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Fordham Urban Law Journal

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Full-Text Articles in Property Law and Real Estate

Suburbanization And Market Failure: An Analysis Of Government Policies Promoting Suburban Growth And Ethnic Assimilation, William E. Nelson, Norman R. Williams Jan 1999

Suburbanization And Market Failure: An Analysis Of Government Policies Promoting Suburban Growth And Ethnic Assimilation, William E. Nelson, Norman R. Williams

Fordham Urban Law Journal

This article addresses the social history of suburbanization in America in the twentieth century by analyzing the relationship between government policy and suburbanization through a study of Nassau County, New York. In Part I, the authors compare examinations of the suburban housing market between 1920 and 1940 and post-World War II. Whereas the former was characterized by high mortgage foreclosure rates preventing land owners and builders from selling their property, the low mortgage foreclosure rates post-World War III advanced suburbanization. In Part II, the authors turn their focus to Nassau County’s transportation infrastructure and the insignificant impact it had on …

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"Reasonable Accommodation" Under The Federal Fair Housing Amendments Act, Robert L. Schonfeld Jan 1998

"Reasonable Accommodation" Under The Federal Fair Housing Amendments Act, Robert L. Schonfeld

Fordham Urban Law Journal

This article reviews the legislative history and case law of the Fair Housing Act. It reviews the elements of a claim for reasonable accommodations for persons with disabilities under the FHA. It argues that some courts have incorrectly interpreted the statute restrictively defying the intentions of the drafters of the statute.

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Protecting Property Rights With Strict Scrutiny: An Argument For The "Specifically And Uniquely Attributable" Standard , Daniel Williams Russo Jan 1998

Protecting Property Rights With Strict Scrutiny: An Argument For The "Specifically And Uniquely Attributable" Standard , Daniel Williams Russo

Fordham Urban Law Journal

This article analyzes three levels of scrutiny states have applied to regulatory takings cases. These include 'judicial deterrence", "rational nexus", and "specifically and uniquely attributable". The author argues that the first two standards are inefficient and concludes in favor of the "specifically and uniquely attributable" standard.

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An Egalitarian's Market: The Economics Of Inclusionary Zoning Reclaimed, Andrew G. Dietderich Jan 1996

An Egalitarian's Market: The Economics Of Inclusionary Zoning Reclaimed, Andrew G. Dietderich

Fordham Urban Law Journal

This article discusses the economic effects of residential zoning, and how zoning might be used to create more affordable housing for the poor in America. The author explains the three legal regimes of inclusionary zoning, namely, voluntary inclusion programs, mandatory set-asides with density bonuses, and mandatory set-asides without density bonuses. While he offers no advice on how to implement any of the three regimes, he notes that the choice between the pure buyer's remedy and an inclusionary program with set asides depends on the buying power of the target population. Based on the economic situation of that target population, a …

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Zoning Adult Establishments In New York: A Defense Of The Adult-Use Zoning Text Amendments Of 1995, James E. Berger Jan 1996

Zoning Adult Establishments In New York: A Defense Of The Adult-Use Zoning Text Amendments Of 1995, James E. Berger

Fordham Urban Law Journal

This article examines New York City's first attempt to regulate adult entertainment establishments through zoning provisions. Specifically, it discusses whether the adult-use zoning provisions comply with federal and state constitutional requirements, and it examines whether the adult-use amendments would cause a reduction in adult-use establishments in New York City, which would render the amendments constitutionally suspect, and whether its inclusion of topless bars renders the amendments overbroad. The author concludes that the adult-use amendments are consistent, with both federal and state constitutional requirements, and that the adult-use amendments will survive judicial scrutiny.

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Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor Jan 1995

Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor

Fordham Urban Law Journal

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford reviewed Dennis Coyle's book "Property Rights and the Constitution." Radford's theory relies on the idea that property rights deserve greater constitutional protection than they have received in the 60 years since the Supreme Court accepted the legitimacy of the regulatory state. This article reviews Radford's interpretation and criticism of Coyle's theory, analyzes Radford's theories in light of recent cases, and discussed the constitutional implications of Radford's analysis and how they relate to the economic regulations that they empower.

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Book Review, Land Use Regulation And Legal Rhetoric: Broadening The Terms Of Debate, R. S. Radford Jan 1994

Book Review, Land Use Regulation And Legal Rhetoric: Broadening The Terms Of Debate, R. S. Radford

Fordham Urban Law Journal

Dennis Coyle’s new book, Property Rights and the Constitution, is an important addition to the ongoing debate over the constitutional status of private property. Coyle selectively reviews important land use cases decided by the United States Supreme Court and various states in the post-New Deal era. More importantly, Coyle provides an ideological framework that illuminates several key strands in the constitutional jurisprudence of property law. Coyle traces the ebb and flow of competing attitudes toward property rights and regulation in a way that makes sense of the sometimes chaotic body of case law in this field. In the process, he …

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County Powers In Assisted Housing Programs: The Constitutional Limits In New York, John P. Dellera Jan 1993

County Powers In Assisted Housing Programs: The Constitutional Limits In New York, John P. Dellera

Fordham Urban Law Journal

With the exception of facilities set aside for people who cannot live independently, the law has historically given counties in New York State little or no role in addressing housing issues, with decisions being left to private enterprise, municipalities, and public corporations. Proposals are thus regularly advanced to grant powers to county governments to initiate their own housing programs. In 1992, the Attorney General of New York State issued an opinion that departs form previous opinions of his office and invites greater county involvement in low-cost housing. This article argues that under New York law, the role of municipalities is …

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The Community Reinvestment Act: Good Intentions Headed In The Wrong Direction, Lawrence J. White Jan 1993

The Community Reinvestment Act: Good Intentions Headed In The Wrong Direction, Lawrence J. White

Fordham Urban Law Journal

The Community Reinvestment Act of 1977 (“CRA” or “the Act”) places an obligation on commercial banks and savings and loan associations (“S&Ls”) and savings banks (together with S&Ls, frequently described as “thrifts”) to meet the credit needs of the local communities in which they are chartered consistent with the safe and sound operation of such institutions. The Act offers no greater precision for these phrases, and the task of fleshing them out and enforcing them has been left to the bank and thrift regulatory agencies. This article argues that the CRA approach is fundamentally flawed. It is either redundant (because …

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A Guide To Enforcing The Community Reinvestment Act, Richard Marisco Jan 1993

A Guide To Enforcing The Community Reinvestment Act, Richard Marisco

Fordham Urban Law Journal

The Community Reinvestment Act (“CRA”) represents a continuing, affirmative obligation on banks to meet the credit needs of their communities — including low and moderate income neighborhoods — by providing appropriate credit products and deposit services. Federal regulators have been hesitant to enforce the CRA aggressively, and community based organizations (“CBO’s”) have taken the lead in using the CRA to improve bank lending in low and moderate income communities. A combination of recent legislation and social developments ensure an increase in the CBO’s CRA enforcement activity. This Guide’s purpose is twofold. The first is to catalogue and analyze the decisions, …

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The Community Reinvestment Act After Fifteen Years: It Works, But Strengthened Federal Enforcement Is Needed, Allen J. Fishbein Jan 1993

The Community Reinvestment Act After Fifteen Years: It Works, But Strengthened Federal Enforcement Is Needed, Allen J. Fishbein

Fordham Urban Law Journal

The Community Reinvestment Act (“CRA”) was adopted to curb redlining, the discriminatory mortgage lending practice whereby lenders refuse to make loans to certain geographic areas based on the racial or ethnic composition of those areas or the age of their housing stock. The law reflected Congressional judgment that lending institutions were overlooking important credit needs within their local communities and that the banking regulators’ efforts were inadequate to deter this neglect. Although the law was rarely enforced, some organized community groups made it work. Today’s climate of bank restructuring presents new challenges to making the law effective. Despite its apparent …

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Tenements And Takings: Tenement House Department Of New York V. Moeschen As A Counterpoint To Lochner V. New York, Judith A. Gilbert Jan 1991

Tenements And Takings: Tenement House Department Of New York V. Moeschen As A Counterpoint To Lochner V. New York, Judith A. Gilbert

Fordham Urban Law Journal

“The sharp rightward shift in land use law, and particularly in ‘takings’ jurisprudence, in the 1980s prompted anguished responses from advocates of government regulation who characterized the trend as a ‘return to the good old days of Locke and Lochner,’ ‘the Reagan Revolution's Lochnerian [r]eturn,’ ‘a revival of decisions like Lochner,’ ‘origins [in] the set of beliefs associated with the Lochner era,’ and ‘Back to the Future: From Nollan to Lochner.’ Critics were reacting in particular to an ominous alignment in the constitutional heavens: a constellation of United States Supreme Court decisions restricting the ability of state and local governments …

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Hud And Housing In The 1990s: Crises In Affordability And Accountability, Michael Allan Wolf Jan 1991

Hud And Housing In The 1990s: Crises In Affordability And Accountability, Michael Allan Wolf

Fordham Urban Law Journal

“Half a century ago, in the Housing Act of 1949, Congress declared optimistically that every American should have access to safe, decent, affordable housing.3 In an effort to realize that ambitious objective, federal lawmakers have devised and bureaucrats have implemented a wide array of housing schemes. One commentator has provided nine categories for what he deems the ‘bewildering variety of housing-related programs:’ 1. a federally regulated mortgage finance system; 2. mortgage insurance; 3. interest rate subsidies to home owners, developers, and landlords; 4. tax deductions for mortgage interest; 5. special depreciation allowances for rental housing; 6. low-rent public housing; 7. …

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Eviction Free Zones: The Economics Of Legal Bricolage In The Fight Against Displacement, Lawrence K. Kolodney Jan 1991

Eviction Free Zones: The Economics Of Legal Bricolage In The Fight Against Displacement, Lawrence K. Kolodney

Fordham Urban Law Journal

Gentrification, the influx of high-income dwellers into low-income neighborhoods, has in the past decade become a serious cause of concern to low-income tenants in older American cities. Although gentrification has had some positive effects, one important negative effect has been the displacement of existing neighborhood residents. Various schemes have been suggested to combat displacement caused by gentrification. One strategy entails seeking legislative relief in the form of rent control and condominium-conversion laws to directly curb the influx of high-income residents; another makes use of rent vouchers and public housing to ameliorate the effects of displacement. This Article analyzes an alternative …

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Hud And Housing In The 1990s: Crises In Affordability And Accountability, Michael Allan Wolf Jan 1991

Hud And Housing In The 1990s: Crises In Affordability And Accountability, Michael Allan Wolf

Fordham Urban Law Journal

“Half a century ago, in the Housing Act of 1949, Congress declared optimistically that every American should have access to safe, decent, affordable housing.3 In an effort to realize that ambitious objective, federal lawmakers have devised and bureaucrats have implemented a wide array of housing schemes. One commentator has provided nine categories for what he deems the ‘bewildering variety of housing-related programs:’ 1. a federally regulated mortgage finance system; 2. mortgage insurance; 3. interest rate subsidies to home owners, developers, and landlords; 4. tax deductions for mortgage interest; 5. special depreciation allowances for rental housing; 6. low-rent public housing; 7. …

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Eviction Free Zones: The Economics Of Legal Bricolage In The Fight Against Displacement, Lawrence K. Kolodney Jan 1991

Eviction Free Zones: The Economics Of Legal Bricolage In The Fight Against Displacement, Lawrence K. Kolodney

Fordham Urban Law Journal

Gentrification, the influx of high-income dwellers into low-income neighborhoods, has in the past decade become a serious cause of concern to low-income tenants in older American cities. Although gentrification has had some positive effects, one important negative effect has been the displacement of existing neighborhood residents. Various schemes have been suggested to combat displacement caused by gentrification. One strategy entails seeking legislative relief in the form of rent control and condominium-conversion laws to directly curb the influx of high-income residents; another makes use of rent vouchers and public housing to ameliorate the effects of displacement. This Article analyzes an alternative …

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Mitchell-Lama Buyouts: Policy Issues And Alternatives, David J. Sweet, John D. Hack Jan 1989

Mitchell-Lama Buyouts: Policy Issues And Alternatives, David J. Sweet, John D. Hack

Fordham Urban Law Journal

The Mitchell-Lama program, which provides loans to developers in exchange for those developers providing affordable housing, faces a serious problem as developers attempt to take advantage of a provision in the program that allows them to opt-out by repaying the government loans ahead of schedule. This creates a conflict between the developer and the tenants but also between the developer’s desire for maximizing profits and society’s desire to provide affordable housing. The author argues that simply preventing developers from leaving the program could violate the Contracts Clause as well as discourage future developers from participating in government programs. Rather, the …

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Timesharing And Realty Interests Under The Martin Act: Consumer Or Investor Protection?, Yvette C. Mendez Jan 1989

Timesharing And Realty Interests Under The Martin Act: Consumer Or Investor Protection?, Yvette C. Mendez

Fordham Urban Law Journal

This Note will explore the property interests created by timeshare licenses in New York, advocating that a participation interest in realty is created and that the Martin Act is applicable to these licenses. Part II discusses the interests created by timeshare licenses as they relate to the real property concepts of license and lease. Part III examines the provisions and purpose of the Martin Act and the application of the profit potential theory to define the realty interests requiring the Act's protection. Part IV advocates legislative and case law alternatives to the New York "profit potential" approach. As a case …

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Potential Liability For Misrepresentations In Residential Real Estate Transactions: Let The Broker Beware, Dawn K. Mcgee Jan 1988

Potential Liability For Misrepresentations In Residential Real Estate Transactions: Let The Broker Beware, Dawn K. Mcgee

Fordham Urban Law Journal

While the caveat emptor (buyer beware) theory has traditionally applied to real estate purchases, courts are continuously recognizing a brokers' duty to disclose. Some courts have found duty under an agent-principal relationship; others have found a duty as a matter of public policy, statutory language, ethics codes, or malpractice case law. Courts also differ on whether brokers have a duty to investigate the property and disclose defects. The author recognizes three issues of broker liability about which courts are divided: (1) the level of culpability required to find broker liability; (2) the basis of a real estate broker's duty to …

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Over-Stuffing The Envelope: The Problems With Creative Transfer Of Development Rights, Margaret Giordano Jan 1988

Over-Stuffing The Envelope: The Problems With Creative Transfer Of Development Rights, Margaret Giordano

Fordham Urban Law Journal

This note examines how not-for-profit institutions and private developers are engaging in innovative transactions pushing transferable development rights (TDRs) to new extremes. The Board of Estimate has created exceptions to its own zoning laws to benefit not-for-profits, for instance, by allowing transfer of unused development rights to previously impermissible distances. This note explores whether TDR transactions involving not-for-profit organizations have set precedents that will thwart traditional urban planning objectives. The note examines the history of TDRs and recent radical applications involving Grand Central Terminal, South Street Seaport, and Old Slip. The author ultimately balances the creative applications of TDRs with …

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Regulatory Taking: A Contract Approach, Ross B. Lipsker, Rebecca L. Heldt Jan 1988

Regulatory Taking: A Contract Approach, Ross B. Lipsker, Rebecca L. Heldt

Fordham Urban Law Journal

This Article begins by defining the parameters of the fifth amendment's taking clause. The Article then reviews the various tests used in determining whether governmental action constitutes a taking, and discusses the recent Supreme Court decisions within the framework of case law as it has evolved since the Court's 1922 landmark decision, Pennsylvania Coal Co. v. Mahon. Finally, the Article suggests a formula based on well-established contract principles for analyzing the impact of land use regulation on private property interests.

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"Warranty Of Security" In New York: A Landlord's Duty To Provide Security Precautions In Residential Buildings Under The Implied Warranty Of Habitability, Christine Hagan Jan 1988

"Warranty Of Security" In New York: A Landlord's Duty To Provide Security Precautions In Residential Buildings Under The Implied Warranty Of Habitability, Christine Hagan

Fordham Urban Law Journal

Although New York lower courts have held that security precautions are an essential element in making an apartment habitable, the New York Court of Appeals has not yet spoken on this issue. Therefore, in the absence of legislative clarification, the extent of security mandated under New York's warranty of habitability is uncertain. This Note examines the development of the warranty of habitability to include security precautions and discusses the status of a "warranty of security" in New York. The Note then proposes guidelines to determine whether a New York landlord has breached a duty to provide adequate security under section …

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New York Debates Commercial Rent Control: Designer Ice Cream Stores Versus The Corner Grocer, John J. Powers Jan 1987

New York Debates Commercial Rent Control: Designer Ice Cream Stores Versus The Corner Grocer, John J. Powers

Fordham Urban Law Journal

This Note will review the history of commercial rent regulation in New York City and examine existing commercial rent regulation proposals, both in terms of their underlying goals and their methods of operation. The Note will argue that, as a matter of general economic and public policy, the legislature should not enact commercial rent regulations. In light of these policy considerations, the Note will then examine specific conclusions of the Commission in its Final Report and its assessment of proposed strategies to deal with the problem related to the escalation of commercial rents for small businesses and neighborhood consumers in …

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Clearing The Air On Radon Testing: The Duty Of Real Estate Brokers To Protect Prospective Homebuyers, Sheldon Winicour Jan 1987

Clearing The Air On Radon Testing: The Duty Of Real Estate Brokers To Protect Prospective Homebuyers, Sheldon Winicour

Fordham Urban Law Journal

This Note recommends that the federal government create legislation that will impose a duty on real estate brokers to test homes for radon and to disclose the results to prospective purchasers. Based on a common law negligence theory, such a duty would become part of the current obligation of a real estate broker: (1) to conduct a reasonably diligent and competent search of property for sale; and (2) to disclose to prospective homebuyers all material defects affecting the value or desirability of the home. In his investigation, the broker must use the expertise and knowledge that derive from his training …

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A Common Law For The Statutory Era: The Right Of Publicity And New York's Right Of Privacy Statute, Frederick R. Kessler Jan 1987

A Common Law For The Statutory Era: The Right Of Publicity And New York's Right Of Privacy Statute, Frederick R. Kessler

Fordham Urban Law Journal

This note compares New York's privacy statute with the common law right of publicity. The article first traces the history of each law, then goes on to compare their effects. The author argues that exploitation of persona warrants judicial recognition of a common law right of publicity in New York, despite the argument that the creation of such a right should be left to the discretion of the legislature.

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Effects Of Legislation On The Reverse Annuity Mortgage As A Means Of Home Equity Control, Dorothy E. Cumby Jan 1985

Effects Of Legislation On The Reverse Annuity Mortgage As A Means Of Home Equity Control, Dorothy E. Cumby

Fordham Urban Law Journal

This student note explores the plight of elderly home-owners whose income cannot meet their expenses, and the federal legislation designed to meet their needs, specifically the Reverse Annuity Mortgage (RAM), which draws on home equity to provide monthly cash payments to homeowners. The author explains the legislation authorizing the RAM, describes the pros and cons of different forms of the RAM for elderly homeowners, and suggests modifications that will allow homeowners maximum support without sacrificing their other sources of income, such as Social Security payments and tax benefits. The author also explores New York state legislation dealing with the RAM, …

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Zoning New York City To Provide Low And Moderate Income Housing - Can Commercial Developers Be Made To Help?, Carl J. Rossi, Carl J. Rossi, Carl J. Rossi, Carl J. Rossi Jan 1984

Zoning New York City To Provide Low And Moderate Income Housing - Can Commercial Developers Be Made To Help?, Carl J. Rossi, Carl J. Rossi, Carl J. Rossi, Carl J. Rossi

Fordham Urban Law Journal

Lower income New York City residents are faced with a housing emergency. Concurrently, commercial and luxury residential development is expanding. New York is considering adopting an approach to the housing shortage which has been taken in several other cities. The plan advocates amendment of the City's zoning ordinance to require developers of commercial and luxury residential projects to provide the City with lower income housing units. This Note examines the proposed requirement that commercial developers provide lower income housing units. It addresses the question of the validity of such a requirement in the context of New York City's statutory authority …

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Sale-Leaseback Transactions By Tax-Exempt Entities And The Need For Congressional Guidelines, William L. Vallee, Jr., William L. Vallee, Jr., William L. Vallee, Jr., William L. Vallee, Jr. Jan 1984

Sale-Leaseback Transactions By Tax-Exempt Entities And The Need For Congressional Guidelines, William L. Vallee, Jr., William L. Vallee, Jr., William L. Vallee, Jr., William L. Vallee, Jr.

Fordham Urban Law Journal

This Note explores the use, mechanics, and financial and tax ramifications of sale-leaseback transactions, focusing on their growing use by tax-exempt entities and the concerns this use has created in Congress. This analysis demonstrates that these transactions do not pose the problems feared by Congress, the Treasury Department (IRS), and the current Administration. Furthermore, it will show that under most circumstances sale-leaseback transactions by tax-exempt entities, although causing a revenue loss, are a useful device for providing certain tax-exempt entities with the financial means to maintain services in the face of rising costs and the withdrawal of federal funding. Finally, …

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Preemption And State Anti-Redlining Regulations:, Marianne M. Jennings Jan 1983

Preemption And State Anti-Redlining Regulations:, Marianne M. Jennings

Fordham Urban Law Journal

This Article sets forth certain federal, state and municipal anti-redlining laws and discusses the conflicting decisions concerning the proper application of these laws. The need for clarification of federal and state roles in the anti-redlining field will eb set forth and recommendations for the most effective means by which to accomplish this goal are offered. Specifically, this Article asserts taht although federal legislation has preempted the area of disclosure procedures, federal financial institutions should be subject to state-enacted substantive anti-redlining laws.

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Rent Stabilization: New C.A.B. Rent Overcharge Procedures, William Weisner Jan 1983

Rent Stabilization: New C.A.B. Rent Overcharge Procedures, William Weisner

Fordham Urban Law Journal

In New York City, the Conciliation and Appeals Board (CAB) is a quasi-judicial body empowered by the Rent Stabilization Law (RSL) to resolve rent overcharge complaints. By September 1982, the CAB had a backlog of 7000 rent overcharge cases. In response to the backlog, the CAB promulgated new procedures for determining the maximum legal rent when owners fail to provide sufficient rent histories to the Board. This Note examines the CAB's new procedures in light of past enforcement policies and the CAB's powers under the RSL. The Note concludes that although the procedures accomplish de facto what the CAB might …

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