Property Law and Real Estate Commons^™

Official Maps And The Regulatory Takings Problem: A Legislative Solution, Trent Andrews

BYU Law Review

No abstract provided.

Summary Of Holt V. Regional Trustee Services Corp., 127 Nev. Adv. Op. 80, Brandon C. Sendall

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order refusing to enjoin a lender from instituting a second foreclosure action after being denied a Foreclosure Mediation Program certificate in a prior foreclosure action.

Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, Diane E. Thompson

Washington Law Review

Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications. One reason foreclosures outpace modifications is that the mortgage-modification decision maker’s incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer’s main function is to collect and process payments from …

Real Property, Linda S. Finley

Mercer Law Review

The survey period, June 1, 2010 through May 31, 2011, saw continued dire economic times for Georgia and the entire United States, which were marked with a record-breaking number of foreclosures. Georgia courts and the Georgia General Assembly began to pay attention to the foreclosure process, the diminution of property values, and how these issues affect Georgia families. Although the purpose of this Article is not to specifically address these serious issues, judicial and legislative trends indicate that these issues will be around for some time.

The Public Pore Space: Enabling Carbon Capture And Sequestration By Reconceptualizing Subsurface Property Rights, James Robert Zadick

William & Mary Environmental Law and Policy Review

No abstract provided.

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to prevent the introduction and dissemination of …

Pluralism And Property, Gregory S. Alexander

Cornell Law Faculty Publications

Welfarism is no longer the only game in the town of property theory. In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These …

Property's Memories, Eduardo M. Peñalver

Cornell Law Faculty Publications

This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the …

No Room For Squatters: Alaska’S Adverse Possession Law, Jennie Morawetz

Alaska Law Review

In 2003, the Alaska Legislature dramatically changed Alaska’s adverse possession law. Alaska’s new law curtails the application of adverse possession in a way that is more stringent than any other state’s law. This Note summarizes Alaska’s adverse possession law prior to 2003 and discusses how it was changed in 2003 by the passage of Senate Bill 93. The Note then explores some implications of the new law: the ability to extinguish but not create private easements by prescription, the importance of recording, and the potential for a “good faith squatter” to lose land she believes is hers.

Property's Morale, Nestor M. Davidson

Michigan Law Review

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

Summary Of Chateau Vegas Wine, Inc. V. S. Wine & Spirits, 127 Nev. Adv. Op. 73, Richard A. Andrews

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order granting a permanent injunction in a business tort action.

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Unclaimed Property And Due Process: Justifying 'Revenue-Raising' Modern Escheat, Teagan J. Gregory

Michigan Law Review

States have long claimed the right to take custody of presumably abandoned property and hold it for the benefit of the true owner under the doctrine of escheat. In the face of increasing fiscal challenges, states have worked to increase their collection of unclaimed property via new escheat legislation that appears to bear little or no relation to protecting the interests of owners. Holders of unclaimed property have raised substantive due process challenges in response to these modern escheat statutes. This Note contends that two categories of these disputed laws-those shortening dormancy periods and those allowing states to estimate a …

Summary Of Walters V. Dist. Ct., 127 Nev. Adv. Op. 66, William Habdas

Nevada Supreme Court Summaries

The Court reviewed a petition for a writ of mandamus or prohibition. The issue was whether a counterclaim, cross-claim, and written motion setting the grounds for the application and the relief sought satisfied the requirements of NRS Chapter 40 for seeking a deficiency judgment upon a breach of guaranty.

Summary Of G.C. Wallace, Inc. V. Dist. Ct., 126 Nev. Adv. Op. 64, Alan Miller

Nevada Supreme Court Summaries

The Court examined a petition for a writ of mandamus challenging the district court's jurisdiction on grounds that a failure to raise the issue of damages in a summary eviction proceeding in justice court precluded a landlord from subsequently seeking damages in district court.

Community Collateral Damage: A Question Of Priorities, Andrea Boyack

Faculty Publications

Today’s soaring mortgage default rate and the uncertainty and delay associated with mortgage foreclosure proceedings threatens to cause financial tragedies of the commons in condominiums and homeowner associations across the country. Assessment defaults in privately governed communities result in an inequitable allocation of upkeep costs, and current law provides no way to prevent this spillover effect. But the collateral damages caused by delayed foreclosures and insufficient recoveries can be minimized by gradually increasing the priority position of the association lien.

