Archive for the ‘Property Law’ Category

Celebrity Legal Claim of the Week

posted by Jon Siegel

Those celebrities just can’t stay away from strange legal theories.  After Roman Polanski claimed last week that his sex crime should be excused because he’s a great artist, Jon Gosselin, former star of “Jon & Kate Plus 8,” is now claiming the right to exclude television crews from the home he owns jointly with his wife.

Jon Gosselin and his wife had a “reality” TV show about their life with their eight children.  But now they are estranged, and Jon recently got fired from the show, which is to be renamed “Kate plus 8.”  Not taking this lying down, Jon has demanded that TLC, the network filming the show, stay out of his house.  If they enter to film, he claims he’ll have them arrested as trespassers.

Sheesh, if I were TLC’s general counsel, I would tell Jon, “ooh, we’re scared.”  How about some basic property law?  Every law student knows that joint owners of property (known in property law as “joint tenants” or “tenants in common”) each own an “undivided interest” in the whole property and each has a right to occupy the property without the consent of the other.  Heck, each of them has a right to lease the property without the consent of the other. 

In 1861, the California Supreme Court considered the case of a lessee who had leased property from a joint owner and was then asked to leave by the other joint owner.  The Court said, “We have no doubt that one tenant in common may occupy the common premises, and as little that he may permit another person to occupy a part of them; and it is impossible for us to see how that tenant in common could sue such person, so lawfully entering or occupying, as a trespasser, or how his cotenant could maintain such suit.”  Ord v. Chester, 18 Cal. 77 (1861).

More recently, a California court considered a case quite like the Gosselins’:  an estranged husband and wife jointly owned a home, which the husband leased to a third party.  The wife showed up and tried to oust the lessee.  The court said:  “A cotenant has no right to oust a person who holds possession with the consent of another tenant in common.  . . . When a joint tenant leases to a third party he confers upon the latter the same right of possession that he himself has.”  Verdier v. Verdier, 152 Cal.App.2d 348, 313 P.2d 123 (1957).

If one of the estranged spouses can lease the property without the consent, and indeed over the objection, of the other, then either can certainly invite guests onto the property without the consent and over the objection of the other.

So if I were TLC, I would tell Jon to get lost.  Kate’s permission is all they need.

  October 1, 2009 at 12:07 pm   Posted in: Property Law   Print This Post   One Comment

Residential Integration

posted by Gerard Magliocca

I want to draw your attention to this new book on The Integration Debate:  Competing Futures for American Cities, which explores racial segregation in housing and discusses various options for addressing the issue. One of the chapters was written by my colleague Florence Roisman, who is a towering figure in Affordable Housing Law (though in person, she’s rather short).  Part of the proceeds go to the National Fair Housing Alliance and the John Marshall Law School Fair Housing Legal Support Center in Chicago.

  September 22, 2009 at 6:13 am   Posted in: Property Law   Print This Post   No Comments

The Takings Clause

posted by Gerard Magliocca

One interesting feature of the Sotomayor hearing was the number of questions she was asked about Kelo.  I am not a property scholar (I find that blogging often requires me to qualify comments by saying “I’m not an expert on this”), but I find the policy debate over Kelo perplexing.  Let us assume that Kelo was right in holding that a constitutional “public use” if a state or local government takes property (say, somebody’s house) for a private development project such as a shopping mall.  Should state law be amended to bar that practice?

Well, the ongoing foreclosure crisis suggests that the answer is no.  There are many cities that  now have swaths of empty homes (including the house next to mine.)  And this is imposing significant costs on communities, including a loss of tax revenue, declining property values, and higher levels of crime.  If a private developer wants to use a block of these houses to build a commercial project, why should the use of eminent domain to facilitate that be prohibited?  Put another way, which is more problematic — the harm that results when people who live in homes are forced to move against their will (and might be cheated on the value of that property, as often happens when “just compensation” is awarded) or the harm that results from empty houses that just sit there when a transaction cost solution (i.e. eminent domain) would bring them back into productive use?

