PropertyProf Blog

"so that every poor man may have a home"

I love talking about the 1862 Homestead Act in Property, but I'm always amazed at how little students know about what I regard as a pivotal law in American history.  (It was personally significant too, as nearly all of my great-great-great-grandparents earned their Nebraska farms under to the Homestead Act or the prior Military Bounty Land Act of 1855.) 

The Disunion series in the New York Times has a fascinating piece today on the history and political rhetoric surrounding the passage of the Homestead Act, including President Lincoln's argument to “[cut] up the wild lands into parcels so that every poor man may have a home.”  So much of the rhetoric still resonates today in discussions regarding Occupy Wall Street, and whether the government should encourage homeownership.

By the way, if you are in Washington, D.C., you can visit the National Archives and view the original documents filed by homesteaders perfecting their claims.  Fascinating stuff.  For example, I found the original handwritten affidavit by my fourth great-grandfather (Jesse Pollard) testifying that my third great-grandfather (Pharagus Pollard) had managed to get 35 of the 160 acres in Richardson County, Nebraska under cultivation in his first year of homesteading, as well as construct a dwelling house that had doors, windows, and a floor.  According to tax and census records, Pharagus did not have a mule, horse, or ox on the farm, so he must have either borrowed the necessary beasts (which is unlikely) or done the work under his own power.  Unfortunately, Pharagus died in the Civil War and left his widow and young children to finish improving the farm. 

Kinda puts grading Property exams in perspective. 

Tanya Marsh

The Dangers of Unmarked Graves

Sometimes, when digging the foundation for a new structure, you find a few unmarked graves.  Or 1400+ unmarked graves. 

Tanya Marsh

The Death of a Town

The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated.  The mining companies that caused the contamination and abandoned the mines are, of course, out of business.  The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”

Yet, the article also describes the people who didn't want to leave, despite every reason to do so.  The article describes the remaining residents:

A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”

A fascinating, and depressing story.

Tanya Marsh

Property Rights

"Property rights" is a phrase more often treated normatively than positively.  "Property rights" are often seen as something essential to a modern economy and/or economic development.  But less of the literature makes an effort to define what property rights actually are.

Which is interesting, as both parts of the term - the word "property" and the word "rights" are often contested terms.  It seems they can each be extensively debated on their own, but once we put them together, no debate is needed: we have a clear, monolithic, normative phrase.

I disagree.  But do others?  And if you disagree, what is the best working definition of "property rights" that you have seen?

 

 

 

ABA-RPTE "Professors' Corner" Teleconference on Property Cases

Take a break from grading, administering, or writing exams today and call in to the "Professor's Corner" teleconference sponsored by the American Bar Association's Real Property Trust and Estate Law Section.  Wilson Freyermuth, Matt Festa, and I will be discussing three recent cases that will be of interest to property profs and practitioners alike.  Whether you are a member of the ABA or not, you are welcome to call in and spend a little time with your fellow property profs today. 

These calls will be held monthly, on the second Wednesday of each month at 12:30 eastern time.  If you have a recent case that you would like to discuss on a future call, please let me know!

Details of the call are below:

The ABA Real Property, Trust and Estate Law Section’s Legal Education and Uniform Laws Group has a regular (and free!) monthly teleconference, “Professor’s Corner,” in which a panel of three law professors highlight and discuss recent real property cases of note.

The May 2012 call is this Wednesday, May 9, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific). The call-in number is 866-646-6488. When prompted for the passcode, enter the passcode number 557 741 9753.

The panelists for May 9, 2012 are:

Professor Tanya Marsh, Assistant Professor of Law, Wake Forest University School of Law. Professor Marsh will discuss Roundy’s Inc. v. National Labor Relations Board, 674 F.3d 638 (7th Cir. 2012). Decided in March 2012, this case held that Roundy’s (a non-union supermarket chain) did not have the right to exclude third parties (in this case, non-employee union organizers) from common areas of shopping centers in which it operated.

