LEGAL ASPECTS OF PROPERTY AND LAND-USE



11.493: LEGAL ASPECTS OF PROPERTY AND LAND-USE:

COMPARATIVE DIMENSIONS

Fall 2013

WEDNESDAYS: 2 - 5 PM, Room 9-450B

Professor Balakrishnan Rajagopal

Phone: 617-258-7721; Email: braj@mit.edu

Office hours: Tuesdays 4-6 pm or by appointment

DESCRIPTION

This course is designed to offer an advanced introduction to key legal issues that arise in the area of property and land-use in American law, with a comparative focus on the laws of India and South Africa, and illustrations from other countries as appropriate. The focus of the course is not on law itself, but on the policy implications of various rules, doctrines and practices which are covered in great detail including legal aspects of the housing and sub-prime mortgage crisis. Legal rules regulating property are among the most fundamental to American, and most other economies and societies. They figure prominently in city and local governance and economic development, in areas as diverse as housing, zoning, environmental policy, and international development. Virtually every public policy and planning issue has a ‘property angle’ to it, which makes it essential to know how it works.

The main focus is on American property and land use law due to its prominence in international development policy and practice as a model, though substantial comparative legal materials are also introduced from selected non-western countries such as India and South Africa. In these legal settings, it is commonly believed that under American law, property is absolute. One question we will ask throughout the course is how well-founded this notion of absolute property is, under American law. Connected to this idea of absolute property is the notion of property as the ownership of ‘things’. We will examine multiple strands in the law of property that equally emphasize social relations between individuals, community and other actors, as opposed to commoditized understandings. Another theme running through the course is the extent to which judges and legal decision-makers refer to non-legal justifications to reach their decisions and the way these justifications construct and are constructed by conceptions of culture, democracy, gender and race that inform human interactions. Supplemental readings from other areas such as feminist theory, critical race theory, critical legal theory, law and society and law and economics will be used to illuminate these issues.

In planning law and practice, property and land use law is often narrowly construed to mean only public law regulation such as zoning. We will critically examine this approach by expanding the focus on how private individuals and entities use law to regulate land use, and how courts influence these supposedly private agreements through their decisions. A critique of this public-private divide is also one of the themes running through this course.

The course is divided into five parts. In the first part, we will consider the meaning of property in law, the various justifications for property and the motives behind those justifications. In the second part, we will examine a number of legal doctrines that qualify absolute property by introducing notions of fair access and fair use, and ask questions about the policy basis of those notions. In the third part, we will discuss the legal doctrines behind public planning of land-use, such as zoning and the relationship between private property and sovereignty. In the fourth part, we will focus on the various private restrictions over land-use in the public interest, in both residential and commercial sectors. The final part will focus on the current trends in comparative property and land use law in India and South Africa as well as the current international policy and legal developments that have an impact on how many developing countries regulate property and land-use.

The course will use a casebook, Joseph William Singer, Property Law: Rules, Policies and Practices (5rd Edition, 2010), and a set of supplementary materials. The casebook can be purchased at the Coop, or online at various book stores like , while the supplementary materials will be posted on the course website on stellar. The book will also be available at the Rotch library for reference.

Discussions will focus on cases most of the time, not for the law as such, but for the policy justifications. Students are encouraged to link up the principles and policies to their own graduate research during class participation.

Grading

Grading for this course will be based mainly on one final analytical paper not exceeding 25 pages (double-spaced) (50%) and two 5-page papers (double spaced) (40%) on topics selected by the students. The topics for short papers may be of a general nature or be on specific cases, but in either case the papers must show a mastery of the themes covered and draw upon the materials in this course. The due dates are noted on the syllabus and late submissions will not be accepted under any circumstances.

The final paper topic must be chosen well in advance by the students in consultation with the instructor, and the paper is due on the date noted in the syllabus on the last page – delayed submissions will affect grade. The papers must be submitted in Word or PDF on the homework section of the course stellar site. Vigorous class participation (remaining 10%) is expected and encouraged.

