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Articles 61 - 90 of 192
Full-Text Articles in Property Law and Real Estate
Riss V. Angel: Washington Remodels The Framework For Interpreting Restrictive Covenants, Casey J. Little
Riss V. Angel: Washington Remodels The Framework For Interpreting Restrictive Covenants, Casey J. Little
Washington Law Review
In Riss v. Angel, the Supreme Court of Washington declared that in disputes between subdivision homeowners, courts must construe restrictive covenants to give effect to the covenants' intended purposes by considering surrounding circumstances to protect the homeowners' collective interests. The court further held that when restrictive covenants grant discretion to architectural review committees (ARCs) to approve new construction or remodels, ARCs or other homeowners association committees that enforce such covenants must exercise their authority reasonably and in good faith. Riss represents a departure from prior precedent that required courts to construe strictly the terms of restrictive covenants to limit …
Police Power, Gifts, And The Washington Constitution: A Framework For Determining The Validity Of Property Rights Legislation, Gregory M. Mohrman
Police Power, Gifts, And The Washington Constitution: A Framework For Determining The Validity Of Property Rights Legislation, Gregory M. Mohrman
Washington Law Review
In November 1995, Washington voters rejected Initiative 164, a revolutionary property rights law that would have required governmental entities to compensate landowners for any loss in property value due to regulations on land use, unless those regulations were designed to prevent a public nuisance. Despite the initiative's defeat at the polls, a strong property rights movement is likely to prompt legislators to consider implementing a percentage-loss formula for determining when regulators owe compensation to property owners. This Comment discusses the inherent police power of the state to regulate property use in the public interest and argues that percentage-loss laws would …
Suburban Sprawl Or Suburban Villages? Defining Planning Principles For New Land Development In Indonesia, Stephen Day
Suburban Sprawl Or Suburban Villages? Defining Planning Principles For New Land Development In Indonesia, Stephen Day
Washington International Law Journal
Indonesian land use regulations are increasingly designating areas where urban growth is either targeted or excluded, echoing a similar trend in other Pacific Rim nations. Yet as with growth planning in the United States, there is a near total lack of regulatory direction guiding the form or pattern of urban development within the target areas. Sprawling suburban development, essentially patterned after midcentury-style American models, is rapidly consuming the most desirable developable land. Although significant policy goals and legislation are emerging that may provide the basis for suburban land planning principles, neither the central nor provincial governments have consistently articulated such …
Sudden Impact: The Effect Of Dolan V. City Of Tigard On Impact Fees In Washington, Joseph D. Lee
Sudden Impact: The Effect Of Dolan V. City Of Tigard On Impact Fees In Washington, Joseph D. Lee
Washington Law Review
As state and federal funding for public improvements steadily declines and is outstripped by demand, municipalities are turning to impact fees to fund public projects. However, the growth of impact fees has resulted in an increasing number of legal challenges by developers and private land owners. This Comment examines the evolution of impact fees in Washington and explores the legal concerns raised by the fees in light of Dolan v. City of Tigard. The Comment concludes that some impact fee statutes satisfy Dolan's "rough proportionality" test, while others do not adequately meet the U.S. Supreme Court's requirements. Impact …
The Role Of Bureaucracy In Managing Urban Land In Vietnam, John Gillespie
The Role Of Bureaucracy In Managing Urban Land In Vietnam, John Gillespie
Washington International Law Journal
In recent years, the Vietnamese government has opened up its economy to both domestic and foreign private investors. In the construction industry, however, developers must contend with a legal environment fraught with contradictions and idiosyncrasies. The industry is one marked by the subordination of law-widespread patronage, party policy, and traditional customs. While property rights superficially resemble those in Western states, ownership and development are in theory strictly controlled by the central government. But paradoxically, the level of compliance with property laws is substantially lower in Vietnam than in the West. Noncompliance with property laws and building regulations is perpetuated by …
Pinpointing The Beginning And Ending Of A Temporary Regulatory Taking, Gregory M. Stein
Pinpointing The Beginning And Ending Of A Temporary Regulatory Taking, Gregory M. Stein
