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2015

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Property Law and Real Estate

Institution
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Articles 1 - 30 of 80

Full-Text Articles in Law

Emergency Takings, Brian Lee Dec 2015

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.


Legal Aspects Of Coastal Adaption & Resilience In Rhode Island: A Workshop For Municipal Solicitors And Staff, Roger Williams University School Of Law, Marine Affairs Institute, Sea Grant Rhode Island, Coastal Resources Management Council, University Of Rhode Island Graduate School Of Oceanography Dec 2015

Legal Aspects Of Coastal Adaption & Resilience In Rhode Island: A Workshop For Municipal Solicitors And Staff, Roger Williams University School Of Law, Marine Affairs Institute, Sea Grant Rhode Island, Coastal Resources Management Council, University Of Rhode Island Graduate School Of Oceanography

School of Law Conferences, Lectures & Events

No abstract provided.


His, Hers, Or Theirs?, Roger Bernhardt, Christine Tour­-Sarkissian Nov 2015

His, Hers, Or Theirs?, Roger Bernhardt, Christine Tour­-Sarkissian

Publications

Marriage of Brandes (2015) 239 CA4th 1461 is not technically a real estate case because the major asset fought over in that dissolution action was an investment advisory business that the husband had founded before marriage, but which had grown enormously during the marriage. Because investment advising is not a real estate activity, Brandes has been omitted from traditional coverage in this Reporter. (It was reported in CEB’s Estate Planning and California Probate Reporter; see 37 CEB Est Plan Rep 69 (Oct. 2015).) But since the opinion has so much to say to lawyers about community and separate property ...


Reforming Reit Taxation (Or Not), Bradley T. Borden Oct 2015

Reforming Reit Taxation (Or Not), Bradley T. Borden

Faculty Scholarship

No abstract provided.


Rent Certainty Is Not Rent Control, Tom Dunne Oct 2015

Rent Certainty Is Not Rent Control, Tom Dunne

Reports

The housing crisis and the debate about rent control should result in a beneficial change to the regulation of the sector but the opportunity could be lost for want of clarity of thinking about the nature of rent certainty and the distinction between it and rent control. At present rent is regulated by the Residential Tenancies Act 2004 (RTA 2004) which provides that rent can only change once a year and cannot be more than the market rent. Many argue a greater degree of rent certainty is required and that rent should not be allowed to increase by more than ...


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

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 Sep 2015

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.


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

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.


Rethinking Rescission, Roger Bernhardt Sep 2015

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 Sep 2015

Valbuena V Ocwen Loan Servicing, Llc, Roger Bernhardt

Publications

No abstract provided.


Dividing The Single Indivisible Transaction: Balancing The Interests Of Mortgagees And Innocent Occupants, Vincent Ooi Sep 2015

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 ...


A Glimpse Into The Realpolitik Of Federal Land Planning, In Comparative Context With The Mysterious Nlupa And The Czma, Zygmunt J.B. Plater Aug 2015

A Glimpse Into The Realpolitik Of Federal Land Planning, In Comparative Context With The Mysterious Nlupa And The Czma, Zygmunt J.B. Plater

Boston College Law School Faculty Papers

There is an old adage that “those who fail to plan, plan to fail.” Planning is a fundamentally rational, basal process shared at some level and to some degree by all, establishing and implementing frameworks to guide our human actions toward the accomplishment of various desired and defined objectives. Thoughtfully designed and implemented planning is no less rational and essential for governmental entities than it is for corporations and individuals.

This essay surveys an interesting comparison between two quite different federal approaches to directive land and resource management planning. On one hand, the analysis reviews the federal mandate for layered ...


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

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 ...


Mira Overseas Consulting Ltd. V Muse Family Enters., Ltd., Roger Bernhardt Jul 2015

Mira Overseas Consulting Ltd. V Muse Family Enters., Ltd., Roger Bernhardt

Publications

The normal rule dictating the priority of rival claims generally depends on which party got its judgment first (rather than, e.g., which made its loan first, or first went unpaid, or was first to file suit), but this decision adds that the date of getting a judgment relates back to an earlier time if a lis pendens had been filed.


Lessons Not To Learn About Merger, Roger Bernhardt Jul 2015

Lessons Not To Learn About Merger, Roger Bernhardt

Publications

Ram’s Gate Winery, LLC v Roche (2015) 235 CA4th 1071 teaches lessons that both transactional and litigation attorneys should not particularly want to learn. These lessons suggest that the old common law doctrine of merger can be safely ignored, whereas clients could suffer unpleasant consequences if those issues are not securely covered in the contract.


Monterossa V Superior Court, Roger Bernhardt Jul 2015

Monterossa V Superior Court, Roger Bernhardt

Publications

In 2005, petitioners obtained a $359,650 mortgage from PNC Mortgage for the purchase of a home. In 2013, petitioners became unable to make their mortgage payments and contacted PNC for hardship assistance. PNC failed to send a hardship assistance package to petitioners. Despite that failure, PNC later notified petitioners that their request for hardship assistance was denied “because PNC did not receive a completed hardship assistance package” from petitioners and recorded a notice of default. In November 2013, petitioners submitted a loan modification agreement to PNC; in December 2013, PNC confirmed that it had received a complete package. Despite ...