  July 21, 2009 at 12:54 pm   Posted in: Property Law   Print This Post   8 Comments

Summer Reading

posted by Sarah Waldeck

This is just a quick post to urge property professors to add Jeff Benedict’s Little Pink House to their summer reading lists.  The book, which Dahlia Lithwick and Ilya Somin thoroughly reviewed a while back, is a law-lite acocunt of the conflict between Suzette Kelo and the City of New London, Connecticut.  Benedict clearly sides with Kelo early in the book, so I found myself reading Little Pink House with a very large grain of salt.  But it’s still a great beach book for property profs, primarily because it’s chockfull of details that many are unlikely to have read elsewhere.  There’s no question that my class on the meaning of public use will be better for having read this book.

  June 3, 2009 at 1:29 pm   Posted in: Book Reviews, Property Law   Print This Post   One Comment

Maps and Legends

posted by Deven Desai

Space the final frontier. These are the voyages of … ah, you know the rest. Exploration and the idea of frontiers seem to capture an important part of the human experience. The possibility of finding something new, of entering uncharted territories excites people. And, although one may want to keep the secret of the Northwest Passage or the Straits of Magellan a secret, sooner or later a map is created to increase the amount of benefit that can be extracted from the discovery. Yet with the world seeming to collapse into one connected place, the role of maps has changed. In short, maps are a new frontier for property and privacy.

As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google Maps has also spawned some other curious creations and connections. For example, I wrote about the flap over what is a true IMAX screen and that folks put together a map of IMAX screens with information about the screen size. The H1N1 (aka swine) flu epidemic revealed an interesting dual use for maps. One person created a frequently updated map with information about claimed incidents. I was curious about the source and found that one person at, what else, a bitotech company focused on recombination and disease, was behind the map. In addition, a group called Health Map seeks to offers a map that connects “disparate data sources to achieve a unified and comprehensive view of the current global state of infectious diseases and their effect on human and animal health.” On the light side, Total Film has a feature that uses Google Street view to show 25 favorite film locations.

As seems always to be the case, folks will probably soon argue about who owns what. The more interesting point might be the way maps show the malleability of information. In some hands, maps show fun things like where a film was shot. In other hands, maps provide useful epidemiological information. Yet, certain home owners may not be pleased about having tourists show up to gawk at what had been a quiet abode. Cities, counties, and even states may be upset if lay people assume that suspected or even confirmed outbreaks mean they should create a de facto or quasi-quarantine. Last, knowing where specific racial, religious, and other groups are can all too easily lead to mob behaviors.

The information mill churns. We have to sort it out. Old tools have new impacts. Today maps pose challenges. Tomorrow it will be something else. I am never certain that the law is the best way to manage these changes. Nonetheless, we have to consider what they are and how they function in case the law is asked to do so. On that note, please share any other creative and/or challenging uses of maps of which you are aware.

Last here is a little music for the trip:

Maps And Legends – R.E.M.

  May 29, 2009 at 3:42 pm  Tags: copyright, Google maps, H1N1, IMAX, maps, Privacy, property  Posted in: Google & Search Engines, Health Law, Intellectual Property, Privacy, Privacy (Medical), Property Law   Print This Post   2 Comments

Robin Malloy on Entrepreneurship, Property, and Markets

posted by Deven Desai

I recently wrote about the Creativity, Law and Entrepreneurship Workshop at the University of Wisconsin in which I participated. One of the speakers, Robin Malloy who is the E.I. Chair and Distinguished Professor of Law at Syracuse University College of Law,  emailed me and about the ideas he presented. I am quite interested Robin’s ideas and approaches to this area of the law, so I asked whether he would mind writing a short piece to share with our readers. He was gracious enough to agree. So I am pleased to offer Robin Malloy:

