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Property Law and Real Estate

Property rights

Selected Works

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Full-Text Articles in Law

The Sharing Stick In The Property Rights Bundle: The Case Of Short Term Rentals & Hoas, Donald J. Kochan Dec 2017

The Sharing Stick In The Property Rights Bundle: The Case Of Short Term Rentals & Hoas, Donald J. Kochan

Donald J. Kochan

Property owners are now more than ever exercising the “sharing stick” in their metaphorical bundle of property rights. This article examines the right to share one’s property with others as a branch, stemming from the inclusion stick, that itself grows out of the exclusion right held by property owners, along with the legal consequences of that characterization. 

The right to share, like other rights, can be given up when an owner joins a common interest community (CIC). However, when owners enter CICs and agree to HOA governance, they retain whatever residual parts of their ownership bundle they do not give …

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Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan Dec 2017

Playing With Real Property Inside Augmented Reality: Pokemon Go, Trespass, And Law's Limitations, Donald J. Kochan

Donald J. Kochan

This symposium essay uses the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass issues (and enforcement difficulties) associated with game players who sometimes break physical property boundaries.

The essay then undertakes a thought experiment regarding possible recognition of a new, different type of trespass—one to augmented space. Pollock and Maitland called trespass the “fertile mother of all actions,” often …

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Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield Apr 2017

Appetite For Destruction: Symbolic And Structural Facets Of The Right To Destroy Digital Property, Joshua A.T. Fairfield

Joshua A.T. Fairfield

No abstract provided.

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Gay Marriage And The Problem Of Property, Andrea B. Carroll Dec 2015

Gay Marriage And The Problem Of Property, Andrea B. Carroll

Andrea Beauchamp Carroll

The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Commentary, we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court’s decision may …

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Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan Dec 2015

Deeds And The Determinacy Norm: Insights From Brandt And Other Cases On An Undesignated, Yet Ever-Present, Interpretive Method, Donald J. Kochan

Donald J. Kochan

The land one holds is generally only as good as the property rights contained in the deed.
The rights contained in the deed are only as good as the ability to get those rights enforced.
And, the enforcement is only valuable if it recognizes a determinate meaning in the deeds from
the point of conveyance. This Article pens the term “determinacy norm” to explain a collection
of rules for the interpretation of deed terms that aim to make the meaning of deed terms determinate.
I contend that, in order to satisfy the determinacy norm for deed interpretation,
courts must (and …

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When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler Feb 2015

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.

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Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan Dec 2014

Economics-Based Environmentalism In The Fourth Generation Of Environmental Law, Donald J. Kochan

Donald J. Kochan

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism." Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, …

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Keepings, Donald J. Kochan Dec 2014

Keepings, Donald J. Kochan

Donald J. Kochan

Individuals usually prefer to keep what they own; property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. Just as we hold affection and attachment for our memories, captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.

We often focus on the means of acquisition or transfer in property law. We look less often at the legal rules that support one’s ability to keep what one owns. Yet, it is precisely …

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Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright Nov 2014

Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright

Danaya C. Wright

This panel, sponsored by the Minority group and Property Sections of the AALS for the January, 2000 annual meeting, was composed of an exciting group of scholars critically analyzing traditional theories of property and current distribution of resources. The panel, entitled "Reviewing the Legacy of Liberalism: Life, Liberty, and the Pursuit of Happiness -- Linking Property to Rights," challenged traditional notions of property rights, from a discussion of the gender implications of African property law, to a critique of traditional analyses of Johnson v. M'Intosh, to property as heteronormative. Because the articles provide so much rich and thought-provoking material, …

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¿Es Posible La Renuncia Al Derecho De Propiedad?, Henrry Paredes Sanchez Aug 2014

¿Es Posible La Renuncia Al Derecho De Propiedad?, Henrry Paredes Sanchez

Henrry Paredes Sánchez

El derecho de renuncia de propiedad es un acto de disposición extintiva de la propiedad, que no está prohibido por nuestro ordenamiento jurídico, sin embargo, su ejercicio importa respetar los límites que impone la ley. La renuncia sobre bienes inmuebles debe ser regulada expresamente, pues su libre ejercicio puede conllevar a escenarios gravosos, tanto para el titular del derecho renunciado como para terceros.

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Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm Jul 2013

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

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Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin May 2013

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

Patricia E. Salkin

No abstract provided.

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The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan Dec 2012

The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan

Donald J. Kochan

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …

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"A Poor Relation?" Reflections On A Panel Discussion Comparing Property Rights To Other Rights Enumerated In The Bill Of Rights, Rashmi Dyal-Chand Aug 2012

"A Poor Relation?" Reflections On A Panel Discussion Comparing Property Rights To Other Rights Enumerated In The Bill Of Rights, Rashmi Dyal-Chand

Rashmi Dyal-Chand

The purpose of this Essay is to summarize and reflect upon the second panel discussion at the Third Annual Brigham-Kanner Property Rights Conference at William & Mary School of Law, October 6-7, 2006. The panel was entitled "Comparing the Treatment of Property Rights to the Protections Given to Other Rights Under the Bill of Rights." As described by Professor Eric Kades, the organizer of the conference, the panel's topic was inspired by a statement by Justice Rehnquist in the case of Dolan v. City of Tigard: "We see no reason why the Takings Clause of the Fifth Amendment, as much …

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Property Rights, The "Gang Of Four" & The Fifth Vote: Stop The Beach From Renourishment, Inc. V. Florida Department Of Environmental Protection (U.S. Supreme Court 2010), Garrett Power Jul 2012

Property Rights, The "Gang Of Four" & The Fifth Vote: Stop The Beach From Renourishment, Inc. V. Florida Department Of Environmental Protection (U.S. Supreme Court 2010), Garrett Power

Garrett Power

In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had …

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The World Of Deadwood: Property Rights And The Search For Human Identity, Michael B. Kent Jr., Lance Mcmillian Dec 2010

The World Of Deadwood: Property Rights And The Search For Human Identity, Michael B. Kent Jr., Lance Mcmillian

Michael B. Kent Jr.

