Law Commons^™

Is “Touch And Concern” Dead In Arkansas?: A Recent Case And Its Implications For Real Covenants, Bennett J. Waddell

Arkansas Law Review

Real covenants occupy a doctrinal abyss within property law. The subject perpetually frustrates first-year law students and legal scholars alike, as they confront concepts that appear esoteric and even anachronistic. Naturally, the criticism has been sharp, with commentators quipping that the field “is an unspeakable quagmire,” a “formidable wilderness,” and plainly “ridiculous.”

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg

Ronald H. Rosenberg

No abstract provided.

The Real Doctrine & Covenants, Chad J. Pomeroy

Faculty Articles

Developers have recently begun creating, and attaching to the property they sell to consumers, what is known as a "recovery fee." These recovery fees are "new" in that most lawyers are not familiar with them and in that they seem to operate in a novel manner and are bottomed on novel claims. In essence, they create and levy a fee on subsequent owners each time the property is transferred, which fee purports to reimburse developers for infrastructure and other development costs. Because they seem new, and because they involve transfers from relatively small and unsophisticated parties to relatively large and …

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

The Phenomenon Of Substitution And The Statute Quia Emptores, Ronald B. Brown

Ronald Brown

Law students generally think that American property law is a confusing mix of unconnected, inconsistent and nearly incomprehensible rules. In fact, an overview of property law reveals a recurring pattern. In numerous situations, a successor in title takes the place of his or her predecessor regarding rights and responsibilities that are related to ownership of that land. That process is called substitution because the successor is substituted for the predecessor regarding those rights and responsibilities. But sometimes substitution happens automatically and other times it happens only if that is the parties' intent. Automatic substitution seems to follow the pattern established …

Conservation Easements And The "Term Creep" Problem, Michael Allan Wolf

Michael A Wolf

This Essay first discusses the “term creep” problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts. The confusion between easements of the “traditional” and “conservation” varieties is just one in a long line of situations in which the decision to allow often significantly dissimilar concepts to share the same name has led to unfortunate consequences. The second part of the Essay explains the substantive nature of the hybrids …

American Dream In Flux: The Endangered Right To Lease A Home, Andrea Boyack

Faculty Publications

Homeownership in the US is on the decline and the percentage of the population that rents their residence is growing. Renters present a distinct demographic compared to owners, and most of the more vulnerable segments of society rent their homes. But the law prohibits renting a home in some neighborhoods. Occasionally, zoning provisions hamper the ability of would-be tenants and would-be landlords to rent. More typically, however, community restrictive covenants are what block rentals. Zoning prohibitions on rentals have been attacked as violations of property rights. But in condominiums and other privately governed neighborhoods, segregation of renters from owner occupants …

Homes Affordable For Good: Covenants And Ground Leases As Long-Term Resale-Restriction Devices, James J. Kelly

James J. Kelly Jr.

Covenants and ground leases have been, and continue to be, used to create shared spaces that are fundamentally, and often invidiously, exclusive. Famously made a dead letter in the case of Shelley v. Kraemer, covenants banning resale to nonwhite households put the force of law behind the segregated birth of America’s suburbs. Today, gated residential communities and shopping malls assure a degree of class exclusivity through covenants and commercial ground leases, respectively. These same legal mechanisms, however, are now deployed to assure long-term inclusion as well. Developers of affordable housing are creating homes that are not only beneficial to the …

Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett

Nicole Stelle Garnett

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient …

A Review Of The Implied Covenant Of Development In The Shale Gas Era, George A. Bibkos

West Virginia Law Review

No abstract provided.

Conservation Easements And The "Term Creep" Problem, Michael Allan Wolf

UF Law Faculty Publications

This Essay first discusses the “term creep” problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts. The confusion between easements of the “traditional” and “conservation” varieties is just one in a long line of situations in which the decision to allow often significantly dissimilar concepts to share the same name has led to unfortunate consequences. The second part of the Essay explains the substantive nature of the hybrids …

Condos, Cats, And Cc&Rs: Invasion Of The Castle Common, Armand Arabian

Pepperdine Law Review

No abstract provided.