Washington Law Review
The Supreme Court has held that if a government body regulates land to such an extent that it effectively takes the property, then it must pay just compensation to the landowner. Even if the government elects to rescind the offending regulation, it still must provide compensation to the owner for the duration of the regulatory taking. Unfortunately, the Court has had no occasion to determine when such temporary regulatory takings become effective and when they terminate, and the lower courts only rarely have reached these difficult remedial questions. This Article seeks to pinpoint precisely when a temporary regulatory taking begins …
Sometimes An Impact Fee Is Not Just An Impact Fee: The Possible Inequitable Application Of Hawaii's Impact Fee Statute To Foreign Investors, Jose F. Vera
Washington International Law Journal
Historically, Hawaii has assessed foreign developers high impact fees either as a means to raise capital for affordable housing or as a means to regulate foreign investment. In 1992, Hawaii enacted House Bill 3787, an impact fee statute, to promote uniformity in Hawaii's assessments of impact fees. Although Hawaii's statute provides uniformity for most developers, it still permits local governments to assess foreign developers disproportionately higher impact fees. This Comment examines how a foreign developer might challenge either Hawaii's impact fee statute or an individual impact fee assessment as violating his or her constitutional rights under the Fourteenth Amendment's Equal …
Cornering The Quark: Investment-Backed Expectations And Economically Viable Uses In Takings Analysis, Lynda J. Oswald
Cornering The Quark: Investment-Backed Expectations And Economically Viable Uses In Takings Analysis, Lynda J. Oswald
Washington Law Review
Although stressing the "ad hoc, factual" nature of regulatory takings analysis, the United States Supreme Court has, over time, elevated the prominence of two economic tests in its analysis. In this Article, the author criticizes the importance placed on the tests and argues that the validity of a regulation must be determined based on the legitimacy of the governmental objective and the relationship between that objective and the challenged regulation, and not on the economic impact of the regulation on the property owner. The author rejects the notion that exercises of the eminent domain power and valid exercises of the …
Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan
Preserving Real Estate Contract Financing In Washington: Resisting The Pressure To Eliminate Forfeiture, Thomas Leo Mckeirnan
Washington Law Review
There is pressure in Washington to abolish the forfeiture remedy from real estate contracts. Eliminating forfeiture would cripple the real estate contract and thus provide a disincentive for sellers to finance sales of their property. This result would be economically unsound and in conflict with the public policy in favor of promoting home ownership. Instead of abolishing forfeiture, the Washington State Legislature should amend current legislation to provide a more sensible and certain forfeiture remedy.
Easements By Necessity: A Threshold For Inholder Access Rights Under The Alaska National Interest Lands Conservation Act, Galen G.B. Schuler
Easements By Necessity: A Threshold For Inholder Access Rights Under The Alaska National Interest Lands Conservation Act, Galen G.B. Schuler
Washington Law Review
Nineteenth Century federal land grants created a legacy of private lands surrounded by federal land in the American West. Owners of such lands (inholders) were routinely granted access across federal land by implicit common law rights until the 1960s when federal land policy became more restrictive. In 1981, the Ninth Circuit held that the Alaska National Interest Lands Conservation Act (ANILCA) provided a statutory entitlement for inholder access. Since then, the Ninth Circuit also has held that ANILCA preempts any common law access rights. This Comment argues that the common law doctrine of easements by necessity remains a threshold basis …
The Effect Of Lucas V. South Carolina Coastal Council On The Law Of Regulatory Takings, Ann T. Kadlecek
The Effect Of Lucas V. South Carolina Coastal Council On The Law Of Regulatory Takings, Ann T. Kadlecek
Washington Law Review
In Lucas v. South Carolina Coastal Council, the United States Supreme Court established a two-part takings analysis. The first step is an "economically viable use" threshold question, subject to a nuisance exception. The second step is a balancing test in which courts weigh the public and private interests involved. Although this two-part analysis differs in structure from most lower court takings analyses, most courts already apply a functionally equivalent test. Therefore, unless the Court alters the unit of land to which it applies, this new analysis will have little effect on the outcome of takings challenges to land use regulations.
