Law Commons^™

Official Maps And The Regulatory Takings Problem: A Legislative Solution, Trent Andrews

BYU Law Review

No abstract provided.

Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, Diane E. Thompson

Washington Law Review

Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications. One reason foreclosures outpace modifications is that the mortgage-modification decision maker’s incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer’s main function is to collect and process payments from …

Climate Change And The Evolution Of Property Rights, Holly Doremus

UC Irvine Law Review

No abstract provided.

No Room For Squatters: Alaska’S Adverse Possession Law, Jennie Morawetz

Alaska Law Review

In 2003, the Alaska Legislature dramatically changed Alaska’s adverse possession law. Alaska’s new law curtails the application of adverse possession in a way that is more stringent than any other state’s law. This Note summarizes Alaska’s adverse possession law prior to 2003 and discusses how it was changed in 2003 by the passage of Senate Bill 93. The Note then explores some implications of the new law: the ability to extinguish but not create private easements by prescription, the importance of recording, and the potential for a “good faith squatter” to lose land she believes is hers.

The Public Pore Space: Enabling Carbon Capture And Sequestration By Reconceptualizing Subsurface Property Rights, James Robert Zadick

William & Mary Environmental Law and Policy Review

No abstract provided.

Real Property, Linda S. Finley

Mercer Law Review

The survey period, June 1, 2010 through May 31, 2011, saw continued dire economic times for Georgia and the entire United States, which were marked with a record-breaking number of foreclosures. Georgia courts and the Georgia General Assembly began to pay attention to the foreclosure process, the diminution of property values, and how these issues affect Georgia families. Although the purpose of this Article is not to specifically address these serious issues, judicial and legislative trends indicate that these issues will be around for some time.

Property's Morale, Nestor M. Davidson

Michigan Law Review

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

Unclaimed Property And Due Process: Justifying 'Revenue-Raising' Modern Escheat, Teagan J. Gregory

Michigan Law Review

States have long claimed the right to take custody of presumably abandoned property and hold it for the benefit of the true owner under the doctrine of escheat. In the face of increasing fiscal challenges, states have worked to increase their collection of unclaimed property via new escheat legislation that appears to bear little or no relation to protecting the interests of owners. Holders of unclaimed property have raised substantive due process challenges in response to these modern escheat statutes. This Note contends that two categories of these disputed laws-those shortening dormancy periods and those allowing states to estimate a …

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Deed Covenants Of Title And The Preparation Of Deeds: Theory, Law, And Practice In Arkansas, Lynn Foster, J. Cliff Mckinney Ii

University of Arkansas at Little Rock Law Review

No abstract provided.

Property Law—Homestead Exemption—A Beneficiary Interest Can Support A Homestead Exemption In Arkansas And A Look At Other Interests Sufficient To Support A Homestead Exemption. Fitton V. Bank Of Little Rock, 2010 Ark. 280, __ S.W.3d __., Seth Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

Two Faces: Demystifying The Mortgage Electronic Registration System's Land Title Theory, Christopher L. Peterson

William & Mary Law Review

In the mid-1990s, mortgage bankers created Mortgage Electronic Registration Systems, Inc. (MERS) to escape the costs associated with recording mortgage transfers. To accomplish this, lenders permanently list MERS as the mortgagee of record instead of themselves to avoid the expense of recording any subsequent transfers. MERS’s claim that it is both an agent of the lender and the mortgagee, and the huge gaps left in the public record, give rise to a range of legal issues. This Article addresses whether security agreements naming MERS as a mortgagee meet traditional conveyance requirements and discusses the rights of counties to recover unpaid …

Earth Jurisprudence And Lockean Theory: Rethinking The American Perception Of Private Property, Traci Lynne Timmons

Environmental and Earth Law Journal (EELJ)

Earth Jurisprudence and Lockean Theory

Abstract by Traci Lynne Timmons

Thomas Berry, father of the Earth Jurisprudence movement, called for re-examining human-Earth relations. Earth Jurisprudence aspires to promote a greater respect for nature and all living things on Earth, aiming to intertwine Earth’s natural law with the body of law that governs humanity. This paper explores Earth Jurisprudence as an alternative to the property regime in the United States. It examines the fundamental principles of property ownership, frequently attributed to the philosophy of John Locke, but digs deeper into these “Lockean” roots to reveal important caveats to Locke’s general principles …

Title Examinations, When Is Action On The Security Instrument Barred, John W. Fisher Ii

West Virginia Law Review

No abstract provided.