Bank Of America V. Caulkett, Roger Bernhardt Jul 2015

Bank Of America V. Caulkett, Roger Bernhardt

Publications

A junior mortgage lien cannot be stripped off in a Chapter 7 bankruptcy just because it is entirely underwater. California law pretty much says the same; see Barbieri v Ramelli (1890) 84 C 154, holding that a secured creditor’s demonstration that the mortgages senior to hers exceed the value of the property is not enough to let her bypass the oneaction rule and sue on her note. On the other hand, if the senior has actually foreclosed his superior lien, then she is a “soldout junior” who can sue directly on her note without foreclosing.


California Bldg. Indus. Ass'n. V. City Of San Jose, Roger Bernhardt Jul 2015

California Bldg. Indus. Ass'n. V. City Of San Jose, Roger Bernhardt

Publications

If an inclusionary housing ordinance is regarded as an “exaction”—because it compelled a developer to pay through land dedication or in-lieu fees—then the city must show that (1) there was a reasonable relationship between the deleterious effects of the new housing and the economic burden imposed on the developer —the nexus—and (2) the burden is reasonably proportional to the problems created by the development.


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

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.


Sustaining Neighborhoods Of Choice: From Land Bank(Ing) To Land Trust(Ing), James J. Kelly Jr. Jun 2015

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 ...


How To Kill A Zombie: Strategies For Dealing With The Aftermath Of The Foreclosure Crisis, Judith L. Fox Jun 2015

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


The Governance Function Of Constitutional Property, Lynda L. Butler Jun 2015

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 ...


Of Property Rights And Rights To Property, James E. Krier Jun 2015

Of Property Rights And Rights To Property, James E. Krier

Articles

In 2004, President George W. Bush said, “I believe in private property so much, I want everyone in America to have some.” Much earlier, in 1948, an economics professor from the University of Texas expressed the same sentiment in strikingly similar terms. When asked by an investigatory committee of the Texas legislature whether he favored private property, he replied, “I do . . . and so strongly that I want everyone in Texas to have some.” Even putting aside the possibility that the President’s speechwriters found inspiration in an unacknowledged source, there are several interesting things to note about these two statements ...


Bitproperty, Joshua A.T. Fairfield May 2015

Bitproperty, Joshua A.T. Fairfield

Scholarly Articles

Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.

Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero ...


An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Nancy Mclaughlin, Federico Cheever May 2015

An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Nancy Mclaughlin, Federico Cheever

Utah Law Faculty Scholarship

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by conservation ...


Variances And Hardship, Roger Bernhardt May 2015

Variances And Hardship, Roger Bernhardt

Publications

Cities may want more eldercare facilities located within their municipal borders, but a neighborhood homeowner association inside the city might feel the other way if the project is going to be located too near to its members’ residences. If the local officials mess up in complying with the enabling standards in approving the project, that fact simply gives the opposition all the more ammunition to block the development.


Alborzian V Jpmorgan Chase Bank, Roger Bernhardt May 2015

Alborzian V Jpmorgan Chase Bank, Roger Bernhardt

Publications

Alborzian v JPMorgan Chase Bank (2015) 235 CA4th 29.


The Possession Heuristic, James E. Krier, Christopher Serkin May 2015

The Possession Heuristic, James E. Krier, Christopher Serkin

Book Chapters

A heuristic, as Daniel Kahneman (2011: 98) observes, “is a simple procedure that helps find adequate, though often imperfect, answers to difficult questions.” Kahneman is a psychologist, one of a handful of scholars who have brought heuristics to the attention of a general audience, thanks in large part to several books (Kahneman, Slovic, and Tversky 1982; Gilovich, Driffin, and Kahneman 2002). Just as Thomas Kuhn’s 1962 ideas about paradigms in the history of science are fodder for academics in all sorts of fields (this for better or worse), so too for Kahneman and company’s ideas about heuristics, and ...


Summary Of Branch Banking & Trust V. Windhaven & Tollway, Llc, 131 Nev. Adv. Op. 20 (Apr. 30, 2015), Joseph Meissner Apr 2015

Summary Of Branch Banking & Trust V. Windhaven & Tollway, Llc, 131 Nev. Adv. Op. 20 (Apr. 30, 2015), Joseph Meissner

Nevada Supreme Court Summaries

The Court determined the proper interpretation of NRS 40.455(1), and applied it in a claim for a deficiency judgment following an out-of-state nonjudicial foreclosure. NRS 40.455(1) “does not require an out-of-state trustee’s sale to comply with NRS 107.080, nor does it preclude a deficiency judgment in Nevada when a nonjudicial foreclosure sale is conducted pursuant to the laws of another state.”


California Bank V. Delponti, Roger Bernhardt Apr 2015

California Bank V. Delponti, Roger Bernhardt

Publications

In DelPonti, the court of appeal held a guarantor’s waiver did not include allowing the lender “to profit from its own fraudulent conduct.” That position appears to fit right in to the Restatement doctrine that this is as far as a suretyship waiver can go, no matter how adroitly it is worded.