In a majority of states, association liens are completely subordinate to the first mortgage lien. At foreclosure of the mortgage …

The People's Court, Kermit J. Lind

Law Faculty Articles and Essays

The Cleveland Housing Court adjudicates only one house and one owner at a time, while the investors and speculators in blighted properties operate in secret at high volume from a distance. However, the court's focus on housing code compliance and its (when needed) willingness to hand down strong measures is powerful. Even now, the City of Cleveland is implementing new strategic code compliance measures in partnership with neighborhood-based community development corporations, to the point where there is less profit in owning worthless houses in Cleveland, and the court is redirecting the disposal of low-value foreclosed houses to local land banks …

Property Law—Homestead Exemption—A Beneficiary Interest Can Support A Homestead Exemption In Arkansas And A Look At Other Interests Sufficient To Support A Homestead Exemption. Fitton V. Bank Of Little Rock, 2010 Ark. 280, __ S.W.3d __., Seth Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

Deed Covenants Of Title And The Preparation Of Deeds: Theory, Law, And Practice In Arkansas, Lynn Foster, J. Cliff Mckinney Ii

University of Arkansas at Little Rock Law Review

No abstract provided.

Series Llcs In Real Estate Transactions, Bradley T. Borden, Mathews Vattamala

Faculty Scholarship

No abstract provided.

Two Faces: Demystifying The Mortgage Electronic Registration System's Land Title Theory, Christopher L. Peterson

William & Mary Law Review

In the mid-1990s, mortgage bankers created Mortgage Electronic Registration Systems, Inc. (MERS) to escape the costs associated with recording mortgage transfers. To accomplish this, lenders permanently list MERS as the mortgagee of record instead of themselves to avoid the expense of recording any subsequent transfers. MERS’s claim that it is both an agent of the lender and the mortgagee, and the huge gaps left in the public record, give rise to a range of legal issues. This Article addresses whether security agreements naming MERS as a mortgagee meet traditional conveyance requirements and discusses the rights of counties to recover unpaid …

Earth Jurisprudence And Lockean Theory: Rethinking The American Perception Of Private Property, Traci Lynne Timmons

Environmental and Earth Law Journal (EELJ)

Earth Jurisprudence and Lockean Theory

Abstract by Traci Lynne Timmons

Thomas Berry, father of the Earth Jurisprudence movement, called for re-examining human-Earth relations. Earth Jurisprudence aspires to promote a greater respect for nature and all living things on Earth, aiming to intertwine Earth’s natural law with the body of law that governs humanity. This paper explores Earth Jurisprudence as an alternative to the property regime in the United States. It examines the fundamental principles of property ownership, frequently attributed to the philosophy of John Locke, but digs deeper into these “Lockean” roots to reveal important caveats to Locke’s general principles …

Title Examinations, When Is Action On The Security Instrument Barred, John W. Fisher Ii

West Virginia Law Review

No abstract provided.

Introduction: Comparative Property Rights, Lynda L. Butler

Faculty Publications

No abstract provided.

Vertical Land Utilization By Means Of Storey Housing Development In Urban Are, Arie Sukanti

Indonesia Law Review

Many international covenants and constitutions have recognized housing and shelter needs as one of many human right aspects. This paper intends to clarify the particular issues relating to paragraph 19 of the United Nations Millennium Declaration, on resolving city slum problems. The Declaration has also embedded initiative to achieve a significant improvement in the lives of at least 100 million slum dwellers as proposed in the “Cities without Slums” by 2020. In the local perspectives, based on existing regulations analysis, the Special Region (DKI) of Jakarta has many problems on forthcoming implementation. Vertical land utilization model by way of storey …

Eminent Domain And Racial Discrimination: A Bogus Equation, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This paper is a transcript of testimony by Professor J. Peter Byrne before the U.S. Civil Rights Commission on August 12, 2011.

This hearing addresses claims that the use of eminent domain for economic development unfairly and disproportionately harms racial and ethnic minorities. These claims draw on the history of urban renewal prior to the 1960’s, when many African Americans and others were displaced by publicly funded projects that bulldozed their homes in largely failed attempts to modernize cities. Justice Clarence Thomas’s dissent in Kelo v. City of New London further argued that the use of eminent domain for economic …

Summary Of Gallegos V. Malco Enterprises Of Nevada, 127 Nev. Adv. Op. No. 51, Chelsey Bosworth

Nevada Supreme Court Summaries

An appeal from a district court’s finding that a party cannot assign a judgment debtor’s right of action to a judgment creditor in a proceeding supplementary to the execution of a judgment.

Evolving From Dominion To Communion: How Legal Rights For Nature Can Exist In Balance With Individual Property Rights In A Global Commons, Dan Leftwich

Environmental and Earth Law Journal (EELJ)

Abstract coming soon.

Summary Of Leyva V. National Default Services Corp., 127 Nev. Adv. Op. No. 40, Marissa Pensabene

Nevada Supreme Court Summaries

An appeal from a district court order denying a petition for judicial review in a foreclosure mediation action.

Summary Of Lawrence V. Clark County, 127 Nev. Adv. Op. No. 32, Dan Hill

Nevada Supreme Court Summaries

Appeal from a district court ruling on the pleadings in a government land dispute action.