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Property Law and Real Estate Commons™

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2008

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Institution
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Articles 91 - 107 of 107

Full-Text Articles in Property Law and Real Estate

Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr. Jan 2008

Bringing Clarity To Title Clearing: Tax Foreclosure And Due Process In The Internet Age, James J. Kelly Jr.

Journal Articles

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of direct follow-up on returned notice mailings denied the addressee due process because the foreclosing party did not take steps that would be chosen by one desirous of actually informing the property owner. In subjecting …

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In Good Times And In Debt: The Evolution Of Marital Agency And The Meaning Of Marriage, Marie T. Reilly Jan 2008

In Good Times And In Debt: The Evolution Of Marital Agency And The Meaning Of Marriage, Marie T. Reilly

Faculty Scholarship

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable – the debtor directly and the spouse indirectly by imputed liability. Before married women’s property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse’s imputed liability for the debts of the other spouse. …

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"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett Jan 2008

"No Taking Without A Touching?" Questions From An Armchair Originalist, Nicole Stelle Garnett

Journal Articles

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided …

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Squeezing The Juice: The Failed Attempt To Acquire O.J. Simpson's Right Of Publicity, And Why It Should Have Succeeded, Tal Ganani Jan 2008

Squeezing The Juice: The Failed Attempt To Acquire O.J. Simpson's Right Of Publicity, And Why It Should Have Succeeded, Tal Ganani

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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Spectrum Policy Reform And The Next Frontier Of Property Rights, Philip J. Weiser, Dale N. Hatfield Jan 2008

Spectrum Policy Reform And The Next Frontier Of Property Rights, Philip J. Weiser, Dale N. Hatfield

Publications

The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for …

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Unbundling Property In Water, Sandra B. Zellmer, Jessica Harder Jan 2008

Unbundling Property In Water, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies. The quest for sustainable management has stimulated a movement for greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International …

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Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyamkrishna Balganesh Jan 2008

Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyamkrishna Balganesh

Faculty Scholarship

The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief – that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. Such a view attributes to the right a distinctively consequentialist meaning, …

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Land Assembly Districts, Michael A. Heller, Rick Hills Jan 2008

Land Assembly Districts, Michael A. Heller, Rick Hills

Faculty Scholarship

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and …

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Beyond The Torrens Mirror: A Framework Of The In Personam Exception To Indefeasibility, Hang Wu Tang Jan 2008

Beyond The Torrens Mirror: A Framework Of The In Personam Exception To Indefeasibility, Hang Wu Tang

Research Collection Yong Pung How School Of Law

One of the central tenets of the Torrens system is that the registered proprietor is conferred indefeasible title. Indefeasibility of title is subject to cm in personam exception. The content of the in personam exception to indefensibility has been a source of debute in many Torrens jurisdictions. The purpose of this article is to map out a theoretical structure to analyse the ambit of the in personam exception so as to provide a principled development of the law in this area. This article will also attempt to explain how this proposed theoretical structure of the in personam exception deals with …

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Real Property And Peoplehood, Kristen A. Carpenter Jan 2008

Real Property And Peoplehood, Kristen A. Carpenter

Publications

This Article proposes a theory of real property and peoplehood in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States …

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Whose Money Is It Anyway? The Case For A Mortality Discount For Cash Balance Plan Early Termination Lump Sum Distributions, William Handley Woolston Jan 2008

Whose Money Is It Anyway? The Case For A Mortality Discount For Cash Balance Plan Early Termination Lump Sum Distributions, William Handley Woolston

Student Award Winning Papers

No abstract provided.

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Owning The Center Of The Earth, John G. Sprankling Jan 2008

Owning The Center Of The Earth, John G. Sprankling

McGeorge School of Law Scholarly Articles

No abstract provided.