I will be available to meet with students during my office hours, on Tuesdays between 4 and 6 PM. To set up appointments at other times, please email me or my assistant, Phil Sunde.

READING ASSIGNMENTS

PART I: PROPERTY, JUSTIFICATIONS AND COMPETITION

1. Class 1: 9/04/13 - Introduction to the course:

2. Class 2: 9/04/13 - Background:

• Singer: pp.xliii-lxii; pp.177-183.

• Morton Horwitz, The Transformation of American Law, 1780-1860 (1977), chapter 2.

Recommended:

• Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (1994), introduction and conclusion.

• Carol M. Rose, The psychologies of property, in The Philosophical Foundations of Property Law, J. E. Penner and H. E. Smith, eds., Oxford University Press, 2013 available at

3. Class 3: 9/11/13 - First possession and Conquest:

• Singer: pp. 97-131.

• Robert Williams, Jr., American Indian in Western Legal Thought (1990), pp.246-51, chapter 7.

4. Class 4: 9/11/13 - First possession and Labor:

• Singer: pp.160-164; pp.131-146.

• Carol M. Rose, “Possession as the origin of property”, 52 U.Chicago. L. Rev. 73 (No.1, Winter 1985)

Recommended:

• Stephanie Coontz and Peta Henderson (eds.), Women’s work, Men’s property: The origins of gender and class (1986), pp.108-155.

• R. Hirschon, Introduction, in R. Hirschon (ed), Women and Property, Women as Property (1984)

5. Class 5: 9/18/13 - Competition versus property including corporations

• Singer: Re-read pp.131-146; pp.231-239; pp.1216-1229.

• Local 1330, United Steel Workers of America v. United States Steel Corporation, 631 F.2d 1264 (6th Cir. 1980) (available on Lexis-Nexis)

• Harold Demsetz, Toward a Theory of Property Rights, 57 Am.Econ.Rev.Pap & Proc. 347 (1967), pp.347-358.

• Robert C. Ellickson, Property in Land, 102 Yale L.J. 1315 (1993), pp.1322-1335; 1341-1344.

Recommended:

• Barry C. Field, The evolution of property rights, 42 Kyklos 319 (1989).

6. Class 6: 9/18/13 – Courts, policy and flexibility:

• Singer: pp.337-348.

• Carol Rose, Crystals and Mud in Property law, 40 Stan.L.Rev. 577 (1988), pp.1-6; 19-30.

• Duncan Kennedy, A Critique of Adjudication: fin de siecle (1997), chapter 2.

Recommended:

• Marc Galanter, Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law, 19 J.Legal Pluralism 1 (1981).

• Duncan Kennedy, A Critique of Adjudication: fin de siecle (1997), chapter 6.

PART II: PROPERTY, FAIRNESS AND ACCESS

1. Class 7: 9/25/13 - Security of property and Adverse possession:

• Singer: pp.281-332.

• Robert C. Ellickson, The untenable case for an Unconditional Right to Shelter, 15 Harv.J.L.&Pub.Pol’y 17 (1992), pp.17, 20-28, 32-34.

• Eduardo Penalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (2010), chapter 3.

2. Class 8: 9/25/13 - Public policy limits on Trespass:

• Singer: pp. 3-32.

Recommended:

• Intel Corp. v. Hamidi, 71 P.3d 296 (Cal, 2003) (available on Lexis-Nexis).

• United Food and Commercial Workers’ Union, Local 919 AFL-CIO v. Crystal Mall Associates L.P., 852 A.2d 659 (Conn, 2004) (available on Lexis-Nexis).

3. Class 9: 10/02/13 - Public accommodations, antidiscrimination and access rights:

• Singer: pp.33-56.

• Kimberle' Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv.L.Rev. 1331 (1988), pp. 1-7; 16-20; 48-70.

