Property Law and Real Estate Commons^™

The Unfinished Business Of Dodd-Frank: Reforming The Mortgage Contract, Christopher K. Odinet

Faculty Scholarship

The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners …

Location, Location, Mis-Location: How Local Land Use Restrictions Are Dulling Halfway Housing's Criminal Rehabilitation Potentia, Michael J. Mcgowan

Student Scholarship

Part I of this Article begins with a brief historical explanation of halfway houses as a model of criminal rehabilitation. Part II addresses why recidivism rates provide the most appropriate metric gauging halfway houses' success and how they apparently have failed to improve recidivism rates. Part III then delves into the body of scholarship that explains how an individual's likelihood of landing back behind bars is to some extent demonstrably tied to their location, meaning their surrounding cultural, economic, and criminogenic environment. Part IV discusses the sparse data on the sorts of neighborhoods where halfway houses ultimately end up and …

Come And “Take” It: Whooping Cranes, Texas Water Rights, Endangered Species Act Liability, And Reconciling Ecological Scientific Testimony Within The Context Of Proximate Causation, Brett A. Miller

Student Scholarship

Tension between science and the law is a pervading feature of Endangered Species Act (ESA) jurisprudence. Incorporating the scientific discipline of ecology within the legal landscape presents distinct challenges, particularly in comparison with more traditional laboratory sciences. Within the realm of Endangered Species Act liability, the intricacies of nature exacerbate already complicated links of causation, challenging the ability to prove violations of the “take” prohibition. Because uncertainties permeate scientists’ ability to understand complex ecosystem processes, courts should rely on the overarching practicality of common law principles when reviewing ecological testimony.

When evaluating claims that allege violations of the “take” prohibition, …

Hollywood Blackout: Impact Of New Architectural Copyright Laws On The Filming Industry, Jake Jensen

Texas A&M Journal of Property Law

This Article will focus on particular emerging copyright laws and their effect on the film industry. Section II will begin with a brief overview of the film industry as well as a brief discussion of the reasons people watch films. The Section will then proceed with a discussion on the importance of filming locations, as well as how the industry has changed in its perception of filming locations. Section III will detail what the current copyright law is, as well as exceptions the courts have used in determining copyright infringement. Section IV will then describe the Freedom of Panorama laws …

It’S Up In The Air! Potential Criminal Liabilities For Drone-Associated Issues In The Great State Of Texas, Anthony Pax

Texas A&M Journal of Property Law

“Look! Up in the sky! It’s a bird! It’s a plane!” No, it’s a drone! Private and commercial drone use is expanding as quickly as the technology can be developed to fulfill the various needs of different users. As new ways to use drones are conceived every day, the potential for conflict is ever increasing. This Article will argue that, in the absence of any real federal guidance on the subject, the state of Texas must apply its current criminal law framework to any drone-related conflicts that may arise. This will provide clear guidelines for resolving the multitude of issues …

Doctoring Up Cybersecurity Standards: A Solution To Adequate Internet Security Measures Post Wyndham, Vince Vela

Texas A&M Journal of Property Law

In today’s technological world, it is common for corporations and individuals alike to enjoy and exploit the benefits of cloud computing. These advancements, however, come with a price as the modern technological age continues to grow. By its very nature, the normal course of business has changed drastically. From private entrepreneurial websites to conglomerates like Amazon, Inc., making purchases online has never been easier. Rather than traveling to your products, consumers today simply create an account with a certain business, enter personal credentials, provide a credit or debit card number for the transaction, and give an address for the shipment …

Red-Handed Without A Defense: Avoiding Civil Forfeiture When Leasing To Lawful Marijuana Tenants, Cielo Fortin-Camacho

Texas A&M Journal of Property Law

Lawful marijuana tenants (“LMT”), or tenants who lease property for the purpose of operating a marijuana-related business in compliance with the applicable marijuana provisions of their state, are demanding property and offering big bucks—leaving property owners in a precarious situation. This Article discusses the problem faced by property owners wishing to lease premises to growers, processors, and sellers of marijuana in states that have adopted marijuana provisions and established regulatory frameworks. In these states, marijuana provisions do not alter the respective state’s landlord-tenant statutes, despite the various property-related requirements marijuana businesses must adhere to for licensure to operate. Licensing requirements …

How The Government Can ‘Come And Take It’: Asset Forfeiture And How Texas Should Change Its Practice, Sean M. Grove

Texas A&M Journal of Property Law

As a model of review, this Comment will use Texas’s laws—juxtaposed against state laws that are providing more protections—to compare what Texas is doing wrong in light of what other states are doing right. First, this Comment will give a brief history of asset forfeiture in general and provide the status of civil asset forfeiture in the twentyfirst century. Part II will discuss the benefits of some asset forfeiture programs while highlighting the shortcomings and burdens that civil asset forfeiture brings. Part III will show state legislation aimed at curtailing civil asset forfeiture and the factors that make Texas’s laws …

