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Alternative Mortgage Instruments In California, Edward S. Washburn

Akron Law Review

Much interest has been generated recently in California and elsewhere in what have been termed alternative mortgage instruments (AMIs). Two separate sets of pressures have been responsible for this. One has been the tremendous increase in the cost of lendable funds requiring constantly higher yield on each lender's overall mortgage portfolio. This has been induced by the inexorable increase in interest rates required to be paid by mortgage lenders in order to obtain lendable funds for home ownership loans, along with unremitting escalation of operating costs. The second pressure has been the persistent escalation of the cost of the conventional …

Apartments And Houses: The Warranty Of Habitability, Walter H.E. Jaeger

Akron Law Review

“The trend towards greater consumer protection so evident in the products liability field is clearly discernible in the sale of new homes by the builder-vendor, and in the leasing of apartments by landlords. Some of the fundamental concepts of real property law, especially those which make no sense in modern society, have been, or are being, overruled and superseded by more enlightened and public policy-minded decisions of both the federal and state courts. It seems safe to predict that the warranty of habitability which governs the sale of new homes by the builder-vendor, adopted by a substantial majority of jurisdictions, …

An Examination Of The Current Ohio Condominium Law, Patricia Mcquillen Billow

Akron Law Review

Ohio sanctioned condominiums in 1963 by enacting the Condominium Property Act. The act addresses five issues: (1) the creation of the condominium form of ownership; (2) the respective interests each unit owner possesses in the common area; (3) the administration of the condominium; (4) the rights of the lienors; and, (5) the removal of the property from the Act's provisions. The Act was amended in 1978 to facilitate consumer protection. This comment will examine the 1978 amendment and evaluate its effectiveness. It will then examine the tax considerations involved in the purchase of a condominium unit.

The Case Against Strict Liability Protection For New Home Buyers In Ohio, Karen Doty

Akron Law Review

In Ohio, home buyers have several means available to protect their investment and assure themselves of getting their money's worth. First, and foremost, the Ohio courts, while not mandating either implied warranties of habitability or strict liability, have offered some protection to the consumer in holding builders to a standard of workmanship commensurate with that prevailing in the trade locally. Ohio courts also recognize collateral covenants with regard to construction that do not merge with the deed when title is transferred.

The Protection Of Property Rights In Computer Software, Edward W. Rilee

Akron Law Review

During the last decade a number of attempts have been made by the courts in the realm of patent and copyright law to settle the issue of the protection of property rights in computer software. These traditional methods of protection, however, have not been able to assimilate this relatively new technological invention. Likewise, at the start of a new decade, little or no progress towards a comprehensive form of software protection can be detected. This paper will examine the problems associated with using federal patent or copyright law to provide computer software protection and discuss why state trade secret protection …

Double Diamond V. Second Jud. Dist. Ct., 131 Nev. Adv. Op. 57 (July 30, 2015), Janine Lee

Nevada Supreme Court Summaries

NRS 116.3105(2) permits homeowners associations to terminate contracts at any time if the declarant did not enter into the contract in good faith or if the contract was unconscionable to the units’ owners at the time of contract formation.[1] The statute requires that an association provide at least 90 days notice of termination under this provision. The 90-day notice period in NRS 116.3105(2) does not operate as a statute of limitations nor does it shift the burden to a notice recipient to file an action. Instead, NRS 11.190 is applicable, resulting in either a four-year or six-year statute of …

Forfeiture Of Residential Land Contracts In Ohio: The Need For Further Reform Of A Reform Statute, James Geoffrey Durham

Akron Law Review

The purpose of this article is to examine the problems created by Chapter 5313, Installment Land Contracts (the "Act"). In order to do that, the article begins with a background section which more fully describes the type of contractual arrangement under discussion, why people use land contracts, and the economic factors in the current Ohio real estate market which have caused an increase in the use of land contracts and may cause mounting problems with Ohio's land contract statute. The second section describes the common law treatment of land contract defaults and the positions taken by states other than Ohio. …

The Landlord's Liability To His Tenants For Injuries Criminally Inflicted By Third Persons, Marvin M. Moore