• Frank Michelman, “Possession vs. distribution in the constitutional idea of property”, 72 Iowa L. Rev. 1319 (No.5, July 1987), pp. 1-5; 26-42.

Recommended:

• Joseph W. Singer, No right to exclude: Public accommodations and private property, 90 Northwestern U.L.R. 1283 (1996), pp.6-29, 242-301.

4. Class 10: 10/02/13 - Public Trust, Commons, and private property:

• Singer: pp.56-69.

• Carol Rose, The Comedy of the Commons: Custom, Commerce, And Inherently Public Property, 53 University of Chicago Law Review 711 (1986), pp.711-723; 727-730; 773-781.

Recommended:

• Richard Delgado, Our Better Natures: A Revisionist View of Joseph Sax's Public Trust Theory of Environmental Protection, and Some Dark Thoughts on the Possibility of Law Reform, 44 Vand.L.Rev.1209 (1991), pp.1209-1227.

• Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 Yale L.J. 549 (2001)

5. Class 11: 10/09/13 - Fair use of property, support easements and Nuisance:

• Singer: pp.348-357; pp.368-422;

• District of Columbia v. Beretta U.S.A. Corp., 872 A.2d 633 (DC, 2005) (available on Lexis-Nexis).

III. PROPERTY, PLANNING AND PUBLIC REGULATION

1. Class 12: 10/09/13 - Land-use planning and Zoning:

• Singer: pp.1027-1038; pp.1014-1026.

• Zuckerman v. Town of Hadley, 813 N.ED.2d 843 (Mass, 2004) (available on Lexis-Nexis).

• Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (available on Lexis-Nexis).

• Daniel R. Mandelker & Roger A. Cunningham, Planning and Control of Land Development, 1-24 (3rd ed., 1990).

Recommended:

• Andrew J. Cappel, A Walk along Willow: Patterns of Land Use Coordination in Pre-zoning New Haven (1870-1926), Note, 101 Yale L.J. 617 (1991), pp.617-637.

FIRST 5-PAGE PAPER DUE ON 10/10/11

2. Class 13: 10/16/13 - Land-use planning, limits to zoning and environmental regulation

• Singer: pp.1038-1068.

• Koontz v. St. Johns River Water Management District (Supreme Court, Decided June 25, 2013) (available on Lexis Nexis)

• Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (available on Lexis-Nexis).

• Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (available on Lexis-Nexis).

• Thomas C. Schelling, “Prices as Regulatory Instruments”, in Incentives for Environmental Protection (Thomas C. Schelling, ed., 1983).

3. Class 14: 10/16/13 - Property, slavery, race and discrimination:

• Singer: pp.540-551; pp.925-948; pp.984-993; pp.255-261.

• Arguello v. Conoco Inc., 330 F.3d 355 (5th Cir, 2003) (available on Lexis-Nexis).

• Ezra Rosser, The Ambition and Transformative Potential of Progressive Property, 101 Cal.L.Rev. 107 (2013).

Recommended:

• Richard T. Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994), pp.1841-47; 1860-1885; 1918-1920.

4. Class 15: 10/23/13 - Property and sex-based discrimination:

• Singer: pp.948-974; pp.994-1003.

Recommended:

• Carol Rose, “Women and property: Gaining and losing ground”, 78 Virginia L. Rev. 421 (1992), pp.421-459.

5. Class 16: 10/23/13 - Property and economic discrimination:

• Singer: pp.980-984; re-read pp.1014-1026; pp.807-816.

6. Class 17: 10/30/13 - Property, sovereignty and Takings:

• Singer: pp.1071-1093; pp.1103-1168.

• Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, 130 S.Ct. 483 (2010) (available on Lexis Nexis).

• North Adams Apartments L.P. v. City of North Adams, 2011 Mass.App. Lexis 41 (App.Ct.2011) (available on Lexis Nexis).

• Frank Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165 (1967), pp.1165-1169; 1214-1238; 1245; 1253-1258.

