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Full-Text Articles in Law

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern Mar 2019

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts ...


Affordable Housing: Of Inefficiency, Market Distortion, And Government Failure, Michael R. Diamond Mar 2019

Affordable Housing: Of Inefficiency, Market Distortion, And Government Failure, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

In this essay, I examine the types of costs that are imposed on society as a whole due to the absence of a sufficient number of decent housing units that are affordable to the low-income population. These costs present themselves in relation to health care, education, employment, productivity, homelessness, and incarceration. Some of the costs are direct expenditures while others are the result of lost opportunities.

My hypothesis is that these costs are significant and offer, at the very least, a substantial offset to the cost of creating and subsidizing the operation of the necessary number of affordable housing units ...


Pascua V. Bayview Loan Servicing, Llc, 135 Nev. Adv. Op. 4 (Feb. 7, 2019), Scott Cooper Feb 2019

Pascua V. Bayview Loan Servicing, Llc, 135 Nev. Adv. Op. 4 (Feb. 7, 2019), Scott Cooper

Nevada Supreme Court Summaries

The Court determined that an individual who has been appointed special administrator of a decedent’s estate is entitled to participate in the Foreclosure Mediation Program if the property is the special administrator’s primary residence, and they retain an ownership interest through intestate succession laws.


How Bitcoin Functions As Property Law, Eric D. Chason Jan 2019

How Bitcoin Functions As Property Law, Eric D. Chason

Faculty Publications

Bitcoin replicates many of the formal aspects of real estate transactions. Bitcoin transactions have features that closely resemble grantor names, grantee names, legal descriptions, and signatures found in real property deeds. While these “Bitcoin deeds” may be interesting, they are not profound. Bitcoin goes beyond creating simple digital deeds, however, and replicates important institutional aspects of real estate transactions, in particular recordation and title assurance. Deeds to real property are recorded in a central repository (e.g., the public records office), which the parties (and the public) can search to determine title. When one grantor executes more than one deed ...


Say What You Mean! How Arkansas Courts Are Contradicting The Default Rule Of Tenancy In Common, Joel Hutcheson Jan 2019

Say What You Mean! How Arkansas Courts Are Contradicting The Default Rule Of Tenancy In Common, Joel Hutcheson

Arkansas Law Notes

In 2015, the Arkansas Court of Appeals ruled that a warranty deed with the grantees listed as “Herbert Love and Gloria Love” vested the property in a tenancy by the entirety. There was no language in the deed designating the grantees as a married couple, such as “husband and wife” or “tenants by the entirety.” In fact, the only way someone reading the deed would know that the grantees were married was that the grantees were also the grantors, where it listed them as husband and wife. The court made its decision by looking to precedent case law which states ...


The Street View Of Property, Vanessa Casado-Pérez Jan 2019

The Street View Of Property, Vanessa Casado-Pérez

Faculty Scholarship

Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example ...


Recreational Rights To The Dry Sand Beach In Florida: Property, Custom And Controversy, Alyson C. Flournoy, Thomas T. Ankersen, Sasha Alvarenga Jan 2019

Recreational Rights To The Dry Sand Beach In Florida: Property, Custom And Controversy, Alyson C. Flournoy, Thomas T. Ankersen, Sasha Alvarenga

UF Law Faculty Publications

At the close of the 2018 legislative session Florida Governor Rick Scott signed HB 631 into law. Included in the bill, which addressed a number of issues relating to actions for ejectment from real property, was an amendment to the Florida Community Planning Act entitled “Establishment of Recreational Customary Use.” The new statute immediately created a sandstorm of controversy as the media seized on what many in the public perceived to be a land grab over the public’s right to recreate on Florida’s sandy beaches. As it turns out, the story is considerably more nuanced, and neither the ...