Akron Law Review

Until approximately fifteen years ago a landlord was never held civilly liable to his tenants for injuries inflicted by the criminal acts of third persons, regardless of the deficiency of the security measures provided by the landlord.' The landlord was protected from tenant lawsuits by three factors: The historical concept of a lease, certain tort theories of a legalistic nature, and some policy concerns having significant influence upon the courts. In recent years the courts have begun holding landlords liable in some circumstances for criminally-induced injuries sustained by their tenants. The following discussion will examine the reasons for the landlord's …

The Legal Form Of Liberalism: A Study Of Riparian And Nuisance Law In Nineteenth Century Ohio, E. P. Krauss

Akron Law Review

This essay tests the foregoing interpretation by examining the nineteenth century Ohio decisions in the fields of riparian and nuisance law. This data, as shall be shown, tends to confirm the conclusions of earlier scholarship. In the third and fourth parts of this essay two decisions, one from the very beginning of the period under study," and one from near the end, will be considered. These two decisions help identify the developmental context within which judicial law-making passed from a creative to an elaborative phase by illustrating judicial attitudes toward protecting the public interest in 1831 and again in 1892.

Section 280a: Vacation Home And Rental Property, Craig Teller

Akron Law Review

In addition to the personal and business use of a unit, the rules under Internal Revenue Code Section 280A ("280A") also cover situations such as time-sharing arrangements, rental pools, shared equity financing deals and office-at-home deductions. Though 280A applies to individuals, partnerships, trusts, estates, and S Corporations, this comment assumes the "taxpayer" to be an individual taxpayer. This author will first analyze 280A to provide general guidance in the rental of a unit. After the overall analysis, the author will focus on the following rental situations:

1. Analysis of Personal Use.
2. Analysis of Rental Use.
3. Further Analysis of Allocating Rental & …

Aesthetics In Ohio Land Use Law: Preserving Beauty In The Parlor And Keeping Pigs In The Barnyard, Edward H. Ziegler Jr.

Akron Law Review

Traditional zoning restrictions on residential use, lots, and yards invariably involved what Ohio lawyer Alfred Bettman, an early supporter of urban planning, once described as an official regard for "the look of things." These traditional zoning controls though were constitutionally sanctioned on the nuisance analogy basis that such restrictions promoted the orderly development of healthy, safe and quiet residential neighborhoods. Aesthetic values generally were held to be beyond the scope of police power regulation.' In 1930, Judge Cardozo could state: "One of the unsettled questions of the law is the extent to which the concept of nuisance may be enlarged …

A Professional Degree Is Not Marital Property Upon Divorce: Stevens V. Stevens, Katherine Scheid

Akron Law Review

This Note first analyzes the Stevens court's opinion and concludes that it fails to give sufficient direction on how to determine the amount of the alimony award in order to sufficiently compensate the supporting spouse. Second, this Note explores the ways in which courts in other jurisdictions have attempted to compensate the supporting spouse. Finally, this Note proposes two alternative methods of valuing the supporting spouse's contribution. One method applies if the court, as in Stevens v. Stevens, holds that contribution toward a technical degree is not divisible marital property but should be considered when awarding alimony. The second …

Realtor As "Superbroker": Great Expectations Unrealized?, Rene Sacasa, Don Wiesner

Akron Law Review

This article explores the public policy and expectation issues surrounding the qualifications and liabilities of realtors. It is a premise of this article that two phenomena, the expectation that the realtor is a "superbroker" and the application of the law of fiduciaries, are making the practice unstaffable. This collection of society's needs and biases, it is offered, naturally followed land as a product and its transfer.

First Contact: Establishing Jurisdiction Over Activities In Outer Space, Brian Abrams

Georgia Journal of International & Comparative Law

No abstract provided.

Financing America's Public Infrastructure: Issues For Local Governments, Shelley C. Vazmina

Akron Law Review

This comment examines the role state and local government financing has played in America's infrastructure crisis. This comment also recognizes that infrastructure financing issues in declining cities differ from infrastructure issues due to population expansion.

Part I is particularly relevant to declining cities. It reviews traditional methods by which state and local government obtain operating revenues, and the use of these revenues for infrastructure. It discusses trends and developments which have made traditional financing schemes less useful for infrastructure.

