Property Law and Real Estate Commons^™

Property Law—Upending The Familiar Tools Of Estate Planning: Equity Renders Revocable Trusts Subject To The Arkansas Spousal Election. In Re Estate Of Thompson, 2014 Ark. 237, 434 S.W.3d 877., Lucy L. Holifield

University of Arkansas at Little Rock Law Review

No abstract provided.

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

Transferring Nonnegotiable Mortgage Notes, Dale A. Whitman

Faculty Publications

This article reviews what we know about transferring ownership and the right of enforcement of nonnegotiable notes. The focus will be on notes secured by mortgages, since this is likely the context in which most modern nonnegotiable notes are created. There has been a vast amount of litigation about the transfer of negotiable mortgage notes in the past half decade, greatly expanding our understanding, but there has been little development involving nonnegotiable notes. Hence, it is helpful to compare negotiable and nonnegotiable notes, with particular emphasis on how each is transferred. Perhaps ironically, this means that the bulk of this …

Second Liens And The Leverage Option, Adam J. Levitin, Susan M. Wachter

Vanderbilt Law Review

This Article demonstrates that the housing bubble was driven by second mortgages to a much greater extent than previously appreciated. A unique feature of American law allows homeowners to take out second mortgages, without the consent or even knowledge of the first mortgage lender. The result is an underpricing and overextension of credit as first mortgage lenders cannot control or properly price for the risks created by second mortgages. Homeowners' unilateral right to encumber their properties with additional mortgage loans creates what we term the "leverage option" that is embedded in American mortgages. The leverage option is an unintended consequence …

Introduction To Property, History & Climate Change In The Former Colonies Symposium Special Issue, Jill M. Fraley

Jill M. Fraley

None available.

Mardian V. Greenberg Family Trust, 131 Nev. Adv. Op. 72 (Sep. 24, 2015), Colton Loretz

Nevada Supreme Court Summaries

The Court concluded that the promissory note, which had security interest by both a deed of trust of Arizona real property and personal guaranties, was governed by Nevada limitations period because of the Nevada choice-of-law provision within the contract. Consequently, the Court held that the party seeking deficiency judgment was time-barred pursuant to NRS 40.455(1) because the judgment was not sought within six months of the foreclosure sale of the collateral property.

In Re: Manhattan West Mechanic’S Lien Litigation, 131 Nev. Adv. Op. 70 (Sept. 24, 2015), Kristian Kaskla

Nevada Supreme Court Summaries

The Court determined that (1) a general subordination agreement effects a partial subordination; and (2) NRS 108.225 does not preclude parties from contracting for a partial subordination.

Local Government Finance As Integrated System: The Uneasy Case For Using Special Districts In Real Estate Finance (A Response To Odinet’S Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance), Darien Shanske

Washington and Lee Law Review Online

Local governments have long used special financing districts to build infrastructure. If a local project, say building a pocket park, is likely to increase the values of properties very close to the park, then why should those properties not pay for the park in the first place? Though efficient and fair in many cases, the use of these districts can also be problematic. For instance, it seems likely that wealthier residents, with higher property values to leverage, are especially likely to use these districts effectively. It has also been the case that developers have used these districts speculatively, which had …

Response To Christopher Odinet, Super- Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Peter W. Salsich Jr.

Washington and Lee Law Review Online

No abstract provided.

Land Baron Invs. V. Bonnie Springs Family Lp, 131 Nev. Adv. Op. 69 (Sept. 17, 2015), Rob Schmidt

Nevada Supreme Court Summaries

This case is an appeal arising from a failed land sale contract. The Court considered three issues of first impression, holding that (1) when a party bears the risk, mutual mistake is not a basis for rescission; (2) an abuse of process claim may not be supported by a complaint to an administrative agency; (3) a nuisance claim seeking only emotional distress damages must be supported by proof of physical harm. Ultimately, The Court affirmed in part and reversed in part.

Drafting And Securitizing Participation Mortgages: A Re-Introduction, Spencer J. Coopchik, Yildiray Yildirim

The Journal of Business, Entrepreneurship & the Law

This Paper will reintroduce, explore, and expand on the financing arrangement known as a Participation Mortgage. First, this Paper will cover the features, history, and policy purposes behind the mortgage. Second, the Paper will focus on legal mechanics and drafting considerations of Participation Mortgages, so they may later be securitized. Finally, the Paper will explore the possibility and legality of creating Participation Mortgaged Backed Securities to be sold in the secondary market.

Do You Know The Fair Market Value Of Your Property?: A Call To The Legislature To Revise Section 775.089, Florida Statutes, Governing Restitution, Adam M. Hapner

Barry Law Review

No abstract provided.

Rethinking Rescission, Roger Bernhardt

Publications

The basic facts are that the purchasers of a hillside residence in San Carlos rescinded their completed contract because of misstatements made by the sellers to the effect that the property was served by a public sewer, when in fact the system was privately owned by the 13 residents of the area, who all had to share its maintenance costs. The trial court found that the sellers’ statements were negligent misrepresentations, but it declined to order rescission because of the complications involved in unwinding the deal. Instead, it ordered the sellers to indemnify the purchasers for their sewer maintenance costs …

Valbuena V Ocwen Loan Servicing, Llc, Roger Bernhardt

Publications

No abstract provided.

The Divergent Evolution Of English Property Law, Jerry L. Anderson

Jerry L. Anderson

Despite the common origins of American and English property law, there are now some significant, and interesting, differences. This article examines five divergent aspects in the areas of title registration, limitations on ownership, condominiums, adverse possession, and foreclosure. In each case, the differences should cause us to think about whether our system represents the best approach, in terms of efficiency and fairness.

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

Dividing The Single Indivisible Transaction: Balancing The Interests Of Mortgagees And Innocent Occupants, Vincent Ooi

Research Collection Yong Pung How School Of Law

When a mortgagee provides the funds necessary to purchase a property, the law protects the priority of the mortgagee’s security interest from any other interests in the property created after that property was purchased (unless consented to by the mortgagee). The House of Lords affirmed this principle in Abbey National Building Society v Cann (‘Cann’), and rejected the technical argument based on a scintilla temporis in favour of the policy argument concerning the need to ensure that housing loans are available and affordable. The effect of this principle is to allow the mortgagee to enforce the security interest in the …

Taking Back Takings Claims: Why Congress Giving Just Compensation Jurisdiction To The Court Of Federal Claims Is Unconstitutional, Michael P. Goodman Ph.D.

Villanova Law Review

No abstract provided.

Statutory Pooling And Unitization In West Virginia: The Case For Protecting Private Landowners, James E. Mcdaniel

West Virginia Law Review

No abstract provided.

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …