PropertyProf Blog

Widener on Leasing Law and Marijuana-Related Businesses

Friend of the blog and Phoenix lawyer Michael Newton Widener just published a book titled Joint Tenancies: Property Leasing in Cannabis Commerce with ABA Book Publishing and sponsored by the Section of State and Local Government Law. Cribbing from the abstract:

This book is not legal advice delivered or offered to anyone. Instead, Joint Tenancies seeks to teach readers about issues to take to heart in the Cannabis industry real estate leasing process and to be successful in doing so. Toward the end of Joint Tenancies, some forms are included that offer ideas for how a landlord might treat this type of transaction. Using these forms, or anything like them, won’t guarantee that a landlord avoids forfeiture or personal criminal prosecution if that landlord veers off the regulatory rails. Any potential commercial landlord must proceed with extreme caution. Part of that process is to obtain competent legal advice from an experienced attorney in the local community.

Inside this book readers will find sound advice, for example, "Landlords should not be seduced by potential rent rewards and ignore risk factors like losing the property’s insurance coverage. Early-warning signals to landlords will come from the office of the state’s U.S. Attorney or local DEA officials in each state. Landlords must read these signals so that they make informed decisions before signing any lease proposal."

Property Lawyer Gone Bad

It's not often that I can make quitclaim deeds look like a sexy topic in Property.  This semester in particular, the conversation about warranty of title (or lack thereof) dragged on for a good bit longer than I had planned.  As always happens, one student asked why anyone would transfer property via a quitclaim deed.  While I was explaining that the value of the interest an individual has in a tract of land might be less than the cost of determining the exact scope of that interest, I could see the glaze over my students' eyes growing.  I was saved by the bell, but fretted returning the next day to a bored group of students.  

That is when this news story hit the press.  

A lawyer from near New Orleans wanted to make a buck and what better way to do it than through a few quitclaim deeds.  More than a decade ago, the property lawyer decided to write up some false quitclaim deeds on a few properties that appeared to be abandoned.  The lawyer put his business partner's name in as the seller, the lawyer's name in as the buyer, put the deed in valid form under Louisiana, and presto!  The quitclaim deeds were filed in the public records and a couple of years later, the lawyer aka alleged buyer of the abandoned properties sold the properties to unsuspecting third parties.  Making up quitclaim deeds and selling them off became like going to the ATM.  

Fast forward to the present day when those unsuspecting third party buyers resell the property to new unsuspecting third parties who are unable to get clean title to the properties and the gig is up.  Louisiana has a notably long period for adverse possession (or acquisitive prescription as it is referred to in this civil law jurisdiction), so the new buyers can't be saved by adverse possession.  The original attorney re-enters the scene and files a defamation lawsuit against all of the buyers of the property.  Why?  Because the buyers of the property have been asserting that the lawyer made the original sin in this whole transaction.  To top it all off, the lawyer has a bizarre coffee shop meeting with the buyers he is suing for defamation.  During the coffee shop meeting, the lawyer does a time warp to the 1990s by literally giving the buyers an Ace Ventura loser sign.  (Seriously.  Read the story.  The loser part is even included.)

Needless to say, the lawyer involved is in a heap of trouble, facing possible disbarment.  And the buyers aren't much better off, at least financially.  But my Property class, I am happy to say, is now wide awake and totally enthralled in quitclaim deeds.  

New Book on Property and Human Flourishing by Alexander

Gregory Alexander's (Cornell) latest book, Property and Human Flourishing (Oxford University Press), just hit the shelves.  The book continues Greg's scholarship on progressive property by offering an alternative way of understanding the moral issues of private ownership, namely that human flourishing is property's moral foundation.  As Greg has done in previous articles, he develops a theory that connects ownership and human flourishing with obligations.  Greg asserts in the book that "[o]wners have obligations to members of the communities that enabled the owners to live flourishing lives by cultivating in their community members certain capabilities that are essential to leading a well-lived life. These obligations are rooted in the interdependence that exists between owners and their community members, and inherent in the human condition."  Moreover, the book focuses on practical matters by discussing the implications for a wide variety of property issues including, but not limited to, expropriation, eviction, mortgage foreclosure, and homelessness.  

This past January, Greg visited Tulane to give a faculty workshop, and I had the privilege of discussing with Greg Chapter Eight of his new book, titled "Of Buildings, Art, and Sperm: The Right to Destroy and the Duty to Preserve."  In this chapter, Greg sought to reframe the discussion on the right to destroy in the context of human flourishing.  Specifically, Greg examined three types of property where destruction (and the legal fallout thereafter) arises with some frequency:  historic preservation, art, and embryos.  My take away from reading the chapter was that regardless if one agrees or disagrees with how the Aristotelian notion of human flourishing is being applied to property law, Greg's writing challenges our basic thinking about property law and, more importantly, the goals that should underpin our property doctrines.  As Hanoch Dagan (Tel-Aviv University) said about Property and Human Flourishing, the book "offers a progressive alternative to the dominant libertarian and welfarist conceptions of property. This is a major work, providing a comprehensive defense and a nuanced refinement of Alexander's innovative human flourishing theory of property."

Congratulations, Greg, on a great new piece of property law scholarship!

 

Professors' Corner: Evictions and Tenant Blacklisting

A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity

Speaker:

Professor Paula Franzese, Peter W. Rodino Professor of Law, Seton Hall Law

Moderator:

Professor James C. Durham, University of Dayton School of Law

Every day across the United States countless residential tenants face the prospect of eviction. Tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on damning registries collected and maintained by "tenant reporting services." Tenants whose names appear on these so-called "blacklists" are denied future renting opportunities, stigmatized and excluded from the promise of fair housing. To compound the problem, the landlord-tenant laws, meant to be tenant-protective, exacerbate the crisis in housing displacement. An empirical study that that I recently completed revealed that of the 40,000 residential eviction actions brought in one county in New Jersey in one year, only 80 had tenants asserting as a defense to non-payment of rent landlord's breach of the implied warranty of habitability. This no matter the significant reported instances of derelict and grossly substandard rental housing known to exist within that same county.

Landlord-tenant laws, as currently constituted and enforced, pose formidable bars to tenant enforcement of what we presume to be assured rights. This webinar will examine three of those impediments: 1.) the rent deposit requirement, 2.) tenant blacklisting and 3.) the absence of counsel for tenants facing eviction. Approximately 90 percent of landlords have legal counsel while 90 percent of tenants do not. Cities like New York and San Francisco have now implemented programs to provide counsel to low-income tenants. I am at work now on the promulgation of a similar program for the city of Newark.

Register now for this FREE program and join us every second Tuesday of each month for a discussion of these and other current issues.  (The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for this program).

CFP: Regulatory Issues in Property Law

The Cambridge Center for Property Law is encouraging and accepting submissions on any contemporary subject relating to land and property law from academics and practitioners from around the world for their upcoming conference on Regulatory Issues in Property Law on May 25-26, 2018.  Areas that are of particular interest include planning law, housing law, and the relationship  between property law and human rights.

Submissions should include an abstract of no more than 200 words, including: (1) the name of the submitting author and their institution or organisation and (2) their contact details.  Abstracts may be emailed to Douglas Maxwell (dskm2 at cam.ac.uk).  The deadline for submissions is Wednesday, April 11 at 6:00 PM.  Places are limited so send in your abstracts ASAP!  

For more information, download Cambridge University Property Law 2018 Brochure.