Part II applies in large part to growing cities. Growth creates demand for new infrastructure while straining existing core infrastructure. Alternative …

Improving The Image And Legal Status Of The Burial Services Industry, Marvin M. Moore

Akron Law Review

The purpose of this article is to examine the reasons advanced for excluding funeral parlors and graveyards from predominantly residential neighborhoods, the legal devices most commonly employed to accomplish such exclusion, and the propriety of using the police powers of the state to bar a land use that may not always threaten to thwart any of the recognized aims that the police powers are intended to promote. Finally, the article will recommend some practical steps that operators of mortuaries and cemeteries might take in order to gain more public acceptance. To the extent that the law merely reflects the values, …

Private Property, The Takings Clause And The Pursuit Of Market Gain, Charles H. Clarke

Akron Law Review

This Article proposes a fair return model for the takings clause. This conception of the clause has been an operating principle of welfare capitalism for decades. The Article rejects the model of laissez faire capitalism that once dominated the landscape of the nation's constitutional system and may come back again.

Preventing Franchise Flight: Could Cleveland Have Kept The Browns By Exercising Its Eminent Domain Power?, Steven R. Hobson Ii

Akron Law Review

The purpose of this Comment is to analyze whether Ohio law would allow for such a taking, and to determine if such action would have solved the problem of keeping the Browns in Cleveland. In analyzing this issue and focusing on the difficulties that such a taking would create, it will be demonstrated that this taking probably cannot be achieved successfully, and that some congressional intervention is needed to rectify the franchise relocation problem.

Scalia, Property, And Dolan V. Tigard: The Emergence Of A Post-Carolene Products Jurisprudence, David Schultz

Akron Law Review

This Article proposes an analysis of Scalia's views on property rights and shows how the Justice has been important to, if not the leader in, the current rethinking of takings and land use jurisprudence." Also, this Article will engage in a more comprehensive reevaluation of the jurisprudence of the Carolene Products Era that is transpiring both off and on the Court. While previous works have examined Rehnquist's and his Court's views on property, as well as Scalia's views on expressive freedoms criminal due process, and church/state issues, there is no comprehensive discussion addressing Scalia's views on property rights. To accomplish …

The Intention Of The Settlor Under The Uniform Trust Code: Whose Property Is It, Anyway?, Alan Newman

Akron Law Review

Given the increasingly common use of perpetual and other longterm trusts, the pace of change and complexity in our society now and in the foreseeable future, and our sensibilities with respect to private property rights and dead hand control, the UTC appears to have struck a reasonable balance between respecting the settlor’s intent and accommodating the interests of beneficiaries. Undoubtedly, some will find it to have gone too far in favor of trust beneficiaries, while others will find it not to have gone far enough. In any case, this centuries old debate, like the new perpetual trusts that have contributed …

Bankruptcy Weapons To Terminate A Zombie Mortgage, Andrea Boyack, Robert Berger

Faculty Publications

Bankruptcy’s strongest public policy is the possibility of a fresh start for a borrower – a way for a debtor to free himself from the burdens of pre-petition obligations and re-commence his or her financial life. A debtor can surrender property burdened by a lien to the lien-holder and thereby release him or herself from ongoing obligations under the loan. This is true even in cases where the collateral’s value is less than the secured loan – for in bankruptcy, a lender’s secured claim is limited to the value of its lien. In chapter 13, a debtor who elects to …

Profiles - Ucan’S New Campus Construction Project, Chicago, Illinois, James Hagy, Sahar Nikanjam

Rooftops Project

Funding and constructing a new $41 million facility may be a once-in-a-generation, if ever, event, for many social service not-for-profits. Choosing a site that invests directly in the neighborhood and the people served can have ripple effects far beyond the central purpose of the delivery of services the buildings are designed to support. The Rooftops Project’s Sahar Nikanjam and Professor James Hagy walked the site of UCAN’s new campus construction under way in the Lawndale neighborhood of Chicago.