Vertical Land Utilization By Means Of Storey Housing Development In Urban Are, Arie Sukanti

Indonesia Law Review

Many international covenants and constitutions have recognized housing and shelter needs as one of many human right aspects. This paper intends to clarify the particular issues relating to paragraph 19 of the United Nations Millennium Declaration, on resolving city slum problems. The Declaration has also embedded initiative to achieve a significant improvement in the lives of at least 100 million slum dwellers as proposed in the “Cities without Slums” by 2020. In the local perspectives, based on existing regulations analysis, the Special Region (DKI) of Jakarta has many problems on forthcoming implementation. Vertical land utilization model by way of storey …

Evolving From Dominion To Communion: How Legal Rights For Nature Can Exist In Balance With Individual Property Rights In A Global Commons, Dan Leftwich

Environmental and Earth Law Journal (EELJ)

Abstract coming soon.

Original Acquisition Of Property: From Conquest & Possession To Democracy & Equal Opportunity, Joseph William Singer

Indiana Law Journal

2010 Harris Lecture, delivered April 5, 2010, Indiana University, Maurer School of Law, Bloomington, Indiana

Examining The Public Use Doctrine And Whether Expanding A Private University Is A Public Use, Chad Olsen

Brigham Young University Journal of Public Law

No abstract provided.

"Going Green" The Wrong Way: How Governments Are Unconstitutionally Delegating Their Legislative Powers In Pursuit Of Environmental Sustainability, Brandon L. Boxler

Legislation and Policy Brief

Through either executive or legislative power, state and local governments are rapidly effecting policies that encourage environmental sustainability. Many of these policies have logically targeted buildings and infrastructure, both of which have a significant adverse impact on the environment. In the United States, 38 percent of the nation’s carbon dioxide emissions and 67 percent of its electricity usage come from buildings. New laws and policies are attempting to decrease these figures by requiring construction projects to “go green” and implement sustainable building practices. These legal initiatives have the potential to create substantial environmental benefits by reducing energy consumption, greenhouse gas …

A Foxy Hedgehog: The Consistent Perceptions Of Carol Rose, Jedediah Purdy

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

The Inevitable Trend Toward Universally Recognizable Signals Of Property Claims: An Essay For Carol Rose, Robert C. Ellickson

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Response, Carol M. Rose

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

The Florida Beach Case And The Road To Judicial Takings, Michael C. Blumm, Elizabeth B. Dawson

William & Mary Environmental Law and Policy Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously upheld a state beach restoration project against landowner claims of an unconstitutional taking of the property. This result was not nearly as surprising as the fact that the Court granted certiorari on a case that turned on an obscure aspect of Florida property law: whether landowners adjacent to a beach had the rights to future accretions of sand and to maintain contact with the water.

The Court’s curious interest in the case was piqued by the landowners’ recasting the case from the regulatory taking …

The Backwards Gesture: Historical Narratives In Carol Rose's Property Scholarship, Daniel J. Sharfstein

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Rose's Human Nature Of Property, Henry E. Smith

William & Mary Bill of Rights Journal

Presented at the 2010 Brigham-Kanner Property Rights Conference.

Adverse Possession, Private-Zoning Waiver & Desuetude: Abandonment & Recapture Of Property And Liberty Interests, Scott Andrew Shepard

University of Michigan Journal of Law Reform

Adverse-possession doctrine labors under a pair of disabilities: a hesitancy by theorists to embrace the abandonment-and-recapture principle that informs the doctrine, and a substantial unwillingness of governments to abandon an antiquated and outmoded maxim shielding them from the doctrine's important work. Removing these disabilities will allow a series of positive outcomes. First, it will demonstrate that all would-be adverse possessors, not just those acting "in good faith" or with possessory intent, should enjoy the fruits of the doctrine. Second, it will provide valuable additional means by which the public may monitor the performance of government employees, and additional discipline to …

Conservation Easements And The Doctrine Of Changed Conditions: A Comparative Analysis Of The New York And Arkansas Statutes, Daniel P. Harvey

Buffalo Environmental Law Journal

No abstract provided.

Adverse Possession And Boundary By Acquiescence In Arkansas: Some Suggestions For Reform, Lynn Foster, J. Cliff Mckinney Ii

University of Arkansas at Little Rock Law Review

No abstract provided.

Government Property And Government Speech, Joseph Blocher

William & Mary Law Review

The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have—physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property …

Has The Time For Large Gaming Property Involved Reits Finally Arrived?: A Review Of The Potential For Reit Investment In Destination Gaming Resort Properties, Simon Johnson

UNLV Gaming Law Journal

Destination gaming resorts demand massive amounts of capital in order to fund their investment in real property, much of which comprises areas where they realize predominantly passive business, including the hotel tower. Consequently, they generate substantial income from passive business, such as fees for hotel occupancy, even as most of their income is attributable to active business, such as gaming and personal services. Because they blend separable passive and active real property, a REIT can theoretically acquire all or some of the real property, realizing income under an operator lease with a substantially unrelated gaming or hotel lessee. Alternatively, a …