ROBIN MALLOY

Law and Entrepreneurship offers many opportunities for interdisciplinary work and for finding common ground among the various categories of property (real, personal, intangible, cultural, IP, etc.) The recent Conference at Wisconsin on Creativity, Law and Entrepreneurship highlighted this exciting possibility. In thinking about property transactions and entrepreneurship I believe there are at least four central starting points, all of which can be expanded. 1) It is important to get beyond definitions of property and look at what we can do with property… to look at transactions in exchange (asking not just what is property but also, and more importantly, what can we do with property). And from the perspective of market exchange theory asking how we capture and create value from transactions in property. 2) Entrepreneurship requires us to develop a more complex vocabulary. We need to start thinking about a variety of types of entrepreneurship instead of always dealing in an abstract sense with just one big category called “entrepreneurship”, as if all entrepreneurship is of the same type or kind. We need to develop more nuanced categories of entrepreneurship based on different observable patterns of behavior and motivations as they might relate to different types of transactions and different categories of property. 3) Creativity is key to entrepreneurship and this requires us to incorporate a theory of interpretation because creativity requires both an understanding of current boundaries of meaning and a recognition of a possibility for setting new boundaries. Recognizing something as new, of course, requires a cultural-interpretive reference point and, thus, interpretation theory is key to understanding a set of given relationships and to imagining the potential for something new and different. 4) The relationship between law and entrepreneurship requires a dynamic approach to market theory. Traditional efficiency analysis is not entirely helpful since it is really a status quo analysis with little application to creativity. Efficiency is directed at thinking about ways of allocating already known resources and not about the market conditions under which creativity, innovation, and discovery are best facilitated. This means that there is a need to think creatively about the meaning of markets and the tools we use to understand law in a market context.

  May 6, 2009 at 4:03 pm  Tags: entrepreneurship, markets, property, Robin Malloy  Posted in: Economic Analysis of Law, Empirical Analysis of Law, Intellectual Property, Property Law   Print This Post   One Comment

Exploring Commons Institutions

posted by Michael Madison

Thanks to Deven for the generous introduction and to Dan and the Co-Op team for inviting me to spend some time here this month.  The introduction intentionally saves space by not including a couple of things that I’ll talk about during my stay:  My other blogs, and my appointment as Research Dean at Pitt.  Both have something to do with my current work on commons institutions.  Over the course of this guest stint I hope to explain some of the connections and to generate suggestions and feedback that might help me see others.

 

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  May 6, 2009 at 8:08 am   Posted in: Blogging, Intellectual Property, Law School (Scholarship), Property Law, Sociology of Law, Technology   Print This Post   One Comment

Did You Clean Out Your Locker?: Yahoo Shuts Its Online Storage Service

posted by Deven Desai

Yahoo! is closing its online storage service Briefcase. According to CNET the service started about ten years ago. Now Yahoo! is telling customers that they have until March 30 to “to retrieve or delete their documents.” As some of you know, I have been writing about who owns material stored online. My piece, Property, Persona, and Preservation, argues that the creator of such material owns the work and that storage services do not. That being said, an online storage company should be able to provide a healthy amount of notice and then close its service as Yahoo! is doing here. The one thing that makes me wonder what Yahoo! is thinking is the word “delete.” Would Yahoo! claim that failure to retrieve or delete material means that Yahoo! owns the work? It might. Would the work stay around forever at Yahoo!? I doubt that. I think the best practice for Yahoo! is to encourage people to retrieve and delete their material and then state that after X date, all material will be deleted.

On a business note, Briefcase offered 30MB and Yahoo!’s statement about the closing–”usage has been significantly declining over the years, as users outgrew the need for Yahoo Briefcase and turned to offerings with much more storage and enhanced sharing capabilities,”–seems to support the move. Yet, the article also stated that Microsoft’s SkyDrive offers 25GB and the Google (yes the Google) is close to offering a similar product called GDrive regarding which the file text claims “provides reliable storage for all of your files, including photos, music and documents [and] allows you to access your files from anywhere, any time and from any device – be it from your desktop, web browser or mobile phone.” So why hasn’t Yahoo! offered a free upgrade? Is the Briefcase brand that weak (or non-existent)?

Put differently, if cloud computing, or as I call it, technologically mediated and stored creation persists as the way we create, why is Yahoo! moving away from this area? In addition, regardless of Yahoo!’s change, Microsoft and Google are pushing for this approach. That is part of why I wrote Property, Persona, and Preservation. A huge amount of our work continues to be outside our control. There are some great benefits to that change, but some serious problems with it too. The paper tries to look at how these changes affect access to knowledge and how we understand ownership of creations. If we don’t pay attention, we may find we lost our work because we forgot to clean out our locker or that someone cleaned it out for us.

