Property Law and Real Estate Commons^™

Regulatory Takings And Ripeness In The Federal Courts, Gregory M. Stein

Vanderbilt Law Review

The Supreme Court held in 1987 that compensation is required automatically whenever a municipality takes property by regulation. The Court has also held repeatedly that federal courts cannot even hear such claims until the landowner meets a demanding ripeness test. Landowners are often unable to survive the protracted ripening period even though their claims might ultimately have proved to be valid. And the occasional municipality that loses a takings case may be liable for a huge award that reflects the lengthy ripening period. Federal courts have persistently refused to acknowledge this tension between takings law and takings procedure.

This Article …

Book Review--Global Dimensions Of Intellectual Property Rights In Science And Technology, Mark J. Patterson

Vanderbilt Journal of Transnational Law

A complete reading of the book leaves open the question of for whom the book is primarily intended. The best answer perhaps is that it has something to offer everyone--lawyer, scientist, intellectual property owner, economist, and politician--having an intellectual curiosity in how global intellectual property systems can and should evolve. From an individual reader's perspective, a cover to cover study of the book may leave the reader feeling overwhelmed and unsatisfied. However, if viewed as a resource, from which portions applicable to the reader's own field of interest are selected for close examination, the book has much to offer. Fortunately, …

"Pssst, Hey Buddy, Wanna Buy A Country?" An Economic And Political Policy Analysis Of Federal And State Laws Governing Foreign Ownership Of United States Real Estate, James R. Mason, Jr.

Vanderbilt Journal of Transnational Law

This Note surveys the complex scheme of federal and state laws addressing foreign ownership of United States real property that has developed over the course of the last two centuries, precipitated by several important events. The Note then critically analyzes the traditionally invoked economic and policy Justifications for regulating alien land ownership. The author concludes that sound economic principles militate against rather than in support of such regulation and that policy justifications, although representing valid concerns in some cases, have been used to produce overbroad regulations. The author suggests, therefore, a rethinking of the United States approach to alien land …

The Commercial Real Estate Laws Of The People's Republic Of China And Shenzhen: An Overview, David S. Kerzner

Vanderbilt Journal of Transnational Law

This Article surveys the changes in real estate laws that have occurred in China since 1980. It provides a comprehensive and specific overview of the foreign investment process, which should prove particularly useful to United States investors. The Article first provides general background on the evolution of Chinese real estate law, focusing on the granting and subsequent alienation of land use rights, as well as the recent development in the area of large parcels of land. The Article then examines the current state of real estate law in Guangdong Province, specifically in Shenzhen, and explains details such as transfer and …

"Property" In The Fifth Amendment: A Quest For Common Ground In The Maze Of Regulatory Takings, David C. Buck

Vanderbilt Law Review

In 1922, the Supreme Court embarked on its first decision to protect property owners from unbridled, uncompensated government regulation. Prior to Pennsylvania Coal Co. v. Mahon, the courts applied the Just Compensation Clause of the Fifth Amendments only to "'direct appropriation[s]' of property ... or the functional equivalent of a 'practical ouster of [the owner's] possession.' " Mahon established that governmental regulation that affects an owner's use of his land may constitute a taking under the Fifth Amendment. In Mahon, Justice Holmes recognized the need for constitutional limits on the government's power to impair certain rights inherent in the ownership …

The Legal Framework For Private Sector Activity In The Czech Republic, Cheryl W. Gray

Vanderbilt Journal of Transnational Law

In this Article, Dr. Gray discusses the evolving legal framework in the Czech Republic as the government there moves from a socialist to a private market economy. The author traces the major legal developments, including the Republic's establishment of significant private property rights and of a modern commercial code. The author finds that the Republic has made significant strides in developing a private market economy and in facilitating foreign investment. Dr. Gray concludes, however, that the new laws face significant challenges, including a weak and immature judicial system and problems with addressing business failures.

Taxing Gains At Death, Lawrence Zelenak

Vanderbilt Law Review

No abstract provided.

Closing The Book On The School Trust Lands, C. Maison Heidelberg

Vanderbilt Law Review

Public education in the United States faces a crisis. Financially strapped state and local governments find funding more and more difficult to supply; as a result, the quality of public education suffers. Predictably citizens are concerned, yet they resist paying increased taxes to meet the rising costs.