Professor Matt Festa, Associate Professor of Law, South Texas College of Law. Professor Festa will discuss Severance v. Patterson, 2012 WL 1059341 (Tex. 2012). In this case, decided March 30, 2012, the Texas Supreme Court struck down the “rolling easement” theory of public beachfront property access under the Texas Open Beaches Act.

Professor Wilson Freyermuth, John D. Lawson Professor and Curators’ Teaching Professor, University of Missouri. Professor Freyermuth will discuss Summerhill Village Homeowners Ass’n v. Roughley, 270 P.3d 639 (Wash. Ct. App. 2012), in which the court refused to permit the mortgage lender to exercise statutory redemption after its lien was extinguished by virtue of a foreclosure sale by an owners’ association to enforce its lien for unpaid assessments. He will also discuss First Bank v. Fischer & Frichtel, 2012 WL 1339437 (Mo. April 12, 2012), in which the Missouri court rejected the “fair value” approach to calculating deficiency judgments under the Restatement of Mortgages.

Tanya Marsh

Super Bowl in Indianapolis: the Epicenter of Awesome

I am Super-bummed to miss out on the temporary but, by all accounts, awesome transformation of downtown Indianapolis in anticipation of the Super Bowl.  From the zip line down Capital Avenue to the ice wall from which beer is served on Georgia Street, the football festivities have taken over the city in a major way.  The economic impact of hosting the Super Bowl remains subject to controversy, but my empirical research (which consisted of reading the Indianapolis Star and reviewing my friends' Facebook posts), reveals a much more significant benefit of hosting the Super Bowl.  Sure, Indianapolis is a significant convention town and has hosted many major sporting events.  Every May, over 300,000 people attend the Indy 500, and the Final Four is regularly held in Indy.  But the Super Bowl is different. 

I grew up in Indianapolis in the 1970s and 1980s.  The city had colorful nicknames at the time -- especially "Indian-no-place" and "Naptown."  Downtown closed at 5p.m.  But things began to change in the mid-1980s.  In 1984, we built the Hoosier Dome (I refuse to call it the RCA Dome) in the middle of downtown with fingers-crossed that a NFL team would choose to locate there.  A deal with struck with Robert Irsay, and the Colts arrived in the middle of the night, in a fleet of Mayflower trucks.  Making the transition from a basketball town to a football town took a few years, and probably required the particular magic of Peyton Manning, but the investment in the Dome and the Colts represented a leap of faith for the city.  By the time I came back to Indy after graduating from college in 1994, downtown was already in the midst of a transformation.  Circle Centre Mall opened in 1995 in the warehouse district.  The Indianapolis Zoo had moved downtown in 1988 -- it was joined in 1989 by the Eiteljorg Museum, in 1996 by Victory Field (the most beautiful minor league park in America), in 2000 by the NCAA Hall of Champion, and in 2002 by the Indiana State Museum.  The museums, Victory Field, and the Zoo are part of White River State Park, three blocks from the Indiana Statehouse.  Beyond downtown, Indianapolis has a thriving arts district, the best children's museum in the world, great neighborhoods, restaurants, and schools. 

Indianapolis is the 12th largest community in America, but the traditional inferiority-complex is hard to shake.  To many, Indy has always felt like a big small town, not a big city.  So while the value of hosting the Super Bowl may be difficult to quantify, I would suggest that the greatest benefit is that it put a mirror up to Indy and allowed us to see and appreciate all of the wonderful changes that have taken place over the past thirty years.  Indianapolis isn't Naptown anymore.  We've arrived.  Enjoy the Super Bowl.

Tanya Marsh

London Bridge is Falling Down

 

Actually, London Bridge may be fine.  I don't know.  But London has some bigger issues.  The Palace of Westminster has apparently been slowly subsiding for some time, which has caused Big Ben to lean, and for cracks to appear in surrounding structures. (The Big Ben situation may not be a problem for 10,000 years, according to one expert.)  To fix the underlying problem, engineers propose sealing off large portions of the Palace of Westminster for years, to allow them to shore up the foundation.  Some MPs, unhappy about the time and expense that would be involved in saving the 140+ year old structure, propose selling it to developers and building a new home for Parliament.

