Nov. 17, 2014 | Volume XXII, Issue 14

Wolf Lecturer looks at intersection of property law, climate change

Published: March 31st, 2014

Category: News

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University of California at Berkeley Law Professor Daniel A. Farber delivered the seventh annual Wolf Family Lecture at UF Law March 24. (Photo by Kelly Logan)

By Matt Walker

Property law, with roots reaching back centuries, is not generally thought of as a nimble or frequently changing area of western law. But with the effects of climate change becoming increasingly evident, the longstanding legal field will be brought into the spotlight in coming years, and in some cases forced to adapt.

University of California at Berkeley Law Professor Daniel A. Farber looked at the intersection of property law and the evolving environment in “Property Rights and Climate Change: Challenges and Opportunities,” at the seventh annual Wolf Family Lecture at UF Law. Farber addressed a capacity crowd in the Martin H. Levin Advocacy Center courtroom March 24, emphasizing the importance of acknowledging the real changes to Florida’s coastline in the not-so-distant future.

“It’s not so much future generations anymore,” Farber said, “it’s people in this room, your younger siblings, your children, children who are being born right this moment who are going to be affected by this, so it really is not too early to start worrying.”

Farber presented evidence establishing that increasing temperatures and coastal erosion are real concerns for the future of Florida and other coastal regions around the world, and property issues will be a major issue moving forward.

In looking at how to approach this increasing reality, Farber presented ways in which current property rights can be viewed as an impediment, and conversely ways in which property rights can serve as part of the solution.

“What happens when a coastal property is faced by ever-increasing encroachments from the sea?” Farber asked. “There is a clash there between our idea of preserving property rights and having some kind of a sensible strategy for getting ourselves and our society out of the way as the sea rolls in.”

Farber pointed out how difficult it can be to determine how best to approach the situation.

He said if the government is allowed to place restrictions on what landowners can do with their property due to a changing coastline – such as restricting how close to build to the water or preventing the use of “hard-armoring” (sea wall) to protect their land – property values could plummet. On the other hand, if a sea-side cottage is swallowed by the ocean, is it the government’s fault for not stepping in or simply a bad investment?

One possible solution to ease the blow of losing land to the sea might be transferrable development rights – the owner may be given rights to develop in another part of the community.

Farber also noted that there are established guidelines going back to the 1300s regarding accretion (the gradual shift in land) and avulsion (an abrupt substantial shift in land) that can often be applied to modern changes in property lines due to the presence of water.

Farber pointed out that real property lawyers will be a big part of deciding just how these questions and concerns will be addressed.

“I think real property lawyers are going to be involved in a lot of this stuff in a way that will change a little bit the nature of the practice,” Farber said. “There are going to be a lot of issues for clients to worry about, connecting to climate changes, there are going to be a lot of risks to worry about, there are going to be a lot of changes in land use planning.”

Farber is the Sho Sato Professor of Law and the co-director of the Center for Law, Energy, and the Environment at the University of California at Berkeley. A member of the American Academy of Arts and Sciences and a Life Member of the American Law Institute, Farber serves on the editorial board of Foundation Press and as editor-in-chief of Issues in Legal Scholarship.

The Wolf Family Lecture Series was endowed by a gift from UF Law Professor Michael Allan Wolf, who holds the Richard E. Nelson Chair in Local Government Law, and his wife, Betty. Wolf is the general editor of a 17-volume treatise, Powell on Real Property. The treatise is the most referenced real property treatise in the country and is cited regularly by the courts, including several citations in the U.S. Supreme Court.

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