Regulating Short-Term Accommodation Within Condominium, Douglas C. Harris Dec 2018

Regulating Short-Term Accommodation Within Condominium, Douglas C. Harris

Faculty Publications

Owning land within condominium, or strata property as it is known in British Columbia, includes holding an individual strata lot, a share of the common property, and the right to participate in governing the uses of the private and common property. Owners participate in governing through membership and voting rights in a strata corporation which has the responsibility to maintain the common property and the authority to establish bylaws that restrict the use of the common and private property. The corollary of membership and a voice in the affairs of the strata corporation is a duty to accept its governing ...


11th Marine Law Symposium: Legal Strategies For Climate Adaptation In Coastal New England 2018, Roger Williams University School Of Law Nov 2018

11th Marine Law Symposium: Legal Strategies For Climate Adaptation In Coastal New England 2018, Roger Williams University School Of Law

Marine Affairs Institute Conferences, Lectures, and Events

No abstract provided.


Howard V. Hughes, 134 Nev. Adv. Op. 80 (Oct. 4, 2018), Christian Ogata Oct 2018

Howard V. Hughes, 134 Nev. Adv. Op. 80 (Oct. 4, 2018), Christian Ogata

Nevada Supreme Court Summaries

The Court clarified the holding of Langevin v. York, and applied the presumptions outlined in Sack v. Tomlin to unmarried joint tenants. The Court held that before property may be partitioned and shares are proportionally divided between unrelated joint tenants, a party must overcome the presumption of equal ownership. If a party overcomes this presumption, the shares are proportionally divided based on the parties’ respective financial contributions to the initial purchase price, unless the other party can show a donative intent to gift an equal ownership interest.


Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson Oct 2018

Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses the legal circumstances arising when a state agency authorizes oil and gas production operations beneath a landowner’s land against that landowner’s wishes. One might assume that, if a landowner wants to preserve his or her land from oil and gas development, the landowner could simply refuse to allow drilling to occur beneath the land. However, neighbors may want to develop the oil and gas resources beneath their own land. To satisfy the neighbors’ wishes, an oil and gas producer must assemble mineral production rights on or beneath enough contiguous land to satisfy state spacing and ...


Section 3: Property Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law Sep 2018

Section 3: Property Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Wells Fargo, N.A. V. Radecki, 134 Nev. Adv. Op. 74 (Sep. 13, 2018) (En Banc), Yilmaz Turkeri Sep 2018

Wells Fargo, N.A. V. Radecki, 134 Nev. Adv. Op. 74 (Sep. 13, 2018) (En Banc), Yilmaz Turkeri

Nevada Supreme Court Summaries

The Court determined that: (1) Wells Fargo failed to present evidence of unfairness or irregularity that would invalidate the foreclosure sale; (2) pursuant to NRS 112.170(2), a regularly conducted, noncollusive foreclosure sale under NRS Chapter 116 is exempt under the Uniform Fraudulent Transfer Act (UFTA); and (3) inaccuracies in a foreclosure deed are not sufficient to invalidate a foreclosure sale that complied with NRS Chapter 116.


Bank Of America, N.A. V. Sfr Inv.’S Pool 1, Llc, 134 Nev. Adv. Op. 72 (Sept. 13, 2018) (En Banc), Esteban Hernandez Sep 2018

Bank Of America, N.A. V. Sfr Inv.’S Pool 1, Llc, 134 Nev. Adv. Op. 72 (Sept. 13, 2018) (En Banc), Esteban Hernandez

Nevada Supreme Court Summaries

The Court determined that becausethe holder of the first deed of trust provided valid tender of the superpriority portion of anHOA’s lien, the HOA’s foreclosure on the lien was void as to the superpriority portion. Further, anHOA has no right to convey full title to the property because the holder’s first deed of trust remains after foreclosure. Thus,when the holder unconditionally tenders the superiority amount due, the buyer at an HOA lien foreclosure sale takes the property subject to the deed of trust.