Meanwhile, back in America, the New York Times reports today on efforts in NYC to reconcile historic preservation and new green building standards. 

Tanya Marsh

The Winter of the Deep Snow

I've been doing some work on settlement in Illinois in the early -to- mid 19th century and have found several references to the "winter of the deep snow," as in "so and so arrived before the winter of the deep snow."  The History of Scott County, Illinois places this event in 1830/31 and describes it thusly:

Just after Christmas, 1830, the snow began falling, and continued until all over the central part of Illinois the snow upon an average, was three feet deep. "Then came a little rain, with weather so cold that it froze as it fell, forming a crust of ice over this three feet of snow nearly, but not quiet, strong enough to bear a man; and finally, over this crust of ice there was a few inches of light snow. The clouds passed away, and the wind came down from the northwest with extraordinary ferocity. For weeks, - certainly, for not less than two weeks, - the mercury in the thermometer was not, on any morning, higher than twelve degrees below zero. The wind was a steady, fierce gale from the northwest, day and night. The air was filled with flying snow, which blinded the eyes and almost stopped the breath of any one who attempted to face it. An average depth of three feet of snow, accompanied, as it fell, with wind blowing at the rate above described, would, of course, be piled in great drifts, many of which were higher than fence-tops. The corn was in the field ungathered, the wood was in the timber, under the snow, yet the corn must be got, or the stock, and people, too, would suffer for food; and the wood must be obtained, or the people would freeze to death. Roads had to be broken, yet the wind blew so hard, and with that depth of snow, that they would almost immediately fill up, and they had to be broken over again. The result was, that long after the warm rains had melted the snow, strips of ice remained in the roads. Every living thing suffered more or less from this terrible winter. The hunters and wolves made sad havoc among the deer, while a great many smaller animals died by starvation. Especially was this true of the quails, which were almost exterminated. A majority of the settlers were from Tennessee, Kentucky and South Carolina, and having never experienced anything of the kind, were greatly disheartened by this severe winter; but the indomitable Yankees among them, who had seen snows in New England (but nothing like this) took the lead in breaking paths and roads, and cheered up the drooping spirits of the southerners, by talking of spring and its sunshine, and telling them that perhaps such a winter would never come again.

Its hard to even imagine.  By the way, it was 60 degrees today in Winston-Salem.

Tanya Marsh

The Economist's Advent Calendar

I started reading The Economist in high school -- it made me sound really smart when I cited it in speech competitions.  I've been a subscriber for a while, and while I love the print magazine, the iPad version is even better.  (It is an expensive magazine, but they have good deals for academics.)  Anyway, The Economist has begun an Advent Calendar feature, in which it unveils an interesting chart or graph each day until Christmas.  Seven are revealed already.  Check it out.

My favorite so far is the map of northern India and Pakistan which shows all of the border disputes between India, Pakistan, and China (via Tibet).  An interesting story and graphic about the lingering effects of arbitrary, colonial borders.

Tanya Marsh

Unexpected Consequences of the Texas Drought

Perhaps you are familiar with the hay shortage in Texas and the numerous hardships imposed on the people and animals there who depend upon regular rainfall.  I don't want to say that the drought has a bright side, but it has revealed historical and archeological secrets formerly submerged in lakes and other bodies of water.  This article describes a few, but of course I'm mostly interested in the cemeteries.

Tanya Marsh

Explaining the Canadian/U.S. Border

I've really enjoyed the "Borderlines" series by Frank Jacobs in The New York Times.  (He explains that he "writes about cartography, but only the interesting bits.")  In a recent installment, he explains the history of the U.S./Canadian border west of Lake of the Woods.  The border is popularly understood to run a straight line along the 49th parallel for 1,260 miles, but the real story is more interesting.