Show Me The Money: How Registered Sex Offenders Affect Property Tax Revenue And What Governments Can Do To Recover The Losses, Justin Simmons

Texas A&M Journal of Property Law

Many people have written scholarly articles highlighting the pros and cons of SORs. Some have taken the analysis a step further by pointing out the impact SORs have on the values of homes in the vicinity of a registered sex offender (“RSO”). While these studies have pointed out the impact the presence of an RSO can have on the property value for an individual homeowner, research regarding the impact RSOs have on property tax revenue for taxing districts is nonexistent. This Article highlights the correlation between the depressive effect the presence of RSOs has on property values, the impact this …

Blood & Money: A Conflict In Texas Statutes Regarding Adoptees’ Inheritance Rights From And Through Biological Parents, Andrea Smith

Texas A&M Journal of Property Law

In Texas, the statutes are in conflict as to whether an adopted person is emphatically given the right to inherit intestate through and from their biological parents. This Note will delve into the history of adoption law, the adoption law process, differences in the statutes, and suggest how the Texas Legislature can mend these statutes to be in harmony with each other. For the purposes of this Note, when adoptee is mentioned it only refers to a child who was adopted as a minor.

Fixed Vs.Floating Non-Participating Oil & Gas Royalty In Texas: And The Battles Rage On . . ., Christopher S. Kulander

Texas A&M Law Review

The author discusses fixed and floating non-participating oil and gas royalty in Texas and concludes that royalty cases will continue to be heard by the courts.

Of Progressive Property And Public Debt, Christopher K. Odinet

Faculty Scholarship

Debt is property, and, because of this, property law has a lot to say about how debts are resolved. Indeed, property law is deeply woven into the fabric of the bankruptcy process — a fact that has been woefully neglected by many scholars. The ability to provide debtors with relief and the ability of creditors to demand protections from discharge or diminished payments are both concepts that are intimately tied to property law. However, despite the doctrinal workings of property law in this context, from a theoretical standpoint property law has been underutilized. This is particularly true, as this Article …

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

Faculty Scholarship

During the housing crisis banks were confronted with a previously unknown number mortgage foreclosures, and even as the height of the crisis has passed lenders are still dealing with a tremendous backlog. Overtime lenders have increasingly engaged third party contractors to assist them in managing these assets. These property management companies — with supposed expertise in the management and preservation of real estate — have taken charge of a large swathe of distressed properties in order to ensure that, during the post-default and pre-foreclosure phases, the property is being adequately preserved and maintained. But in mid-2013 a flurry of articles …

Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Faculty Scholarship

In a time of limited resources and sluggish economic growth, competition between cities has become palpable, and the race for new investment often dictates the public agenda. To that end, the explosive growth of public-private partnerships between local governments and private investors has resulted in the creation of a myriad of special taxing districts, the purposes of which are limited only by the imagination. Of particular concern has been the growth of certain real estate development-related districts. Although first conceived to fund critical improvements where conventional credit was not available, in more recently years these special districts have been used …

Recognition And Reflection, Kristen Barnes

Texas A&M Journal of Property Law

This Article focuses on the meaning of the system Gerhart describes by unpacking some of the conclusions he draws regarding legitimacy, cooperation, and morality. The Article also evaluates the framework he proposes for achieving decisions that are “fair and efficient.”3 The Article concludes that Gerhart’s theory significantly advances the project of incorporating equalizing concepts into property law which should result in decisions that are more equitable from a participatory and distributive perspective. However, there are aspects of the theory that do not capture the discordant elements of property systems and that do not unearth the inequalities at the root of …

Property, Morality, And Moral Psychology: Comments On Gerhart’S Property Law And Social Morality, Dave Fagundes

Texas A&M Journal of Property Law

My comments will proceed in two parts. In Part I, I will briefly describe and summarize the study of moral psychology, indicating how it might apply to property law. And in Part II, I will analyze Property and Social Morality through the lens of moral psychology, showing how Professor Gerhart’s project may be advanced through a richer understanding of the content of our ethical beliefs about property and the psychological mechanisms that give rise to them.

Moral Obligation And Natural Capital Commons On Private Land: Perspectives On Peter Gerhart’S Property Law And Social Morality, Blake Hudson

Texas A&M Journal of Property Law

This Article makes a simple and hopefully straightforward attempt to demonstrate how Gerhart’s property theory fills the gaps in privatized commons resource theory. Part II describes in more detail privatized commons resource theory, while Part III discusses Gerhart’s theory both generally and more specifically in the context of natural resources management. This Part first analyzes Gerhart’s explicit grappling with the commons broadly, and more directly wrestles with how his theory lays a legal framework for addressing temporal commons and the interests of future generations in natural capital. Next, this Part discusses the role of positive public law in manifesting society’s …

What Is Owed: Obligation’S Relevance In Property And Intellectual Property Theory, Kali Murray