Rights Of Washington Junior Lienors In Nonjudicial Foreclosure—Washington Mutual Savings Bank V. United States, 115 Wash. 2d 52, 793 P.2d 969, Clarified, Reconsideration Denied, 800 P.2d 1124 (Wash. 1990), John D. Sullivan
Washington Law Review
In Washington Mutual Savings Bank v. United State, the Washington Supreme Court extended the anti-deficiency provisions of the Deed of Trust Act to all non-foreclosing junior lienors. Because this decision makes all junior obligations uncollectible following a nonjudicial foreclosure, it may have a chilling effect on lenders and a serious impact on the availability of home equity loans. This Note examines the Washington Mutual decision and suggests that the court should have determined instead that a deficiency is allowed, but should be computed after applying any surplus value in the property sold against junior obligations. This Note also recommends a …
Taking Issue With Takings: Has The Washington State Supreme Court Gone Too Far?, Jill M. Teutsch
Taking Issue With Takings: Has The Washington State Supreme Court Gone Too Far?, Jill M. Teutsch
Washington Law Review
The Washington State Supreme Court has expressed concern for local governments' potential financial liability under the taking clauses of the federal and state constitutions. Accordingly, the court adopted a comprehensive framework to analyze regulatory challenges and mitigate the chilling effect of potential financial liability. The court, however, went too far in its zeal to promote innovative land-use measures. Its broadly inclusive insulation doctrine allows little room for any regulatory takings. Because the insulation doctrine fails to meet a federal minimum of constitutionality, the doctrine must be relaxed to comport with precedent. To prevent the return of the chilling effect, the …
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Washington Law Review
By 1880 Congress had passed nearly 3000 statutes granting or regulating parts of the public domain. Administrative and judicial case loads increased correspondingly, as many thousands of claims had to be verified and recorded and growing numbers of disputes adjudicated. This article recalls an early far-west chapter of the story, a remarkable series of decisions by Oregon federal district Judge Matthew P. Deady interpreting the cornerstone of Pacific Northwest public land law, the 1850 Oregon Donation Act. Although Deady decided other public land law questions as well, it is his Donation Act decisions helping to determine ownership of the Portland …
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Formalism And Fairness: Matthew Deady And Federal Public Land Law In The Early West, Ralph James Mooney
Washington Law Review
By 1880 Congress had passed nearly 3000 statutes granting or regulating parts of the public domain. Administrative and judicial case loads increased correspondingly, as many thousands of claims had to be verified and recorded and growing numbers of disputes adjudicated. This article recalls an early far-west chapter of the story, a remarkable series of decisions by Oregon federal district Judge Matthew P. Deady interpreting the cornerstone of Pacific Northwest public land law, the 1850 Oregon Donation Act. Although Deady decided other public land law questions as well, it is his Donation Act decisions helping to determine ownership of the Portland …
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Washington Law Review
This Comment analyzes current Philippine land reform efforts, focusing on the constitutional definition of just compensation. First, the Comment discusses past Philippine land reform efforts. Second, the Comment analyzes legal arguments relating to a fair market value interpretation of just compensation. The Comment concludes that just compensation does not need to be interpreted as fair market value. In fact, such an interpretation may effectively abort any land reform effort in the Philippines, and perpetuate the structure of land ownership which the constitution seeks to remedy. Finally, this Comment proposes an alternative interpretation for land reform valuation that meets the just …
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Philippine Land Reform: The Just Compensation Issue, Timothy Milton Hanstad
Washington Law Review
This Comment analyzes current Philippine land reform efforts, focusing on the constitutional definition of just compensation. First, the Comment discusses past Philippine land reform efforts. Second, the Comment analyzes legal arguments relating to a fair market value interpretation of just compensation. The Comment concludes that just compensation does not need to be interpreted as fair market value. In fact, such an interpretation may effectively abort any land reform effort in the Philippines, and perpetuate the structure of land ownership which the constitution seeks to remedy. Finally, this Comment proposes an alternative interpretation for land reform valuation that meets the just …
Washington's New Quasi-Community Property Act: Protecting The Immigrant Spouse, Thomas R. Andrews
Washington's New Quasi-Community Property Act: Protecting The Immigrant Spouse, Thomas R. Andrews
Articles
In 1986, Washington followed the lead of several other community property jurisdictions by adopting quasi-community property legislation. The act is designed to prevent a spouse who has onerously acquired property during marriage while the couple resided in a common law state from disinheriting his or her surviving spouse as to that property after moving to Washington. It has significant implications not only for married couples contemplating a move to Washington, but also for those who have moved to Washington from common law jurisdictions in the past. This article explains why the risk of disinheritance arises, describes the provisions of Washington's …
Extending The Benefit Of An Easement: A Closer Look At A Classic Rule—Brown V. Voss, 105 Wn. 2d 366, 715 P.2d 514 (1986), Pamela Mcclaran
Extending The Benefit Of An Easement: A Closer Look At A Classic Rule—Brown V. Voss, 105 Wn. 2d 366, 715 P.2d 514 (1986), Pamela Mcclaran
Washington Law Review
In Brown v. Voss the Washington Supreme Court considered whether an easement may be extended to benefit a nondominant parcel. The court endorsed the classic property rule that the benefit of an easement may not be extended by the dominant parcel owner to benefit other parcels. Furthermore, the court declared that any extension of an easement to benefit a nondominant parcel would be a misuse of the easement. Nevertheless, after weighing the relative hardship to the parties, the court refused to enjoin the extension of the easement where the resulting hardship to the dominant parcel would greatly exceed the benefit …
The Washington Real Estate Contract Forfeiture Act, Linda S. Hume
The Washington Real Estate Contract Forfeiture Act, Linda S. Hume
Washington Law Review
The Real Estate Contract Forfeiture Act (the Act), which became effective January 1, 1986, creates a nonjudicial procedure for forfeiture of the purchaser's interest in a real estate contract that terminates the purchaser's rights in the contract and in the real property that is the subject matter of the contract. Compliance with the Act's procedures should clear the seller's title to the property. The Act represents a significant departure from common law forfeiture procedures. This discussion will trace the origins of the Act, explain its basic design and purpose, and indicate where the Act changes or parallels the prior common …
Subdivision Exactions In Washington: The Controversy Over Imposing Fees On Developers, Martha Lester
Subdivision Exactions In Washington: The Controversy Over Imposing Fees On Developers, Martha Lester
Washington Law Review
This Comment briefly traces the history of subdivision regulation in Washington as a means of imposing conditions on developers or exacting land dedication or fee payment from developers. It discusses the Hillis Homes decision and analyzes the relationship between the new state statute and other statutory land use regulations. This Comment concludes that, although a municipality's authority to impose development fees has been limited, existing statutory authority still allows a municipality to impose conditions on subdivision development.
Court Actions Contesting The Nonjudicial Foreclosure Of Deeds Of Trust In Washington, Joseph L. Hoffman
Court Actions Contesting The Nonjudicial Foreclosure Of Deeds Of Trust In Washington, Joseph L. Hoffman
Washington Law Review
The basic objectives of Washington real property law and of the Deed of Trust Act can be achieved only through a systematic approach to court actions contesting the nonjudicial foreclosure of deeds of trust. This Comment proposes judicial interpretations and legislative amendments designed to maintain the efficiency of the nonjudicial foreclosure process while enhancing both the fairness of the process and the stability of the land title system.
Some Thoughts On The Decline Of Private Property, Joseph L. Sax
Some Thoughts On The Decline Of Private Property, Joseph L. Sax
Washington Law Review
A case could be made for the proposition that property rights have been in a state of more-or-less continuous decline for many decades, and that there is nothing to report on that front but more of the same. I do not agree. I believe that we have moved in recent years from a situation (characterized by conventional urban zoning) in which we generally encourage developmental rights, though recognizing they must from time to time be restrained, to one in which developmental activity has itself become suspect. As a result, we are in the midst of a major transformation in which …
Testing The Constitutional Validity Of Land Use Regulations: Substantive Due Process As A Superior Alternative To Takings Analysis, Ross A. Macfarlane
Testing The Constitutional Validity Of Land Use Regulations: Substantive Due Process As A Superior Alternative To Takings Analysis, Ross A. Macfarlane
Washington Law Review
Two clauses of the United States Constitution figure most prominently in the debate over the constitutional limits on the governmental power to regulate land. They are the just compensation clause of the fifth amendment and the due process clause of the fifth and fourteenth amendments. Neither the courts nor the commentators agree, however, on which provision to apply. Courts frequently confuse and blend the distinct concepts of: (1) taking property without payment of just compensation, and (2) depriving a person of property without due process of law. This confusion has resulted in disparate results as well as in conflicting analysis. …
Takings Law—Is Inverse Condemnation An Appropriate Remedy For Due Process Violations?—San Diego Gas & Electric Co. V. City Of San Diego, 450 U.S. 621 (1981), Kim C. Pflueger
Washington Law Review
This Note first examines the Supreme Court cases that involve fifth amendment taking and fourteenth amendment due process challenges to land use regulations. Next, this Note discusses the meaning of Justice Brennan's proposals and their potential effect on land use planning and zoning. This Note suggests that overly restrictive zoning ordinances should not be viewed as a taking requiring just compensation. Instead these ordinances should be viewed as invalid exercises of the municipality's police power because of their failure to provide substantive due process to the landowner. The landowner's remedy should therefore be the invalidation of the ordinance, not just …
Washington's Zoning Vested Rights Doctrine, Fredrick D. Huebner
Washington's Zoning Vested Rights Doctrine, Fredrick D. Huebner
Washington Law Review
Part I of this comment reviews the judicial analysis underlying the Washington doctrine, and outlines the elements and scope of the vesting rule. Part II analyzes the Mercer decision and questions whether that decision promotes the purposes of the Washington doctrine in the PUD zoning context. This comment contends that the Mercer court's rule for vesting rights to develop land on the basis of incomplete building permit applications fails to consider important public policy interests. In conclusion, Part III proposes a modified vesting rule that addresses the problems inherent in the Mercer decision.