IV. PROPERTY, LAND-USE AND PRIVATE RESTRAINTS

1. Class 18: 10/30/13 - Servitudes, Licenses and Easements:

• Singer: pp.423-462; p.475.

2. Class 19: 11/06/13 – Covenants:

• Singer: pp. 475-501; pp. 512-518; pp.526-540.

3. Class 20: 11/06/13 - Common Ownership and Housing:

• Singer: pp. 663-671; pp. 532-540; pp. 551-573.

• Duncan Kennedy, “Neither the Market nor the State: Housing Privatization Issues”, in G.Alexander & G. Skapska (eds), A Fourth Way?: Privatization, Property and the Emergence of New Market Economies (1994), pp. 253-266.

Recommended:

• Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 Cornell L. Rev. 1 (1989), pp.1-6; 33-61.

V. COMPARATIVE LAW OF PROPERTY AND LAND USE AND INTERNATIONAL DEVELOPMENT POLICY

NO CLASS ON 11/13/13 - CANCELLED

1. Class 21: 11/20/13 - Redressing the legacy of apartheid in South Africa: Rural Land restitution

• Constitution of South Africa (relevant provisions)

• 1994 Restitution of Land Rights Act 22.

• 1996 Land Reform (Labor Tenants) Act 3.

• 1997 Extension of Security of Tenure Act 62.

• Vinodh Jaichand, The Restitution of Land Rights (1997), pp.1-76.

• Marinda Weideman, Who shaped South Africa’s Land Reform Policy?, Politikon (November 2004), vol.31(2), pp.219-232.

• Communal Land Rights Act Judgment (2010) CCT 100/09 ((for all South African cases, go to and then click on the relevant link or google the entire case)

• Alexor Ltd. And the Government of the Republic of South Africa v. Richtersveld community, CCT 19/03, 2003.

• Restitution of Land Rights Amendment Bill, 2013 (available at )

Recommended:

• City Council of Springs v. Occupants of the Farm Kwa-Thema, LCC R10/98 (2 September 1999) (same as above).

• The Minister of Land Affairs of the Republic of South Africa and another v. Omar Slamdien and others, LCC 107/98 (10 February 1999).

• Former Highlands Residents: Ash and others v Department of Land Affairs

LCC116/98 (10 March 2000) (go to and then click on the relevant link, especially paragraphs 21-38).

• Theunis Roux, Pro-poor Court, Anti-poor outcomes: Explaining the performance of the South African Land Claims Court, 20 South African Journal of Human Rights 511 (2004) (go to and then click on the relevant link).

• Jeremy Waldron, Superseding Historic Injustice,103 Ethics 4 (1992).

• Demopoulos and Others v. Turkey [GC], nos. 46113/99, 3843/02, 3751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04 §70, Eur. Ct. H.R. 2010-IV

2. Class 22: 11/20/13 - Urban dilemmas: Land invasions, housing rights and evictions

• 1998 Prevention of Illegal Eviction from and Unlawful occupation of land Act No.19.

• Government of R.S.A. v. Grootboom, CCT 11/00 (4th October 2000, Constitutional Court of South Africa) (go to and then click on the relevant link).

• Port Elizabeth Municipality v. Various Occupiers, CCT 53/03, 2004 ((go to and then click on the relevant link).

• President of the Republic of South Africa and another v. Modderklip Boerdery and Another, CCT 20/04, 2005 (go to and then click on the relevant link).

• Residents of Joe Slovo Community W Cape v Thubelisha Homes & Others, CCT 22/08 (2009)

Recommended:

• Marie Huchzermeyer, “Land invasions, evictions and the law in South Africa”, unpublished draft, 2002.

• Murray Wesson, Grootboom and Beyond: Assessing the Socio-Economic Jurisprudence of the South African Constitutional Court, 20 South African Journal of Human Rights, 284 (2004) (go to and then click on the relevant link).