Texas A&M Journal of Property Law

This Essay explores how Gerhart’s theory of social obligation in property law offers us an innovative way to characterize key theories in patent law. Consequently, throughout this Essay, I employ lessons from patent law that provide a concrete example of how obligations may work in various doctrinal subjects. Part I outlines the basic contours of Gerhart’s theory of obligation. Part II outlines the three basic functions of obligation in property and intellectual property theory. It is hoped that this Essay will serve a substantive function by continuing the ongoing dialogue between property law and intellectual property law in ways that …

Reflections An Property As A Social Good, Peter M. Gerhart

Texas A&M Journal of Property Law

In this reflection, Professor Gerhart relates the ideas of the symposium contributors to his goals in writing Property Law and Social Morality. In doing so, he reflects, in Part I, on his attempt to separate politics from private law property theory, and, in Part II, on how his framework theory provides a mechanism for integrating ideas about the content of legal doctrine from a wide variety of intellectual disciplines. In the first Part of his reflection, Professor Gerhart comments on the corrective justice/distributive justice distinction, related theories of human flourishing, and on rights theories. In the second Part of the …

A Moral Theory Of Property, Laura S. Underkuffler

Texas A&M Journal of Property Law

Gerhart’s theory of “property as tort” is simple, bold, and intuitively compelling. Just as actions that an individual voluntarily undertakes can impose moral obligations in tort, so actions that an individual voluntarily undertakes can impose moral obligations in property. Finally, we have a simple, understandable basis on which other-regarding obligations can be imposed upon property owners, for the externalities that they cause. But does it capture all that is involved in the ownership of property? Put another way, does Gerhart reckon with all of the implications of his theory in the complex world of property ownership?

On Corrective Justice And Rights In Property: A Comment On Property Law And Social Morality, Eric R. Claeys

Texas A&M Journal of Property Law

In this Review, I hope to critique specific parts of Property Law and Social Morality that fairly represent these various reactions. In Part I, I explain the basis for my first cheer, and situate Property Law and Social Morality in relation to other prominent moral theories of property. In Part II, I study one representative example confirming my second cheer about Gerhart’s cross-pollination experiment—his critique of economic “evolutionary” or “Demsetzian” accounts of property in chapter 4. In Part III, I offer what I hope is a friendly amendment to Property Law and Social Morality, to clarify several possible confusions about …

From Social Recognition Of Property To Political Recognition By The State: Peter Gerhart’S Property Law And Social Morality And The Evolution Of Positive Rights, Christopher Serkin

Texas A&M Journal of Property Law

This short response argues that positive property rights—especially in a modern regulatory state—are inherently redistributive. When the State has a choice between different regulatory strategies for achieving public goals, constitutional limits like the Takings Clause should not rely on formal categories but must instead account explicitly for distributive concerns. At the end of the day, the State is an active, not passive, player in the definition of property rights, a role that comes with both constitutional limitations and requirements.

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker

Faculty Scholarship

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of “ripeness” requiring most Fifth Amendment regulatory-takings claimants to seek “just compensation” in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora’s box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs the …

Fairness, Equity, And A Level Playing Field: Development Goals For The Resilient City, Christopher K. Odinet

Faculty Scholarship

In the wake of the Great Recession and in the midst of a political climate that endorses the devolution of governmental power to more localized levels there has been a resurgence in recent years of the idea of the city as the center of American life. Competition between cities in capturing economic development projects has become palpable. Success can lead to job creation and growth, private investment, and, importantly, increased tax revenues. Cities often compete with one another by each offering their own package of public incentives. In the waning hours of negotiations hundreds of millions of public dollars can …

Progressive Property Moving Forward, Timothy M. Mulvaney

Faculty Scholarship

In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,” Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

The Perils Of Primacy: Successor Liability For Lenders Turned Declarants In Louisiana Common Interest Communities, Christopher K. Odinet

Faculty Scholarship

In surveying the landscape of contemporary American real estate, it is increasingly difficult — if not impossible — to find a development that is not part of a common-interest community. Whether one is strolling through the avenues of a mixed-use commercial development or driving down the manicured tree-lined streets in a residential neighborhood, a complex and detailed legal regime underpins these developments in order to ensure that the order, quality, and aesthetic of the project is ensured and maintained from its earliest days and long into its future.

Since its inception in the early 1900s, the complexity of common interest …

The Honey Trap: How Pesticide Regulations Hold The Key To Honey Bee Survival

Texas A&M Journal of Property Law

No abstract provided.

Field Of Dreams: Is The Movie Site's Commercialization A Dream Plan With Significant Benefits Or A Nightmare Script With Crippling Effects?, Michael J. Mcgraw

Texas A&M Journal of Property Law

This Comment will detail the field’s powerful attraction, discuss and analyze the applicable zoning laws and governing case law associated with comparable property disputes in relation to the present facts, praise the use of tax rebates to help subsidize the project, and assert that the public sector could have established even further requirements for the private business to meet before receiving such substantial public funds.