In Search Of Price And Service Competition In Residential Real Estate Brokerage: Breaking The Cartel, William C. Erxleben
In Search Of Price And Service Competition In Residential Real Estate Brokerage: Breaking The Cartel, William C. Erxleben
Washington Law Review
This article explores opportunities for price and service competition in residential real estate brokerage. It is designed to give an overview of both the problem and some promising solutions. The article details the home purchase transaction, reviews the market structure of the industry, identifies the trade restraints inhibiting competition, and prescribes comprehensive antitrust remedies to induce greater competition.
Zoning—Judicial Enforcement Of The Duty To Serve The Regional Welfare In Zoning Decisions—Save V. City Of Bothell, 89 Wn. 2d 862, 576 P.2d 401 (1978), Michael H. Rorick
Zoning—Judicial Enforcement Of The Duty To Serve The Regional Welfare In Zoning Decisions—Save V. City Of Bothell, 89 Wn. 2d 862, 576 P.2d 401 (1978), Michael H. Rorick
Washington Law Review
After briefly noting the background of relevant Washington law, Part I of this note analyzes the SAVE court's reasoning to reveal indications of an underlying interventionism in its review of the rezone. Part II assesses the problems of such judicial intervention, first in the exclusionary zoning cases relied upon by the SAVE court for its regional welfare standard, and then in the context of zoning actions with the kind of extralocal environmental impacts presented by SAVE. Finally, arguments favoring increased judicial intervention are presented. The note concludes that there are both practical and doctrinal justifications for heightened judicial scrutiny of …
Zoning—Rezones: New Standards For Governing Bodies—Parkridge V. City Of Seattle, 89 Wn. 2d 454, 573 P.2d 359 (1978), Alice L. Hearst
Zoning—Rezones: New Standards For Governing Bodies—Parkridge V. City Of Seattle, 89 Wn. 2d 454, 573 P.2d 359 (1978), Alice L. Hearst
Washington Law Review
This note examines four aspects of rezoning decisions addressed by the Parkridge court: the policy basis upon which rezoning actions may legitimately be grounded; the quantum of evidence necessary to support a rezoning decision;" the allocation of the burden of proof in rezoning actions; and the presumption of validity, if any, accorded local rezoning decisions.
Historic Preservation—Transferable Development Rights As Mitigation Rather Than Just Compensation—Penn Central Transportation Co. V. New York City, 438 U.S. 104 (1978), Douglas L. Batey
Washington Law Review
Plaintiff was prevented by the New York City Landmarks Preservation Law from erecting a multi-story office building above Grand Central Railroad Terminal. Plaintiff was not compensated, but was allowed to transfer the Terminal's unused development rights to other sites. The trial court found this restriction unconstitutional unless "just compensation" was provided, and granted injunctive and declaratory relief. The New York Supreme Court, Appellate Division, reversed, finding that Penn Central, the plaintiff, had not been unconstitutionally deprived of its property. This decision was affirmed by the New York Court of Appeals. In a six to three decision, the United States Supreme …