If you like that piece, you should also check out his work at Big Think, where his blog series is called "Strange Maps." 

Tanya Marsh

Hoosier Roundabouts

 

Much media attention is being paid to the roundabouts of Carmel, Indiana.  With a whopping 70, Carmel is apparently the roundabout capital of America.  The above clip is from Anderson Cooper's show in May 2011 (by the way, Anderson mis-pronounces the name of the city, but the reporter gets it right) and today, The Economist (!) has an article on the same topic.  I lived a mile south of Carmel for most of my life and have experienced the roundabouts firsthand.  It is a much more pleasant experience driving east/west on 96th Street (which is in Carmel and has roundabouts) than driving the parallel east/west path ten blocks south on 86th Street (which is Indianapolis and doesn't). 

Perhaps one reason that the roundabouts work in Carmel is that the typical Hoosier driver is pretty polite.  When four cars all stop at a four-way stop at the same time, usually everyone waves everyone else on.  I have lived in other parts of the United States (which shall remain nameless) where all four drivers in the same situation would gun their engines simultaneously.  

Tanya Marsh

If you love maps (and I know you do) ...

Then you may be interested in exploring these digital collections of maps:

Boston Public Library

(The map above, of New York and New England in 1697, was downloaded from the Boston Public Library digital collection.)

The Boston Atlas

The Harvard Map Collection

The Yale Map Collection

University of New Hampshire Library Maps

New York Public Library Digital Gallery Maps

David Rumsey Map Collection

Library of Congress Map Collections

University of Texas Map Collection

Indiana University Purdue University at Indianapolis Library

Most of the links above were provided to me in "The Weekly Genealogist," a publication of the New England Historic Genealogical Society, thus, an emphasis on New England.  I've used the Sanborn Fire Maps at the IUPUI Library for a number of different projects.  Plus, maps are fun!

Tanya Marsh

The Missing Tombstone

A Knoxville, Tennessee man recently stopped by a garage sale, where for $2 he acquired the tombstone of Clara Nielsen, a one-month-old infant who died in 1881.  As this local news story reports, he searched for Clara and ultimately returned her tombstone to her Nebraska grave.  I know that I am a total cemetery/genealogy geek, but this story really touched me. 

Tanya Marsh

Agricultural Land Prices Rising

Steve posted last month about the rising prices of agricultural land in Iowa.  According to today's Wall Street Journal:

Nationwide, residential land values in the U.S. have fallen nearly 70% since peaking in the second quarter of 2006, according to a recent report by the Lincoln Institute of Land Policy, a Cambridge, Mass., think tank. Meanwhile, the value of U.S. cropland (excluding Alaska and Hawaii) rose close to 20% between 2007 and 2011, according to the U.S. Department of Agriculture.

Are we witnessing another bubble?  It is clear that that the rising values of farmland are tied to the rising values of commodity crops, which are tied to government aid and price supports. 

The demand for farmland is being fueled by rising prices for everything from corn to cotton. Net farm income is forecast to climb 31% in 2011 to $103.6 billion, its highest level on an inflation-adjusted basis since 1973, according to the USDA.

The U.S. Department of Agriculture has a fascinating report on the increasing value of farms, crop land, and pasture land in the United States.  You can download the report here.  The map above is from the August 2011 USDA report.  Check out the numbers on the Dakotas and Nebraska. 

Tanya Marsh

Disclosure of Death on Property

American Horror Story, a seriously disturbed new show on FX, spent several minutes debating property law in it's third episode. The house at the center of the show is a 1920s mansion in Los Angeles, lovingly restored with beautiful glass and wood. It is also the site of many, many murders over the years and may actually be evil.

The new family which purchased the house in the pilot were told of the murder-suicide of the house's previous owners. The realtor told the couple that she was required to disclose those deaths because they occurred in the house within the prior three years. She did not disclose the other murders. (It is unknown at this point in the show how many have actually died there.)