Solar Rights For Texas Property Owners, Sara C. Bronin

Sara C. Bronin

In response to Jamie France's note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids. Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. …

Solar Rights For Texas Property Owners, Sara C. Bronin

Cornell Law Faculty Publications

In response to Jamie France's note, A Proposed Solar Access Law for the State of Texas, Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids. Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. …

Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett

Journal Articles

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient …

Solar Rights, Sara C. Bronin

Cornell Law Faculty Publications

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the …

Solar Rights, Sara C. Bronin

Sara C. Bronin

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the …

Racially Restrictive Covenants In The State Of Washington: A Primer For Practitioners, Rajeev Majumdar

Seattle University Law Review

Part II of this Comment will begin by examining the history of racially restrictive covenants, specifically the nature of covenants and the role of the federal government in both spreading and hindering the usage of such covenants. Part III will discuss the legal underpinnings of what makes such covenants unenforceable in Washington, and the best processes an attorney can use to remove them. Part IV will discuss a recent case that has significantly altered the collateral consequences of attempting to destroy racially restrictive covenants upon other associated covenants. As a result, those seeking to retain the benefits of other covenants …

Solving The Contentious Issues Of Private Conservation Easements: Promoting Flexibility For The Future And Engaging The Public Land Use Process, Gerald Korngold

Articles & Chapters

Over the past thirty years, statutes have reversed the common law and authorized private conservation organizations to hold conservation easements "in gross." These interests allow nonprofits to control the use and development of the burdened property by preventing alterations of the natural and ecological features. Conservation easements can be held by organizations geographically distant from the restricted land.

Conservation easements bring great benefits as they support conservation, represent private initiative, yield efficiency benefits, and exemplify freedom of choice of property owners. There are costs, however: significant federal and state tax subsidies, the lack of coordinated planning and public process, class …

Real Estate Law, Paul H. Davenport, Lindsey H. Dobbs

University of Richmond Law Review

This article surveys significant cases concerning real property law decided by the Supreme Court of Virginia between the spring of 2004 and the spring of 2006. This article also details significant legislative changes flowing from the 2005 and 2006 Virginia General Assembly sessions.

Making A Statement Without Saying A Word: What Implied Covenants Say When The Lease Is Silent On Post-Production Costs, R. Cordell Pierce

West Virginia Law Review

No abstract provided.

Private Lands Conservation In The British Virgin Islands, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center

Books, Reports, and Studies

46 p. ; 28 cm

Private Lands Conservation In Belize, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center

Books, Reports, and Studies

49 p. : map ; 28 cm

The Phenomenon Of Substitution And The Statute Quia Emptores, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Covenants Don’T Run Like They Used To, Roger Bernhardt

Publications

This article discusses a California Supreme Court decision that CC&Rs recorded before the subdivider conveyed any lots in the subdivision were nevertheless binding on subsequent owners even when their deeds made no reference to those restrictions.

The Third Circuit And The Landlord's Noncompetition Promise: The Use And Misuse Of Intent Theory, Edward Chase

Villanova Law Review

No abstract provided.

Dependent Covenants In Commercial Leases: Hindquarter Corp. V. Property Development Corp., Tracy R. Antley Faust

Seattle University Law Review

This Note demonstrates that the Washington Supreme Court correctly applied contract principles to the Hindquarter lease dispute. The Note first reviews the historical development of dependent covenants in both residential and commercial contexts. After setting out this important background information, the Note examines Hindquarter and the three factors that influenced the Washington Supreme Court in following the dependent covenants trend: (1) material inducements to execute the lease; (2) the intent of the parties; and (3) equity and policy considerations. The Note concludes that, even though the landlord prevailed in Hindquarter, commercial tenants stand to gain most from the supreme …

The Common-Law Conception Of Leasing: Mitigation, Habitability, And Dependence Of Covenants, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Property law may be the most eternal of secular law. Its basic precepts and conceptions are largely stable and long settled. An aspect of property law undergoing notable change, however, is the law of landlord and tenant. The most important recent change in landlord-tenant law involves the reversal of responsibility for the quality of leased premises. In place of the tenant's traditional burden of caveat emptor and duty of repair, many courts now recognize an implied warranty of habitability, at least for residential tenancies. These same courts typically reject the traditional doctrine that mutual obligations in leases are "independent," that …

Solar Rights And Restrictive Covenants: A Microeconomic Analysis , Arto Becker

Fordham Urban Law Journal

This comment addresses the enforceability of restrictive covenants in relation to solar energy rights. Articulating the framework for development of solar energy, this comment works through an economic model formulated by Professors Ellickson, Coase, Calabresi, and Malemed. Looking for an efficient allocation of resources, this comment proposes a modernization of common law property principles to ensure the proper growth of solar energy.

Running Covenants And Public Policy, Olin L. Browder

Michigan Law Review

When first encountering covenants running with the land, one may react against the very idea. Why should any person be able to enforce a promise not made to him or be bound by a promise he did not make? Modern contract law, particularly the rules about the assignment of contract rights and the rights of third-party beneficiaries, may answer the first question, but does not explain how anyone can be bound by a promise neither expressly nor impliedly made or consented to by him.

On the other hand, persons_ familiar with easements, liens, or mortgages understand that land ownership can …