  January 31, 2009 at 3:37 pm   Posted in: Intellectual Property, Privacy, Property Law, Technology   Print This Post   2 Comments

Not Textbook Eminent Domain

posted by Sarah Waldeck

Property professors spend so much time talking about regulatory takings and the post-Kelo definition of public use that it’s easy to forget about good old-fashioned eminent domain.

Here’s a scenario reported by the New York Times that is seemingly too straightforward to use on an exam. The National Park Service wants to build a park on the Pennsylvania site where Flight 93 crashed. The Park Service and a group representing Flight 93 families own or control approximately 1,300 of the 1,700 acres that the Park Service wants to acquire, and is in negotiations for roughly 430 acres, including the site where the plane actually crashed. Flight 93 families are eager for a transfer of the property because construction must begin by Fall 2009 for a memorial to be ready by the tenth anniversary of 9/11.

So just take the land, right? Not so fast. The 2002 legislation authorizing the memorial stated that no land could be acquired through eminent domain. (Perhaps because we value property rights more than extraordinary heroism which prevents a second terrorist attack on Washington, D.C.?) A provision in a September 2007 spending bill finally authorized the use of eminent domain, but the Park Service has continued to try to negotiate with the landowner. What a surprise that they can’t agree on a price.

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  January 12, 2009 at 12:45 pm   Posted in: Property Law   Print This Post   5 Comments

Who Owns Your Fat?

posted by Deven Desai

Forbes reports that a Beverly Hills physician who removes human fat by liposuction uses the fat as fuel for two biodiesel SUVs (his Ford model and his girlfriend’s Navigator). Apparently, “A gallon of grease will get you about a gallon of fuel, and drivers can get about the same amount of mileage from fat fuel as they do from regular diesel, according to Jenna Higgins of the National Biodiesel Board.” The irony is almost as good as Fight Club where the miscreants use leftover human fat to create soap which they sell the same upper class folks that were the source of the fat (“about the soap] Tyler sold his soap to department stores at $20 a bar. Lord knows what they charged. It was beautiful.”).

Now the physician had a Web site (no longer up) on which he claimed that

The vast majority of my patients request that I use their fat for fuel–and I have more fat than I can use,” … Not only do they get to lose their love handles or chubby belly but they get to take part in saving the Earth.

Yet according to Forbes, it is illegal to use human medical waste to power vehicles. Really? We have a law about using human waste to power vehicles? What about the Moore case? That one seemed to say that human waste is just that waste, garbage to which the patient had no claim (although there was a nod to proper disposal of medical waste). In addition, could it be that a doctor could take one’s cells etc and develop new drugs but the law would prevent using one’s fat to fuel a car? Why?

The article notes that an attorney has claimed the doctor in this case “removed too much fat from clients and left them disfigured” and that several others have complained to the state. So is this a conversion claim and a public health question. Maybe conflict of interest? All of them? I am not sure what the policy behind this one is. Most likely there is not a specific ban on this use of human medical waste but rather a general prohibition on use of human medical waste. Nonetheless, the oddity and irony of this one makes me wonder whether a patient should be able to negotiate to take home their fat or get a discount on the procedure for letting a doctor use the by-product as he or she wishes.

  December 26, 2008 at 1:47 pm   Posted in: Property Law   Print This Post   One Comment

Paradine, WTC, and the beauty of property and contract

posted by Mark Edwards

One of my most vivid memories of my 1L year was being called upon to present Paradine v. Jane in my property class. I had escaped my stern professor’s lottery system for almost the entire semester. Nervously briefing the case, I discovered that it was (a) written in clipped, indecipherable, Shakespearian English and (b) about as relevant to my life as the second law of Hammurabi. Naturally, I was called upon to explain it.

As I stumbled through it, my classmates giggled at the absurdity of the facts. For those who don’t remember, the facts are these: in 1642, Jane had leased land from Paradine, with rent owing at “the four usual feasts.” Shortly thereafter, the land was occupied by an army that had “invaded the realm,” commanded by the ruthless Prince Rupert. Jane did not regain possession of the land for 3 years. When he regained possession, Paradine sued him for back rent. Jane refused to pay, arguing that he was not liable for rent for land he couldn’t use and possess through no fault of his own.