Summary Of Dep't Of Taxation V. Kawahara., 131 Nev. Adv. Op. 42 (June 25, 2015), Janine Lee

Nevada Supreme Court Summaries

A recorded tax lien has the effect of a judgment lien under NRS 360.473(2) and therefore, cannot have the effect or priority of a mortgage lien. The common law rule of “first in time, first in right” applies to lien priority when a valid deed of trust is attached to a property, thus creating a security interest, prior to the recording of a tax lien; even if not recorded until after the tax lien.

How To Kill A Zombie: Strategies For Dealing With The Aftermath Of The Foreclosure Crisis, Judith Fox

Journal Articles

The foreclosure crisis which began in 2008 is old news; or is it? A lot of attention has been paid to the plight of homeowners struggling to save their homes from foreclosure. Legislative and regulatory changes have made it easier for homeowners to navigate the loss mitigation process. A significant number of people, however, did not try to save their homes. In fact, some actively tried unsuccessfully to give the homes back to their lender. These abandoned homes and abandoned foreclosures have become zombie mortgages. This is the legacy of this crisis.

The existence of these homes is well documented …

Sustaining Neighborhoods Of Choice: From Land Bank(Ing) To Land Trust(Ing), James J. Kelly Jr.

Journal Articles

This essay is based on my closing presentation at the Washburn Law Journal's 2015 symposium entitled “The Future of Housing -- Equity, Stability and Sustainability.” It explores how land banks and land trusts promote social goods, including socioeconomic integration, by connecting with and shielding against, respectively, market forces. Both engage in stewardship of land. Land banks take temporary ownership of vacant, abandoned properties in order to make them available for productive use. Land trusts hold land indefinitely to ensure a social purpose is met. Community land trusts hold land for a purpose that is responsive to the human environment, often …

Exposing The Hocus Pocus Of Trusts, Kent D. Schenkel

Akron Law Review

Part II makes the conceptual case for viewing the trust as an elective cost-externalization device. Part III offers the spendthrift trust as the archetypal model for purposes of our analysis, briefly describes the spendthrift trust, and explores its consequences to outsiders to the trust deal. Part IV offers some reasons why the elective externalities of trusts persist. Part V first examines and rejects a couple of approaches to minimizing the externalized costs of trusts that rely on the “bundle of sticks” approach to property interests. It then moves beyond the bundle of sticks approach, settling on a solution based on …

Begone, Euclid!: Leasing Custom And Zoning Provision Engaging Retail Consumer Tastes And Technologies In Thriving Urban Centers, Michael N. Widener

Pace Law Review

Is urban center retailing in a death spiral? Competition for consumers with Internet vendors is afoot; winners and losers shall be anointed. The threats to physical retailing in an era of the “Internet of Goods” initially are described below. Adaptations by tenants, landlords, and stakeholders in urban centers will be required quickly, and new perspectives and partnerships, including those among local and regional governments, are instrumental if physical retail operations in municipal cores are to survive. The balance of this article describes these needs from the vantage point of each stakeholder; but this article argues that integrating information and communication …

Nature’S Law: The Evolutionary Origin Of Property Rights, Kathryn Loncarich

Pace Law Review

This article contributes to the outline of the origin of property rights set forth by Professor Krier, by more fully analyzing the role of evolutionary biology in the development of property rights. This article focuses on the pre-political formation of property ownership and the initial formation of concepts of property and ownership. Expanding on Krier’s analysis, this article considers the implications of this evolutionary foundation on our modern property regime, particularly given the growing chasm between the wealthy on one side and the poor and middle-class on the other.

Part II discusses the growing disparity of wealth in America and …

The Governance Function Of Constitutional Property, Lynda L. Butler

Faculty Publications

Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule, modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright-line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the …

Finding, Sharing And Risk Of Loss: Of Whales, Bees And Other Valuable Finds In Iceland, Denmark And Norway, William I. Miller, Helle Vogt

Articles

The focus of the paper is twofold: the first part is about how property rights were assigned and ranked in finds, both in those items such as bees, rings and other valuables which were previously owned, and also in those things, like whales, which were unowned. We focus on Icelandic, Danish and Norwegian laws from the twelfth and thirteenth centuries, yet most of the provisions were copied into later laws and were in force up until modern times, some even current now. The second part treats the question of how risks of loss were handled, and how simple forms of …