School trust lands provide one potential source of extra revenue. Though their existence is not well known, these lands are tremendous assets held by most states other than the original thirteen. In general, they have produced significant amounts of revenue for public education, yet historically state management of the lands has been marred …

Privatization In Germany: A Model For Legal And Functional Analysis, Martin E. Elling

Vanderbilt Journal of Transnational Law

In this Article, Mr. Elling discusses the efforts to restructure and privatize the eastern German economy. The Article focuses on the work of the Trust Agency, or Treuhandanstalt, the agency primary responsible for privatizing property expropriated by the Nazis, the Soviet occupation forces, and the German Democratic Republic. These three regimes expropriated property under varying circumstances, and the Trust Agency now faces the task of determining the appropriate level of compensation or restitution for each property claimant. While the Trust Agency is concerned with awarding just compensation to the rightful property owners, the author notes that Germany designed the privatization …

Property And Liberty Reconsidered, Herman Belz

Vanderbilt Law Review

This perceptive, lucid, and sympathetic account of property rights in American constitutional law by Professor James W. Ely, Jr., is further evidence of the conservative challenge to liberal orthodoxy that has emerged in recent years in American historiography. That the book appears under the cosponsorship of the Organization of American Historians, one of the more militantly liberal scholarly associations in the United States, is a small but significant sign of the changing intellectual climate.

As conceived of in contemporary liberal historiography, protection of individual property rights is but one element of economic liberty. Equally if not more important, according to …

International Space Law: Into The Twenty-First Century, Glenn H. Reynolds

Vanderbilt Journal of Transnational Law

In this Article, Professor Reynolds addresses the space law issues likely to be of most importance in the next several decades. Pressing issues include those of orbital debris and geostationary orbit crowding, private property rights in outer space resources, conflict over international trade in space goods and services, the danger of ballistic-missile technology proliferation, private remote-sensing systems, and the law of international cooperation in space. Professor Reynolds concludes with a philosophical and practical discussion of some more remote issues, including the legal systems that may govern future human societies in outer space and the legal issues that might be associated …

Choice Of Law And Succession To Wealth: A Critical Analysis Of The Ramifications Of The Hague Convention On Succession To Decedents' Estates, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons' is an exceptionally complex document with the avowed purpose of radically altering the choice of law rules in the succession field that have traditionally guided all common law jurisdictions as well as many civil law regimes. To date, the conflicts revolution that has engulfed other fields of law such as contracts and torts has barely intruded into the realm of property and succession law. In large part, this has been attributable to the nearly absolute adherence of judges and legislators to the relatively simple, straightforward …

Refining The Itemized Deduction For Home Property Tax Payments, J. B. Mccombs

Vanderbilt Law Review

By enacting a $1 million debt limit for deductible home mortgage interest in 1987,' Congress opened the way for a fresh inquiry into the home property tax deduction. Adoption of that debt limit reflects a major change in policy-a re-evaluation of the benefits and costs of subsidies to luxury housing.

At first glance a $1 million limit seems ridiculously high if the debt ceiling reflects a decision to stop subsidizing luxury housing. The debt ceiling, however, does not contain an inflation adjustment provision. Because such provisions are common in the Internal Revenue Code, the absence here must be by conscious …

A Capital Tax System To Preserve America's Heritage, Valerie M. Fogleman

Vanderbilt Journal of Transnational Law

This Article looks to the British national heritage capital tax system as a model to propose provisions in the United States Internal Revenue Code to aid in preserving the United States cultural and natural heritage. After an overview of the capital tax systems in Britain and the United States, Ms. Fogleman examines features of the British tax system that promote preservation of the national heritage. The British system conditionally exempts the owners of national heritage assets from estate or gift tax liability on the transfer of those assets in exchange for permitting public access to and maintaining the assets; allows …

Property Damage Claims Against The Customs Service: Are There Adequate Remedies?, Ronald L. Cornell

Vanderbilt Journal of Transnational Law

This Note explores the availability of adequate property damage remedies following the United States Supreme Court's decision in Kosak v.United States, denying property owners the right to recover under the Federal Tort Claims Act (FTCA)." The Note also proposes several alternative remedies, including judicial adjustments to claims brought under the Tucker Act' and fifth amendment "takings" clause,, tort claims against individual customs officials, and legislative adjustments to the administrative settlement process under the Small Claims Act." Part II of this Note traces the judicial treatment of property damage claims brought against the United States Government under the FTCA, as well …

The Law Of Easements And Licenses In Land: Book Review, R. H. Helmholz

Vanderbilt Law Review

A distinguished commentator, Professor A.W.B. Simpson, recently observed that the legal treatise seems to be going the way of the dinosaur and the dodo bird.' To him, and indeed to other thoughtful ob-servers, the treatise's characteristic form appears to have outlived its natural span, or at least lost its reason for existence among serious academic writers. The treatise's focus on a particular and specialized area of the law and its inevitable concentration on the doctrinal analysis of appellate cases now appear quite out of date to these observers, something perhaps worthwhile in a simpler and more complacent era, but which …