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"Goin' 'Round In Circles" ... And Letting The Bad Loans Win: When Subprime Lending Fails Borrowers: The Need For Uniform Broker Regulation, Cassandra Jones Havard Jan 2008

"Goin' 'Round In Circles" ... And Letting The Bad Loans Win: When Subprime Lending Fails Borrowers: The Need For Uniform Broker Regulation, Cassandra Jones Havard

All Faculty Scholarship

This Article provides a framework for regulating mortgage brokers. After introductory comments about the prevalence of this industry and its functional importance in today's consumer mortgage finance market, the article briefly explores the underlying structural framework of the mortgage broker industry. Explaining the market in which mortgage brokers make sub-prime loans as a largely unregulated one, it examines the economics of the mortgage loan transaction from the perspective of the borrower and concludes that lenders are comfortable with the reckless nature of sub-prime home lending. Next, the article examines the dual banking system and its attendant concern of federalism. It …

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The Federal Government's Implied Guarantee Of Fannie Mae And Freddie Mac's Obligations: Uncle Sam Will Pick Up The Tab, David Reiss Jan 2008

The Federal Government's Implied Guarantee Of Fannie Mae And Freddie Mac's Obligations: Uncle Sam Will Pick Up The Tab, David Reiss

Georgia Law Review

This Article provides the most comprehensive statutory analysis to date of the federal government's implied guarantee of Fannie Mae and Freddie Mac's financial obligations. Fannie and Freddie together have $4.45 trillion in mortgage- related obligations. The magnitude of their obligations can only be understood in comparison to the amount of outstanding U.S. government debt-$5.04 trillion. Given the ongoing meltdown of the residential mortgage market, it is important that the implied guarantee be understood for what it is, a contingent liability of the federal government. After explaining the nature of the implied guarantee and the risks that it poses, the Article …

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Constitutional Limitations On The Ability Of States To Rehabilitate Their Failed Electric Utility Restructuring Plans, James M. Van Nostrand Jan 2008

Constitutional Limitations On The Ability Of States To Rehabilitate Their Failed Electric Utility Restructuring Plans, James M. Van Nostrand

Seattle University Law Review

This Article will review the constitutional limitations that come into play when a state seeks to rehabilitate its failed electric utility restructuring plan. Under the Constitution, utilities are entitled to earn a reasonable return on the assets devoted to public service. A situation in which retail rates are frozen may result in denial of a compensatory return if the electric utility is incurring higher costs to generate or procure its power supply. This is the traditional "takings" argument based on the Fifth Amendment to the Constitution, as applied to the states under the Fourteenth Amendment. Apart from this commonly asserted …

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Negotiating The Mega-Rebuilding Deal At The World Trade: Adjacent Property Owners, Lance Liebman Jan 2008

Negotiating The Mega-Rebuilding Deal At The World Trade: Adjacent Property Owners, Lance Liebman

Faculty Scholarship

I will be very brief because I am a peripheral participant in this meeting. The company with which I am connected, Brookfield, owns property near the site. We were the third highest bidder to take over the World Trade Center in a deal that was completed in 2001. If our bid had been slightly higher and we had won the contract, then my experience would have been different. However, as it stands, I am peripheral participant. My primary connection is with Alex Garvin, my college classmate and friend for almost fifty years, and Meredith Kane, one of my favorite students. …

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Get Sick, Get Out: The Medical Causes Of Home Mortgage Foreclosures, Christopher Robertson, Richard Egelhof, Michael Hoke Jan 2008

Get Sick, Get Out: The Medical Causes Of Home Mortgage Foreclosures, Christopher Robertson, Richard Egelhof, Michael Hoke

Faculty Scholarship

In recent years, there has been national alarm about the rising rate of home foreclosures, which now strike one in every 92 households in America and which contribute to even broader macroeconomic effects. The "standard account" of home foreclosure attributes this spike to loose lending practices, irresponsible borrowers, a flat real estate market, and rising interest rates. Based on our study of homeowners going through foreclosures in four states, we find that the standard account fails to represent the facts and thus makes a poor guide for policy. In contrast, we find that half of all foreclosures have medical causes, …

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