Law Commons^™

Rerum Novarum: New Things And Recent Paradigms Of Property Law, M C. Mirow

Faculty Publications

The two most recent paradigmatic moments in the development of property law were the construction of "social property" about a hundred years ago and of "international property" quite recently. This study analyses two important texts as illustrations of these changes: Leo XIII's encyclical Rerum Novarum (1891) and John Sprankling's book The International Law of Property (2014). Each text signals a paradigm shift in our understanding of property.

“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod

Faculty Publications

Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent.

This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. This Article analyzes and identifies the deficiencies …

“But My Lease Isn’T Up Yet!”: Finding Fault With “No-Fault” Evictions, Eloisa Rodriguez-Dod

Faculty Publications

Historically, tenants could be evicted when their actions put them “at-fault.” Grounds for “at-fault” eviction (i.e., evictions for cause) include a tenant’s failure to pay rent, a tenant’s holding over after termination of the lease, a tenant’s material noncompliance with the lease agreement, and a tenant’s failure to maintain the premises materially affecting health and safety. Recently, some landlords have been evicting tenants for no fault of their own.

This article focuses on three reasons for attempted “no-fault” evictions: foreclosure of the premises, proposed sale of the premises, or intended re-occupancy by the landlord. Part II of this article provides …

Origins Of The Social Function Of Property In Chile, M C. Mirow

Faculty Publications

In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the …

The Social-Obligation Norm Of Property: Duguit, Hayem, And Others, M C. Mirow

Faculty Publications

This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit's ideas. Hayem should be restored as a central influence on Duguit's thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit's thought on property and its …

Stop Shutting The Door On Renters: Protecting Tenants From Foreclosure Evictions, Eloisa Rodriguez-Dod

Faculty Publications

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted Federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from …

Seizures Without Searches: Defining Property Seizures And Developing A Property Seizure Model, Eric R. Carpenter

Faculty Publications

No abstract provided.

Evaluating Katrina: A Snapshot Of Renters’ Rights Following Disasters, Eloisa Rodriguez-Dod, Olympia Duhart

Faculty Publications

Hurricane Katrina destroyed the homes of many people living in parts of the Gulf Region. The storm displaced as many as 800,000 victims and it is still difficult for them to return home. Consequently, many homeowners have turned to renting because of the slow recovery process. Renters face added difficulties; they are often the last in line for government benefits and other assistance. There is much hostility towards the rights of renters, creating even more difficulties for them.

This article focuses on the difficulties evacuee renters faced in New Orleans following the disaster. This article discusses legislation and attempted legislation …

Estates & Trusts: 2001 Survey Of Florida Law, Eloisa Rodriguez-Dod

Faculty Publications

This article discusses relevant changes in Florida probate and trust statutes and regulations through mid-2001, updating a prior survey published in 1998. The article highlights and summarizes, some aspects of the elective share provisions and other legislative changes to the Florida Probate Code and Trust Administration Statutes. Amendments to the Florida Probate Rules are also highlighted. Lastly, the article highlights some significant cases decided during mid-2001 that affected this area of the law.

Respa - Questioning Its Effectiveness, Eloisa Rodriguez-Dod

Faculty Publications

Purchasing real estate is a complicated process, especially for the average consumer. The closing procedure alone involves fees and documents that can be confusing to a borrower. The Real Estate Settlement Procedures Act (RESPA) was enacted in 1974 in order to ease some of this confusion.

This article discusses the enactment of RESPA and its purpose, which is mainly to "insure that consumers... are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices." The article also discusses disclosure requirements that …