The Unwarranted Implication Of A Warranty Of Fitness In Commercial Leases-An Alternative Approach, Fred W. Bopp, Iii

Vanderbilt Law Review

The classical landlord-tenant relationship has undergone a substantial transformation since its origin in feudal England. The most recent and far-reaching change has been the emergence of an implied warranty of habitability in residential leases.' An overwhelming majority of jurisdictions recognizes this implied warranty either by statute or judicial decisions or both. These same jurisdictions, however, uniformly have rejected an extension of the underlying rationale to the commercial setting by refusing to imply an analogous warranty of fitness or suitability in nonresidential leases. Consequently, while modern notions of consumer protection have made rapid advances in residential tenancies, commercial lease law continues …

Freeing Mortgages Of Merger, Ann M. Burkhart

Vanderbilt Law Review

Change in real property law often occurs with glacial speed.This rate of change in part reflects the normal inertia of established law. A more complete explanation, however, is the innate conservatism connected to a commodity that once was the primary source of wealth and power. That this conservatism is innate should not prevent application of Ockham's razor as needed. The relationship of the doctrine of merger to the burgeoning law of mortgages is one such area. "If the law has to bear these medieval shackles the time surely has come to examine them carefully. They may have rusted away."

The …

Mining With Mr. Justice Holmes, E. F. Roberts

Vanderbilt Law Review

All of us are probably familiar with the notion that the owner of mineral rights may owe some duty of care to support the owner of the fee in his or her surface use of the land. This principle results in a binary system (the surface estate and the right of sup-port) that can be treated easily in tort law. In Pennsylvania the coal companies had owned vast areas of land. The companies had sold much of this land, reserving not only the coal, but "the right to. ..remove the same without incurring in any way liability for any damage …

Jurisdiction Over Foreign Governments, Melissa L. Werthan, Nancie L. Combs, Jeffrey L. Deitch, Anita L. Fuoss

Vanderbilt Journal of Transnational Law

Passage of the FSIA in 1976 codified the restrictive theory of sovereign immunity, which provides that a foreign state will re-main immune from suit for its public acts but will lose immunity for its private and commercial acts. By placing the determination of a foreign government's immunity in the hands of the judiciary, Congress attempted to standardize an area of the law that had been governed by political relations between the United States and foreign governments.

The FSIA is the exclusive mechanism through which private parties can seek redress against foreign governments in United States courts. The Act provides a …

The Easement In Gross Revisited: Transferability And Divisibility Since 1945, Alan D. Hegi

Vanderbilt Law Review

Courts have disagreed about the nature, obligations, and privileges that accompany the easement in gross. Generally, an easement is an interest in land which gives the easement holder the right to use that land for a specific purpose, free from the will of the landowner. An easement is in gross when the benefit from the use of another's land inures to the easement holder personally, rather than to the holder's land. The land that is subject to the holder's right of use is the servient tenement. Courts agree on these basic principles of an easement in gross, but have disagreed …

Fraudulent Conveyance Law And Its Proper Domain, Douglas G. Baird, Thomas H. Jackson

Vanderbilt Law Review

In 1571 Parliament passed a statute making illegal and void any transfer made for the purpose of hindering, delaying, or defrauding creditors.' This law, commonly known as the Statute of Elizabeth, was intended to curb what was thought to be a wide-spread abuse. Until the seventeenth century, England had certain sanctuaries into which the King's writ could not enter. A sanctuary was not merely the interior of a church, but certain precincts defined by custom or royal grant. Debtors could take sanctuary in one of these precincts, live in relative comfort, and be immune from execution by their creditors. It …

Landlord Liability For Crimes Committed By Third Parties Against Tenants On The Premises, Irma W. Merrill

Vanderbilt Law Review

The controversial subject of landlord liability for crimes committed by third parties on the apartment premises has been the subject of much debate. The discussion has produced a scattering of opinions rather than one settled rule. Not all jurisdictions agree that a landlord should be held liable to his tenants for crimes on the premises. Even jurisdictions that do hold landlords liable for such crimes disagree on the basis for liability. Some courts ground their decisions in contract. Other courts conjure landlord liability out of an implied warranty of habitability. Still other courts impose landlord liability for third party crimes …

Modern Property Law: Cases And Materials, Dale A. Whitman

Vanderbilt Law Review

Most book reviews attempt to analyze the subject matter of the book under review. Casebooks, however, serve different purposes than other books; they are teaching tools that are useful only in the hands of an effective teacher. The editors of Modern Property Law are law teachers, and so am I. The purpose of this book review is to offer, as a professor of law, a personal view of this property casebook and to consider how it would function in the classroom. I have not yet used the book in my own property course because at the time of this writing …

Perspectives On Foreign Investment In The Southeastern United States: An Introduction, Harold V. Morgan, Jr.