The court found for Paradine, holding that the lease included an implied covenant to pay rent, come hell, high water, or invading princes. The court reasoned that Jane could have avoided liability under such circumstances by contracting to avoid it; that risk allocation was presumably reflected in the price of the lease; and that since Jane stood to take the upside of unanticipated profits, he must also assume the downside of unanticipated losses. The case is often taught in contracts courses as an impossibility case, but the facts struck me as just a bit unlikely to resemble any issue I might confront in practice.

My doubts about the continuing relevance of Paradine v. Jane were erased by the attacks on September 11, 2001. On that day, a contemporary Prince Rupert attacked again. At the WTC, lessees were deprived of use and possession of land through no fault of their own, and would be for years. As in Paradine, the question arose: who should bear the cost?

Paradine and the WTC attacks are, I now believe, ideal vehicles for teaching several critical concepts about the roles property and contract law play in society.

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  December 8, 2008 at 4:53 pm   Posted in: Property Law   Print This Post   7 Comments

Henry Paulsen as Mary Bailey

posted by Mark Edwards

The disjointed and ad hoc reaction of the Bush administration to this mortgage crisis stands in stark and disappointing contrast to the systemic reaction of the Roosevelt administration to the last similar mortgage crisis. Henry Paulsen seems to have been assigned the role of Mary Bailey during the bank run scene from It’s a Wonderful Life: rushing into the room with a wad of cash, but with little thought of the future.

The Obama administration would be wise to approach the crisis much as the Roosevelt administration did – as a set of difficulties each requiring a specific institutional tool dedicated to its correction, which should function together as a whole to create a new (and hopefully this time, lasting) housing finance superstructure.

To contrast the Bush and Roosevelt approaches, it is useful to recall the ingenious public/private hybrid housing finance system the Roosevelt administration developed. Consider:

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  November 29, 2008 at 11:47 pm   Posted in: Property Law   Print This Post   4 Comments

Volume Liver Transplants

posted by Sarah Waldeck

Of all the issues raised by the Wall Street Journal’s recent reporting on volume liver transplants, those concerning property law may be the least salient. But the questionable behavior of Amadeo Marcus, the former director of clinical transplantation at the University of Pittsburgh Medical Center (UPMC), reminded me of the infamous Moore v. Regents of the University of California. In Moore, the California Supreme Court decided an individual has no property right in his excised cells. Moore helps introduce students to questions of commodification and inevitably leads to discussions about whether people should be allowed to sell organs and other bodily materials. Regardless of their position on this question, students sometime need to be reminded about the extent to which such bodily materials have already been commodified. The next time I teach Moore, I’m going to use recent events at UPMC to amplify this point:

The transplant program is a source of both profits and prestige that UPMC leverages to attract star doctors and build its other businesses, which include a health-insurance arm. Hospitals charge $400,000 to $500,000 for a liver transplant. UPMC’s transplant program produced $130 million of revenue in its latest fiscal year . . . .

Liver-transplant volume in Dr. Marcos’s first full year [at UPMC] jumped to more than double the volume in the year before he came, according to data from the United Network for Organ Sharing, or UNOS. But the way he boosted it raised questions for some colleagues.

A shortage of transplantable organs from cadavers is a perennial constraint on the number of liver transplants. Dr. Marcos overcame this in part by using organs from so-called expanded-criteria donors — deceased people who had been older or sicker than preferred liver donors. . . . Dr. Marcos put some of these organs into patients who were in the early stages of liver disease. . . . These were patients, [some experts say], who sometimes didn’t need a transplant. . . .

Besides using more expanded-criteria livers, Dr. Marcos sharply increased the number of transplants from living donors. In these, part of the liver of a healthy person is cut off and grafted into a sick patient. If all goes well, both pieces eventually grow to normal size. The procedure is controversial because it could be risky for the otherwise healthy donor.

UPMC did 150 such surgeries while Dr. Marcos was there, according to UNOS. No donors died. However, in 69% of the cases, the recipient had [various medical indicators suggesting] that UPMC was putting some living donors at risk to do transplants on patients in which the risks of the operation may have outweighed the benefits.

  November 25, 2008 at 1:40 pm   Posted in: Property Law   Print This Post   7 Comments

Drop Everything and Emulate, III

posted by Mark Edwards

Here’s a question I pose to my property students when we begin to study takings: is that property which the law declares to be property? Or, are there some things that can never be property, no matter what the law says?

It’s a simple question, but answering it has ripped entire nations into pieces, including the United States. It was U.S. Senator Henry Clay, arguing that abolishing slavery would be a massive taking that would require just compensation to the slave-owners, who said, “that is property which the law declares to be property.”

Once they realize the context of his statement, most students disagree with Clay. But that begs the next question: if the law doesn’t give us the final word on rights, including property rights, then what does?

I then take the opportunity to introduce them to a dapper young attorney who argued that that certain fundamental rights inhere in man – including property rights, and in particular the just allocation of property rights in natural resources.

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  November 22, 2008 at 1:00 pm   Posted in: Property Law, Teaching   Print This Post   6 Comments

Nightmares, Norms and Negative Equity

posted by Mark Edwards

Thanks, Sarah, Dan, and everyone at Concurring Opinions for inviting me to guest blog.

For a Property professor, these are riveting times. The mortgage nightmare continues. As in much of the country, here in Minnesota, thousands of houses stand vacant and decaying. Parts of Minneapolis have been devastated. But the problem may have crested in the cities.

Not so in the suburbs. Five-year subprime ARM loans that were originated in 2004 and 2005, when McMansions were popping up in suburbs like dandelions in my lawn, are not due to re-set their rates until 2009 and 2010. If home values haven’t improved by then, many of those borrowers will have negative equity – that is, they’ll owe more than their homes are worth. That means they’ll be unable to re-finance for as much as they owe, because lenders won’t lend more than the house is worth.

Legal and economic institutions seem at a loss to cope with the crisis, but not for want of trying. There are lots of plans out there, but none seems satisfying. From an academic’s standpoint, it’s fascinating. Rational choice, on the one hand, and norms of fairness, on the other, are interacting in odd and sometimes surprising ways.

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  November 3, 2008 at 12:20 am   Posted in: Property Law   Print This Post   7 Comments

Heller on Ubiquitous Market Failures

posted by Frank Pasquale

Via Tyler Cowen, Michael Heller’s book The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. From the Amazon Page:

25 new runways would eliminate most air travel delays in America. Why can’t we build them? 50 patent owners are blocking a major drug maker from creating a cancer cure. Why won’t they get out of the way? 90% of our broadcast spectrum sits idle while American cell phone service lags far behind Japan’s and Korea’s. Why are we wasting our airwaves? 98% of African American–owned farms have been sold off over the last century. Why can’t we stop the loss? All these problems are really the same problem—one whose solution would jump-start innovation, release trillions in productivity, and help revive our slumping economy.

Usually, private ownership creates wealth, but too much ownership has the opposite effect—it creates gridlock. When too many people own pieces of one thing, whether a physical or intellectual resource, cooperation breaks down, wealth disappears, and everybody loses. Heller’s paradox is at the center of The Gridlock Economy. Today’s leading edge of innovation—in high tech, biomedicine, music, film, real estate—requires the assembly of separately owned resources. But gridlock is blocking economic growth all along the wealth creation frontier.

Heller has been a tireless chronicler of market failures and this looks like a particularly timely book. Consider, for instance, how hard it is to deal with the subprime mess as the slicing and dicing of pools of mortgages has made it very difficult to trace who owns any particular loan. And on a more mundane level–consider how “[e]xtending Amtrak service [114 miles] from Boston to Portland[, Maine] . . . has taken longer than building the transcontinental railroad.”

  July 6, 2008 at 8:32 pm   Posted in: Intellectual Property, Property Law   Print This Post   4 Comments

Attention All Flatlanders, Fudgies, and Other-State Equivalents

posted by Sarah Waldeck

This post uses my guest stint to try to collect information for a project about the inheritance and management of family cottages. As the graphic suggests, at least my inquiries are seasonally-appropriate!

I began to think about family cottages in an academic way last summer. While browsing in a small resort town, I saw the local bookstore had more than 20 copies of a text entitled Saving the Family Cottage on its reserve shelf. When I commented on the book’s apparent popularity, the shopkeeper informed me that it was outselling the new Harry Potter. I was intrigued, but not surprised. In this place where visitors boast about the length of their family’s connection to the town, discussions about the fates of family cottages are popular pastimes.

Family cottages go by many names. They are called summer houses, or cabins, or referred to by their location: the lake, the Cape, up north, the shore. They are where families gather to vacation, often at the same time year after year; where grandchildren visit their grandparents; and where cousins play with cousins. As Professors Judith Huggins Balfe and Kenneth Huggins have explained, they are “‘family houses,’ sometimes more than the year-round home” and often “the places of our strongest memories, childhood and adult.” Some of these properties are grand and others are modest. Some are owned by wealthy families, others by families who could not afford them but for an investment made by an ancestor.

Notwithstanding its sentimental glory, the family cottage can be a source of tremendous angst about what will happen when its current owners die, or how the place is currently used and managed, or both. In the absence of more sophisticated estate planning, at some point these cottages are likely to be governed by the law of a tenancy in common. That is, the property is devised in equal shares to siblings, who may hold the cottage long enough to pass it on to their children, and so forth. My project explores the norms and traditions that govern these sorts of households, the role that property law plays, and what, if any, legal reforms should be made in this context.

So here’s my first request: if you are involved in a family cottage, tell me your story. How many generations has the property been in your family? How do you handle carrying costs, improvements, scheduling and use? Is your cottage governed by a tenancy-in-common or other legal arrangement? Is your arrangement rocky or smooth? Some first-rate sociology has been done in this area already, but I would like to supplement with some casual empiricism. So write a comment or send me an email at waldecsa@shu.edu. (One of the things I’ve been struck by while working on this project is how many people have a story to tell.)

Here’s my second request: if you are attorney who advises clients about family cottages, I’d be very interested in talking to you about the sort of advice you give and the legal vehicles you tend to favor. Please send me an email at waldecsa@shu.edu so that we can get in touch.

P.S. For the uninitiated, a “fudgie” is a person who vacations in northern Michigan. A “flatlander” is a tourist from Illinois. Sometimes (as here) these terms are used with affection, but usually they are not intended to be kind!

  June 13, 2008 at 4:00 pm   Posted in: Property Law   Print This Post   2 Comments

Eminent domain, equity and efficiency, and subjective values

posted by Kaimipono D. Wenger

Over at Volokh, Ilya Somin highlights an interesting WaPo article about takings. The U.S. Army wishes to expand its training ground in Colorado, and this will require taking land from several ranchers. The WaPo piece discusses rationales for the taking, as well as various property-holder objections. In his own take, Somin seems quite doubtful of the propriety of this particular taking. He writes,

As a legal matter, there is no doubt that this potential use of eminent domain is constitutional . . . However, the fact that the Army’s plan is constitutional doesn’t necessarily mean that it is equitable or efficient.

From there, Somin makes two arguments. First, he argues that taking of private land should be avoided where other options exist:

There remains the question of whether a facility of comparable quality could be built without resorting to condemnation. The U.S. government already owns hundreds of millions of acres of desert property in the Western states, much of which is not being used. Perhaps the Pentagon could build a new training facility on land the federal government already owns; if so, that would be far preferable to displacing private property owners.

Second, he suggests that, where property is taken, property owners (these owners in particular) should receive over-market compensation intended at least in part to make up for loss of subjective property value:

Market value compensation often fails to fully replace the owners’ losses. If they valued the land at the market price or less, they presumably would have sold it already; their decision to hold onto it is an implicit signal that they place a “subjective value” on the property above its market price. In this case, subjective value concerns are particularly serious. Many of the owners’ families have lived on the land for generations, and would lose most of their livelihood if forced to move. Even if the Court is right to hold that fair market value compensation is all the Constitution requires, this is one case where the feds should pay more.

In a number of areas, Somin’s analysis seems problematic.