Rosenburg Living Trust V. Macdonald Highlands Realty, Llc C/W 70478, 134 Nev. Adv. Op. 69 (Sept. 13, 2018) (En Banc), Scott Cooper Sep 2018

Rosenburg Living Trust V. Macdonald Highlands Realty, Llc C/W 70478, 134 Nev. Adv. Op. 69 (Sept. 13, 2018) (En Banc), Scott Cooper

Nevada Supreme Court Summaries

The Court determined that Nevada law does not recognize implied restrictive covenants based on a common development scheme, and the Court did not adopt the doctrine under these facts. Additionally, the Court held that, unlike common law disclosure requirements, claims arising from the duties of a licensee under NRS Chapter 645 could not be waived. Finally, it held that attorney fees and costs should only be awarded where a claim is without reasonable ground, or to harass the prevailing party.


Uniform Conservation Easement Act Study Committee Background Report, Nancy Mclaughlin Sep 2018

Uniform Conservation Easement Act Study Committee Background Report, Nancy Mclaughlin

Utah Law Faculty Scholarship

This report was prepared by Nancy A. McLaughlin, Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law, in her role as Reporter for the Uniform Law Commission's Uniform Conservation Easement Act Study Committee. The report provides an overview of the Uniform Conservation Easement Act (UCEA), which was approved by the Commission in 1981, and examines the provisions in individual state conservation easement enabling statutes that differ from the provisions in the UCEA.


Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo Aug 2018

Self-Actualization And The Need To Create As A Limit On Copyright, Christopher S. Yoo

Faculty Scholarship at Penn Law

Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of ...


Sfr Invs. Pool 1, Llc V. Bank Of N.Y. Mellon, 134 Nev. Adv. Op. 58 (Aug. 2, 2018) (En Banc), Jocelyn Murphy Aug 2018

Sfr Invs. Pool 1, Llc V. Bank Of N.Y. Mellon, 134 Nev. Adv. Op. 58 (Aug. 2, 2018) (En Banc), Jocelyn Murphy

Nevada Supreme Court Summaries

The Court determined that prior to its 2015 amendment, NRS § 116.31168, through its incorporation of NRS § 107.090, previously required homeowner associations to provide notices of default and sale to all persons and entities with a subordinate interest in the property, regardless of whether they had requested notice.


Clark County V. Hq Metro, Llc, 134 Nev., Adv. Op. 56 (Aug. 2, 2018) (En Banc), Joseph K. Fabbi Aug 2018

Clark County V. Hq Metro, Llc, 134 Nev., Adv. Op. 56 (Aug. 2, 2018) (En Banc), Joseph K. Fabbi

Nevada Supreme Court Summaries

The Court held that condemnation compensation is due to the party who lost a right to property when a court orders eminent domain to a government entity.


Code Sec. 1031 After The 2017 Tax Act, Bradley T. Borden Jul 2018

Code Sec. 1031 After The 2017 Tax Act, Bradley T. Borden

Faculty Scholarship

No abstract provided.


West Sunset 2050 Trust V. Nationstar Mortgage, L.L.C., 134 Nev. Adv. Op. 47 (Jun. 28, 2018), Shaneka J. Malloyd Jun 2018

West Sunset 2050 Trust V. Nationstar Mortgage, L.L.C., 134 Nev. Adv. Op. 47 (Jun. 28, 2018), Shaneka J. Malloyd

Nevada Supreme Court Summaries

The Court found that a foreclosure sale is not invalid due to lack of notice where: (1) a homeowners association (HOA) fails to serve the Notice of Default (NOD) to the recorded beneficiary of the deed of trust and (2) that recorded beneficiary’s successor in interest is unable to demonstrate how it was prejudiced or injured by the defective notice to their predecessor in interest. Further, a HOA does not lose standing to foreclose on a property when it enters into a factoring agreement that does not change the relationship between debtor and lender.