• Minister of Public Works and others v Kyalami Ridge Environmental Association and others, Constitutional Court - CCT55/00, 29 May 2001 (go to and then click on the relevant link).

• Jeanette Harksen v. Michael Lane NO and Others, CCT 9/97 (7 October 1997, Constitutional Court of South Africa) (go to and then click on the relevant link).

• Stephen Berrisford, “Law and Urban Change in the New South Africa”, in Illegal Cities: Law and Urban Change in Developing Countries (Edesio Fernandes and Ann Varley eds., 1998), pp. 213-230.

SECOND 3-PAGE PAPER DUE ON 11/21/11

3. Class 23: 11/27/13 – Contestation over property rights in India:

• Dharma Kumar, Colonialism, Property and the State (1998), pp.135-170; pp.311-327.

• Constitution of India (relevant provisions).

• Granville Austin, Working a Democratic Constitution: The Indian Experience (1999), chapters 3 and 4.

Recommended:

• Land Acquisition Act, 1894.

• The Urban Land (Ceiling and Regulation) Act, 1976 and The Urban land (Ceiling and Regulation) Repeal Act, 1999.

• Amanda Perry, “Law and Urban Change in an Indian City”, in Illegal Cities: Law and Urban Change in Developing Countries (Edesio Fernandes and Ann Varley eds., 1998), pp. 89-103.

• Bina Agarwal, A Field of One’s Own: Gender and Land Rights in South Asia (1994), chapter 5.

4. Class 24: 11/27/13 – Eminent Domain, Development displacement, contests over land and housing rights:

• Priya Gupta, The Peculiar Circumstances of eminent domain in India, Osgoode Hall L.J., vol.49 (2012) (available at )

• Narmada Bachao Andolan v. Union of India and others, (2000) 10 SCC 664 (available on-line at ).

• Balakrishnan Rajagopal, “Limits of law in counter-hegemonic globalization: The Indian Supreme Court and the Narmada Valley struggle”, in Boaventura de Souza Santos and César A. Rodríguez-Garavito, (eds.), Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press, 2005).

Recommended:

• Michael Cernea, Public policy responses to development-induced population displacements, 31(24) Economic and Political Weekly 1515-23 (1996).

• M.L. Upadhyaya, “Agrarian reforms” in Fifty Years of the Supreme Court of India: Its Grasp and Reach (S.K. Verma and Kusum eds., 2000).

• Jessie Hohmann, Visions of Social Transformation and the Invocation of Human Rights in Mumbai: The Struggle for the Right to Housing, 13 Yale H.R. & Dev. L.J. 135 (2010)

• Usha Ramanathan, “A Word on Eminent Domain” in in Lyla Mehta ed., Displaced by Development – Confronting Marginalisation and Gender Injustice (2009), p. 133.

5. Class 25 - 12/04/13 - International Development Policy Prescriptions of Property:

• David Kennedy, Some Caution about property rights as a recipe for economic development, 1 Accounting, Economics, and Law 1, pp 1-62 (2011).

• Geoffrey Payne, Urban land tenure policy options: titles or rights? 25 Habitat International 415-429 (2001).

• Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998).

• Alain Durand-Lasserve, “Law and Urban Change in Developing Countries: Trends and Issues” in Illegal Cities: Law and Urban Change in Developing Countries (Edesio Fernandes and Ann Varley eds., 1998), pp. 233-257.

Recommended:

• World Bank, “Legal Institutions and the Rule of Law” in World Development Report: From Plan to Market (1996).

• World Bank, “Introduction” in World Development Report: Building Institutions for Markets (2002).

• G. Feder and D. Feeny, Land tenure and Property rights: Theory and Implications for Development Policy, 5(1) World Bank Economic Review 135 (1991)

V. CONCLUSION

Class 26: 12/11/13 – Final Paper presentation.

FINAL PAPER DUE ON DECEMBER 14TH BY 5 PM

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