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Articles 31 - 60 of 154
Full-Text Articles in Property Law and Real Estate
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 …
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 …
Special Estate Tax Valuation Of Farmland And The Emergence Of A Landholding Elite Class, Roland L. Hjorth
Special Estate Tax Valuation Of Farmland And The Emergence Of A Landholding Elite Class, Roland L. Hjorth
Washington Law Review
Examines Internal Revenue Code provisions on farmland as an inheritable asset, including those provisions that offer substantial tax savings.
Property—Community Property And Joint Tenancy: Creating Surviorship Rights In Washington—In Re Estate Of Olson, 87 Wn. 2d 855, 577 P.2d 302 (1976), Bruce Lamka
Washington Law Review
This note presents two analyses of the Olson decision. Under the first analysis, the amended Initiative is interpreted to require a writing executed by the marital community in order to convert property from community to joint tenancy ownership. It is argued that this interpretation is unreasonable and will produce an unsatisfactory result in some cases. The second analysis is based on community property law: both spouses must participate in the change of ownership because the property rights of both are affected. This reasoning better supports the Olson decision. It was incompletely developed in the opinion, however, because the court did …
Balancing Private Loss Against Public Gain To Test For A Violation Of Due Process Or A Taking Without Just Compensation, Jeffrey T. Haley
Balancing Private Loss Against Public Gain To Test For A Violation Of Due Process Or A Taking Without Just Compensation, Jeffrey T. Haley
Washington Law Review
The first part of this comment examines the test of balancing private loss against public gain to establish the conceptual basis for analyzing its proper uses. The test is shown to require that land use regulations serve the general welfare and that the public benefits alone, without consideration of incidental private benefits, be sufficient to justify the burdens placed on private property. Part II presents the essential characteristics of the due process and taking without compensation limitations as they have been construed by the United States Supreme Court and developed by other courts and commentators. It is shown that the …
Good Sports And Bad Lands: The Application Of Washington's Recreational Use Statute Limiting Landowner Liability, John C. Barrett
Good Sports And Bad Lands: The Application Of Washington's Recreational Use Statute Limiting Landowner Liability, John C. Barrett
Washington Law Review
No abstract provided.
Running Covenants: An Analytical Primer, William B. Stoebuck
Running Covenants: An Analytical Primer, William B. Stoebuck
Washington Law Review
Save for the subject of perpetuities (and arguably even including it), there is no subject encountered by law students in their basic property courses that so baffles them as does running covenants. But there seems to be no concise writing that lays out the subject of running covenants in a nutshell. It is not that nothing has been written on the subject, for much has been published this century on it and continues to be. The problem is that the writings deal with smaller or greater portions of the overall field. There are articles on real covenants, on equitable restrictions, …
Constitutional Law—Eminent Domain—Just Compensation For A Lessee's Renewal Expectation—Almota Farmers Elevator & Warehouse Co. V. United States, 409 U.S. 470 (1973), Mark W. Pennak
Washington Law Review
The district court accepted Almota's theory of valuation, but was reversed by the Court of Appeals for the Ninth Circuit. The Supreme Court reinstated the district court's judgment. Held: Just compensation for a leasehold bearing improvements owned by the lessee is measured by what a willing buyer would pay to a willing seller for the leasehold, taking into account the possibility of renewal. Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470 (1973).
Regulation Of Real Estate Syndications: An Overview, Stephen B. Hazard
Regulation Of Real Estate Syndications: An Overview, Stephen B. Hazard
Washington Law Review
This comment will attempt to make some sense out of the controversy raging around real estate syndications and will attempt to determine what, if anything, should be done to regulate them. First, the mechanism of the real estate syndication and the specific problems it poses for the investor will be briefly examined. Second, the existing legal framework including restrictions imposed on real estate syndications by common law partnership and state and federal securities laws will be examined to determine whether the investor is adequately protected. Third, various proposed regulatory schemes will be examined, including the SEC's proposals for new disclosure …
Due Process And Deeds Of Trust—Strange Bedfellows?, David A. Leen, Peter A. Galbraith, John Gant
Due Process And Deeds Of Trust—Strange Bedfellows?, David A. Leen, Peter A. Galbraith, John Gant
Washington Law Review
The authors examine in detail the validity of the private sale provisions of the Washington Deed of Trust Act in light of the recent procedural due process decisions of the United States Supreme Court. In addition to concluding that the present Washington Act appears to be unconstitutional, the authors briefly discuss the policy considerations involved and suggest general guidelines for change.