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  November 13, 2007 at 2:14 pm   Posted in: Property Law   Print This Post   2 Comments

Flakes on a Train

posted by Frank Pasquale

The yammer-jammer I described over the weekend incites a spirited discussion at the NY Times letters page today. Here are two interesting responses:

I’m usually trying to read when someone near me starts talking on the phone and I can’t concentrate. (Why is it that people on the phone are so much louder than anyone else talking on the bus? Something about loss of inhibitions, I guess.) Anyway, I just start reading my book out loud. Loud enough so that I can hear myself over the cellphone talker. My favorite part is when the confronted cellphone talker replies, “Well, this is public space!” Since when did it become O.K. to be more obnoxious in public than you’d ever be in private?

Others are more direct:

[Someone the middle of the train] in which I was riding . . . . was blabbing loudly and nonstop on her cellphone. As my fellow riders rolled their eyes and gritted their teeth, I turned my head slightly over my shoulder and yelled (I have a pretty strong yell), “Shaddup already!” It not only had the intended effect, but it also was perfectly legal, and I saved the 200 bucks of a jammer.

Another writer suggests that “train conductors be empowered to issue a summons to the blabber-mouths.” But I have a sense that the wireless lobby may well get the FCC to preempt such laws. Who knows, perhaps it won’t be satisfied till retaliatory book readings and spirited “shaddup”s are banned as interference with the rights of the yellular.

  November 6, 2007 at 7:58 am   Posted in: Current Events, Privacy, Property Law   Print This Post   2 Comments

Real Estate Appraisals and Copyrighting Facts

posted by Eric Goldman

As reported by the Washington Post, an interesting intellectual property dispute is brewing in the real estate appraisal business. On one side are traditional real estate appraisers, who charge several hundred dollars for an appraisal that typically involves an onsite inspection. On the other side are online appraisal services that, relying on their databases and some algorithms, offer lenders an instantaneous appraisal at a small fraction of the cost.

The traditional appraisers are upset because the online services may be extracting information from their appraisals and using that information to improve their databases (and thus the accuracy of their online appraisals). Taken to its logical extreme, as online appraisers get better databases by capturing data from the traditional appraisers’ inspections, traditional appraisers will destroy their own industry.

Not surprisingly, the traditional appraisers are looking for ways to preserve their market niche, and intellectual property doctrines can be great tools to hinder marketplace competition. So the WaPo article mentions that the traditional appraisers are considering their copyrights in their appraisals. After all, traditional appraisers put in their sweat of the brow, so shouldn’t they be rewarded? (The article provides some good quotes reflecting this paradigm).

We know how this argument goes. Copyright doesn’t protect the labor invested to generate facts. Appraisers probably can copyright the report in its entirety, and they may even be able to copyright their specific price estimate (see, e.g., CDN v. Kapes), but there should be no way for appraisers or anyone else to obtain copyright protection for a home’s basic specifications (e.g., square footage, age, number of rooms). As a result, copyright law does not provide appraisers with any effective way to restrict online databases from extracting facts from their reports. Thus, if traditional appraisers are looking for a tool to restrict competition from online factual databases, copyright law may not be very helpful.

Even if copyright law isn’t availing, traditional appraisers have other tools at their disposal, including:

* providing services that online database providers can’t, such as the increased accuracy associated with the onsite inspections.

* restricting access to the appraisals. Right now, it appears that the biggest online database service gets some data by providing an online tool for appraisers to submit their reports to lenders—thus, allowing them to extract facts from appraisals that cross the network. Traditional appraisers could try to discourage lenders from using this delivery service, thereby making it harder or impossible for the online service to see the appraisals. Alternatively, if they keep using this delivery service, traditional appraisers could negotiate a contract that limits the service’s ability to extract facts. (The contract is probably some standardized click-through agreement, but it’s negotiable in theory).

* if traditional appraisers really think they are losing money, they could just increase their fees to lenders to cover the lost value (good luck!).

But despite these options, the long-term prognosis may not be very good. A good appraisal always will need an onsite inspection, but just about every other aspect of the appraisal business can be replicated or eliminated through online mechanisms. Thus, it could be that the Internet is disintermediating the appraisal industry, and no amount of rear-guard intellectual property saber-rattling will change that fact.

  January 28, 2007 at 11:59 pm   Posted in: Intellectual Property, Property Law   Print This Post   6 Comments

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