Not surprisingly, she wasn't exactly correct.

California Civil Code sec. 1710.2 provides in part: "a) No cause of action arises against an owner of real property or his or her agent, or any agent of a transferee of real property, for the failure to disclose to the transferee the occurrence of an occupant's death upon the real property or the manner of death where the death has occurred more than three years prior to the date the transferee offers to purchase, lease, or rent the real property..."

There isn't actually an affirmative requirement to disclose deaths which occurred on the property within the prior three years. There is, however, a more general requirement to disclose material issues that could impact the value of the home. For example, that the house is evil.

Tanya Marsh

Changing Rules on Private Real Property in Cuba

The NY Times has an article today regarding Cuba's decision to allow citizens and permanent residents to buy and sell real estate.  Transactions will be taxed at a rate of 8% and must be financed through the Cuba Central Bank.  People will be permitted to own only two homes -- one residence and one vacation property.  But despite the limitations, this is a huge free-market move for Cuba.  It is anticipated that Cuban-Americans, who are now permitted to send money to their relatives per a 2009 executive order, will play a major role in the new private property boom.

Tanya Marsh

John Muir at Bonaventure

We left Winston-Salem on Tuesday afternoon to spend a few days in Disney World.  We stopped for the night in Savannah.  I'd never visted Bonaventure Cemetery, made famous in "Midnight in the Garden of Good and Evil," but somehow I convinced my family to make a quick stop. 

John Muir, the famous naturalist, wrote about Bonaventure Cemetery in his 1916 book "A Thousand-Mile Walk to the Gulf."  Chapter 4 is entitled "Camping Among the Tombs," and in it he describes sleeping at Bonaventure.  Here are a few things he had to say about the experience:

"If that burying-ground across the Sea of Galilee, mentioned in Scripture, was half as beautiful as Bonaventure, I do not wonder that a man should dwell among the tombs. ...

There is but little to be seen on the way in land, water, or sky, that would lead one to hope for the glories of Bonaventure. The ragged desolate fields, on both sides of the road, are overrun with coarse rank weeds, and show scarce a trace of cultivation. But soon all is changed. Rickety log huts, broken fences, and the last patch of weedy rice-stubble are left behind. You come to beds of purple liatris and living wild-wood trees. You hear the song of birds, cross a small stream, and are with Nature in the grand old forest graveyard, so beautiful that almost any sensible person would choose to dwell here with the dead rather than with the lazy, disorderly living. ...

The most conspicuous glory of Bonaventure is its noble avenue of live-oaks. They are the most magnificent planted trees I have ever seen, about fifty feet high and perhaps three or four feet in diameter, with broad spreading leafy heads. The main branches reach out horizontally until they come together over the driveway, embowering it throughout its entire length, while each branch is adorned like a garden with ferns, flowers, grasses, and dwarf palmettos."

Based on my visit to Bonaventure Cemetery, nearly 100 years after Muir, his observations are spot-on. 

Tanya Marsh

Equality and the Monarchy

As royal watchers doubtless already know, David Cameron has proposed to change British royal succession laws to permit the first-born child (regardless of gender) of the Duke and Duchess of Cambridge (i.e. Will and Kate) to succeed to the throne.  This idea has been floated before, but The Economist explains that it has "always been shelved on the grounds of complexity.  Britain cannot change the rules alone, but must seek support from the 15 other realms of which Elizabeth II is queen."

He has also proposed to repeal the rule that bars those from marrying Roman Catholics from the succession.  This rule would apply only to future marriages, to prevent a "queue of pretenders outside Buckingham Palace."

Tanya Marsh

Siri: The Future is Now

Siri may pretend that it is just a humble personal assistant, but we've all seen 2001 and Terminator.  Humanity is doomed.  Nevertheless, as an early adopter, I will be placing my pre-order for the iPhone 4S on Friday morning.

Tanya Marsh