Vanderbilt Journal of Transnational Law

International practice in the Southeast is primarily divided between representation of industrial and business investors and representation of real estate investors. In both cases, the legal skills required are those necessary to represent domestic clients engaged in the same activities, with an overlay of specialized expertise. For example, closing a real estate purchase on behalf of a foreign purchaser involves the same elements of real estate practice as any domestic purchase and sale. If the purchaser is foreign, however, the lawyer must consider the applicability of tax treaties, Internal Revenue Code provisions governing repatriation of real estate income, various state …

United States Investment In Ireland, Eugene P. Fanning

Vanderbilt Journal of Transnational Law

This Article will examine in general the structure of the Irish Government relating to foreign investment, and describe the role of the government agencies that provide incentives for foreign direct investments. The Article will focus on the negotiation process between those government agencies and foreign investors, and examine the typical investment contract entered into by United States investors. The Article will also describe some important aspects of the typical forms of direct investment in Ireland: manufacturing, service industry, and joint venture investments. This Article will examine the concept of tax-advantaged lending in Ireland, Ireland's foreign exchange control regulations, and its …

Book Received, Law Library Staff

Vanderbilt Journal of Transnational Law

Books Received

Aspects of the International Banking Safety Net

By G.G. Johnson, with Richard K. Abrams

Washington, D.C.: International Monetary Fund, 1983. Pp. v, 36. $5.00

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The Soviet Viewpoint

By Georgi Arbatov and Willem Oltmans

New York: Dodd, Mead, 1983. Pp. xviii, 219. $13.95

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The Law of Corporate Groups: Procedural Problems in the Law of Parent and Subsidiary Corporations

By Phillip I. Blumberg

Boston and Toronto: Little, Brown and Company, 1983. Pp. xxxii, 527. $65.00

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Iraq & Iran: Roots of Conflict

By Tareq Y. Ismael

Syracuse: Syracuse University Press, 1982. Pp. xii, 226. $24.00 cloth; $12.95 paper …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

EMPLOYEE WHO SPENDS "SOME PORTION OF WORK TIME IN MARITIME ACTIVITIES" IS AN "EMPLOYEE" COVERED BY THE LONGSHOREMEN'S AND WORKERS' COMPENSATION ACT-Schwabenland v.Sanger Boats, 683 F.2d 309 (9th Cir. 1982)

UNITED STATES CARRIAGE OF GOODS BY SEA ACT EXEMPTS DEFENDANT FROM LIABILITY FOR SHIP DAMAGE INCURRED WHILE DISCHARGING CARGO--Seven Seas Transportation Ltd. v. Pacifico Union Marina Corp. [1982] 2 Lloyd's L.R. 465

IMMIGRATION AND NATURALIZATION SERVICE DISTRICT DIRECTOR IS ENTITLED TO BROAD DISCRETION IN WEIGHING CRITERIA FOR PAROLE DETERMINATION OF UNADMITTED ALIENS--Bertrand v. Sava,684 F.2d 204 (2d Cir. 1982)

THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT DOES NOT APPLY TO …

Due-On-Sale Clauses: Separating Social Interests From Individual Interests, Joseph Gibson, Iii

Vanderbilt Law Review

This Note suggests that courts have failed to articulate properly the relation of the due-on-sale clause to the legal doctrines under which it has been challenged. In particular, courts that have considered the clauses to be restraints on alienation have concentrated on the impact of enforcement or nonenforcement on the borrower, and have ignored almost completely the social interest in the free transferability of land, which has been the traditional rationale for the rule against restraints. Likewise, courts that have considered due-on-sale clauses under equitable principles frequently have failed to articulate whether the inequity arises from an attempt by one …

Constitutional Limitations On Governmental Participation In Downtown Development Projects, David M. Lawrence

Vanderbilt Law Review

The purpose of this Article is to investigate the constitutional boundaries that surround the most common forms of governmental participation. Part II of the Article discusses the constitutional limitations on property transactions in which the government either uses its power of eminent domain to condemn land for private downtown development, acquires land for the same purpose through a voluntary sale by the owner of the land, or subsidizes private development by its method of conveying property to the developer. Part III of the Article then discusses the problems that arise when a downtown project includes both public and private facilities, …