Carrington Mortg. Holdings V. R Ventures, 134 Nev. Adv. Op. 46 (Jun. 14, 2018), Paloma Guerrero Jun 2018

Carrington Mortg. Holdings V. R Ventures, 134 Nev. Adv. Op. 46 (Jun. 14, 2018), Paloma Guerrero

Nevada Supreme Court Summaries

The Court determined that application of NRS § 116.3116(8) which states that “[a] judgment or decree in any action brought under this section must include costs and reasonable attorney’s fees for the prevailing party,” refers only to actions brought by a homeowners’ association to enforce its assessment lien and not a quiet title and declaratory judgment action by a third-party purchaser at such a sale.


Montage Marketing, Llc V. Washoe County, 134 Nev. Adv. Op. 3 (May 31, 2018), Jocelyn Murphy May 2018

Montage Marketing, Llc V. Washoe County, 134 Nev. Adv. Op. 3 (May 31, 2018), Jocelyn Murphy

Nevada Supreme Court Summaries

The Court held the district court’s order denying a petition for judicial review in a property tax matter concerning unsold condominium units was proper under NRS 361.227(2)(b) and NRS 351.227(5)(c) because neither statutory provision requires a county assessor to value unsold condominiums as a single unit or to apply the discounted cash flow method to determine full cash value.


Murr-Ky Waters: How Murr V. Wisconsin Creates Uncertainty In Attempting To Answer The “Denominator Question”, Charles M. Kassir May 2018

Murr-Ky Waters: How Murr V. Wisconsin Creates Uncertainty In Attempting To Answer The “Denominator Question”, Charles M. Kassir

Maryland Law Review Online

No abstract provided.


Saticoy Bay V. Fed. Nat’L Mortg. Ass’N, 134 Nev. Adv. Op. 36 (May. 17, 2018) (En Banc), Shady Sirsy May 2018

Saticoy Bay V. Fed. Nat’L Mortg. Ass’N, 134 Nev. Adv. Op. 36 (May. 17, 2018) (En Banc), Shady Sirsy

Nevada Supreme Court Summaries

The Court held that when the Federal Housing Finance Agency (FHFA) is acting as a conservator, absent their affirmative relinquishment, the Federal Foreclosure Bar cloaks property with Congressional protection.


Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps May 2018

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Journal Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an ...


An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall Apr 2018

An Error Of Law And The Credibility Of The Civil Resolution Tribunal, Douglas C. Harris, Sophie Marshall

Faculty Publications

No abstract provided.


The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades Apr 2018

The Natural Property Rights Straitjacket: The Takings Clause, Taxation, And Excessive Rigidity, Eric Kades

Faculty Publications

Natural property rights theories have become the primary lens through which conservative jurists and scholars view the Constitution’s main property rights provision, the Takings Clause. One of their most striking arguments is that progressive income taxation — applying higher tax rates to higher incomes — is an unconstitutional taking of wealthy taxpayers’ property. This has become part and parcel of well-established battle lines between conservative property rights advocates and their liberal counterparts. What has gone unnoticed is that the very same argument deployed against progressive taxation also deems regressive taxation — applying lower tax rates to higher incomes — an unconstitutional taking of ...


A Review Of The California Unlawful Detainer Pilot Program: 2018 Update, California Research Bureau Mar 2018

A Review Of The California Unlawful Detainer Pilot Program: 2018 Update, California Research Bureau

California Agencies

This is the eighth legislative report on the merits of the pilot program, as required by state statutes. There is insufficient data for a proper evaluation of the program with regards to crime reduction and nuisance abatement, but the accelerated unlawful detainer procedure is cost-effective when compared to lawsuits and is successful at evicting individual nuisance tenants.


Pawlik V. Deng, 134 Nev. Adv. Op. 11 (Mar. 1, 2018) (En Banc), Will T. Carter Mar 2018

Pawlik V. Deng, 134 Nev. Adv. Op. 11 (Mar. 1, 2018) (En Banc), Will T. Carter

Nevada Supreme Court Summaries

The Court held NRS 271.595 creates two redemption periods; one of two years and one of 60-days. The 60-day notice and redemption period must follow the two-year period and cannot run concurrently.