The year is 1876. Gold has been discovered in the fledgling camp of Deadwood, bringing hordes of new arrivals each day seeking to strike it rich. The allure of wealth is coupled with the allure of complete autonomy. There is no law. Although part of the United States, Deadwood is unaffiliated with any existing territorial government. It is free. Or is it? From this backdrop, HBO’s highly-acclaimed drama Deadwood springs forth. Series creator David Milch is frank about his mission behind the story: to explore how order arises from chaos. The assignment and protection of property rights play central roles …

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Laying To Rest An Ancien Regime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet Dec 2009

Laying To Rest An Ancien Regime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet

Christopher K. Odinet

Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern-day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society alter, the law should be modified to …

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Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power Oct 2009

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Garrett Power

No abstract provided.

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Pavesich, Property And Privacy: The Common Origins Of Property Rights And Privacy Rights, Michael B. Kent Jr. Dec 2008

Pavesich, Property And Privacy: The Common Origins Of Property Rights And Privacy Rights, Michael B. Kent Jr.

Michael B. Kent Jr.

No abstract provided.

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Does Sustainability Require A New Theory Of Property Rights?, Carl J. Circo Dec 2008

Does Sustainability Require A New Theory Of Property Rights?, Carl J. Circo

Carl J. Circo

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may …

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Providing Meaningful Judicial Review Of Municipal Redevelopment Designations: Redevelopment In New Jersey Before And After Gallenthin Realty Development, Inc. V. Borough Of Paulsboro, Jonathan Marshfield Dec 2008

Providing Meaningful Judicial Review Of Municipal Redevelopment Designations: Redevelopment In New Jersey Before And After Gallenthin Realty Development, Inc. V. Borough Of Paulsboro, Jonathan Marshfield

Jonathan Marshfield

This Article examines the significance of the New Jersey Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Paulsboro for redevelopment and property rights in New Jersey. It suggests that Gallenthin has resulted in the revival of meaningful judicial review of municipal redevelopment designations. Specifically, the Authors contend that Gallenthin confronted two pervasive problems concerning judicial review of redevelopment designations. First, since 1947, when New Jersey adopted a constitutional provision that specifically authorized the legislature to pass laws permitting the taking of property for redevelopment of “blighted areas,” courts have unduly acquiesced to legislative and municipal interpretations of “blight.” Gallenthin …

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Applying Communal Theories To Urban Property: An Anthropological Look At Using The Elaboration Of Common Property Regimes To Reduce Social Exclusion From Housing Markets, Dylan O. Malagrino Dec 2008

Applying Communal Theories To Urban Property: An Anthropological Look At Using The Elaboration Of Common Property Regimes To Reduce Social Exclusion From Housing Markets, Dylan O. Malagrino

Dylan Malagrinò

The advantages of privatized property regimes and common property regimes have been debated in legal and economic discourse for ages. Although private property is prevalent in the developed world, a reading of the available anthropological literature shows that common property regimes still thrive in many parts of the developing world to maintain natural resources and to spread the risk of property ownership.
Considering the recent U.S. housing crisis and its global effect on world markets, perhaps the developed world should incorporate more communal theories to—what has now become the developed world‘s scarce resource—urban land. In fact, after a close look …

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In The Heat Of The Law, It's Not Just Steam: Geothermal Resources And The Impact On Thermophile Biodiversity, Donald J. Kochan, Tiffany Grant Dec 2006

In The Heat Of The Law, It's Not Just Steam: Geothermal Resources And The Impact On Thermophile Biodiversity, Donald J. Kochan, Tiffany Grant

Donald J. Kochan

Significant research has been conducted into the utilization of geothermal resources as a ‘green’ energy source. However, minimal research has been conducted into geothermal resource utilization and depletion impacts on thermophile biodiversity. Thermophiles are organisms which have adapted over millions of year to extreme temperature and chemical compositions and exist in hot springs and other geothermal resources. Their ability to withstand high temperatures makes them invaluable to scientific and medical research. Current federal and California case law classify geothermal resources as a mineral, not a water resource. Acquisition of rights to develop a geothermal resource owned or reserved by the …

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Shareholders, Unicorns And Stilts: An Analysis Of Shareholder Property Rights, Benedict Sheehy Dec 2005

Shareholders, Unicorns And Stilts: An Analysis Of Shareholder Property Rights, Benedict Sheehy

Benedict Sheehy

Abstract: Shareholders rights advocates argue that shareholders have the right to control the corporation. This article examines the basis for the claims. It begins with an analysis of rights, then moves to an analysis of legal rights, which is followed by an analysis of property rights as a species of legal rights. The article then examines the historical context, rationale and development of shareholder rights which leads to the analysis of current shareholders’ rights. The article concludes with some comments and suggestions concerning future development of corporate governance thinking.

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