if their relocation and buy-out programs partially — but not entirely — succeed, they might face takings liability at the end of the day.

Tacking in a Mixed Jurisdiction (Andrew Steven ed., Avizandum 2017):

This book chapter addresses a key moment in the development of Louisiana’s law of acquisitive prescription. For one hundred and forty years, Louisiana courts had held that a possessor in bad faith could cumulate her possession with that of a prior possessor in good faith for purposes of establishing ten year acquisitive prescription regardless of whether the two possessions were linked by particular or universal succession. In Bartlett v. Calhoun, 412 So.2d 597 (La. 1982), the Louisiana Supreme Court reversed course and held that a subsequent possessor who acquires her possession by particular title must have all the statutory characteristics and conditions required for ten year acquisitive prescription. In other words, a bad faith possessor cannot tack her possession to the good faith possession of a prior possessor for purposes of achieving ten year acquisitive prescription if the subsequent possessor acquires possession by particular title.

This book chapter analyzes the doctrinal background preceding the decision in Bartlett, comments on the significance of the decision, reveals the dispute’s surprising final outcome, and responds to the decision’s critics, arguing that the alleged doctrinal asymmetry produced by the decision has not troubled subsequent Louisiana courts and explaining why the decision has acquired its own canonical weight in Louisiana property law. The book chapter concludes by providing a brief comparative excursion into Scots law of positive prescription, demonstrating that Scots law would solve the factual problem presented in Bartlett by focusing judicial inquiry on questions related to the authenticity of an allegedly forged deed rather than the good faith of a second possessor.

Professors' Corner: Installment Land Contracts

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 Property and Real Estate Transactions Sections are welcome and encouraged to register and participate

 

Tuesday, January 9, 2018

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

 

Installment Land Contracts:  Uses, Abuses, and Legislative Proposals

 

Speakers:

 

·        Professor Jim Durham, University of Dayton

·        Professor Wilson Freyermuth, University of Missouri

 

Moderator:

 

·        Professor Chris Odinet, Southern University Law Center

 

In the wake of the mortgage crisis, several jurisdictions have seen a resurgence in the use of the installment land contract as a financing device. Use of the installment contract creates a number of risks, particularly in jurisdictions where existing precedent and/or statutory provisions do not clearly articulate the appropriate procedures for the vendor’s enforcement of contract following the vendee’s default. Some investors have sought to capitalize on this lack of clarity, effectively using installment contracts as the equivalent of “rent-to-own” contracts that provide for landlord-like default remedies while disclaiming any responsibility for the habitability of the property.

 

Professors Durham and Freyermuth will discuss the existing legal background governing the characterization and enforcement of installment land contracts and the wide variety of approaches taken by various states. They will also discuss the provisions and the merits of recent legislative proposals designed to regulate some of the more abusive uses of the installment land contract device.

 

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

 

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

Legal Education and Uniform Laws Group