Property Law and Real Estate Commons^™

Accidental Suicide Pacts And Creditor Collective Action Problems: The Mortgage Mess, The Deadweight Loss, And How To Get The Value Back, Robert C. Hockett

Cornell Law Faculty Publications

Sustained economic recovery will remain elusive in America, post-crash, until principal is reduced on some 10-13 million underwater home mortgage loans across the nation. Yet in the case of privately securitized loans, these write-downs are all but impossible to carry out on the requisite scale because bubble-era securitization contracts, which now effectively function as suicide pacts among bondholders, would require collective action by millions of geographically dispersed passive investors in order to authorize write-downs or sales out of securitization trusts. The solution, this article suggests, is for state and municipal governments to use their eminent domain powers to buy up …

Property's Constitution, James Y. Stern

Faculty Publications

Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do …

Norfolk’S Flooding Adaptation Measures: Taking Lawful Precautions Or ‘Takings’ Lawsuits?, Emilie A. Whitehurst

Virginia Coastal Policy Center

No abstract provided.

Property: A Bundle Of Sticks Or A Tree?, Anna Di Robilant

Faculty Scholarship

In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical liberal theorists of property, and the bundle of rights model, invented in the United States by Hohfeld and the Realists. This article retrieves an alternative concept of property, the tree concept of property. The tree concept of property was developed by European property scholars between 1900 and the 1950s, as part of Europe’s own “realist” moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use …

Unborn Communities, Gregory S. Alexander

Cornell Law Faculty Working Papers

Do property owners owe obligations to members of future generations? Although the question can be reframed in rights-terms so that it faces rights-oriented theories of property, it seems to pose a greater challenge to those theories of property that directly focus on the obligations that property owners owe to others rather than (or, better, along with) the rights of owner. The challenge is compounded where such theories emphasize the relationships between individual property owners and the various communities to which they belong. Do those communities include members of future generations? This paper addresses these questions as they apply to a …

A Specter Is Haunting The Financial Industry - The Specter Of The Global Financial Crisis: A Comment On The Imminent Expansion Of Consumer Financial Protection In The United States, The United Kingdom, And The European Union, Daniel Lamb

Journal of the National Association of Administrative Law Judiciary

This Comment explores the regulatory fallout from the global financial crisis. Across borders, policy makers are united in their conviction to reconcile the perceived failures of their predecessors to foresee and prevent the crisis, the effects of which show no signs of abating. A critical component of what caused the crisis was the inability to correct failures in the consumer credit market, specifically in subprime mortgages. Exacerbated by an influx of capital and a generally weak regulatory environment, this market failure manifested itself forcefully through a tidal wave of defaults in the American mortgage market that sent shock waves around …

Nevada's Residential Real Estate Crisis: Local Governments And The Use Of Eminent Domain To Condemn Mortgage Notes, Ngai Pindell

Nevada Law Journal

No abstract provided.

Foreground Principles, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question.

The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …

Property's Ends: The Publicness Of Private Law Values, Gregory S. Alexander

Cornell Law Faculty Working Papers

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Article contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic or simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are ― social and political. A consequence of this conception of the human condition is that the values of …

Playing God: The Legality Of Plans Denying Scarce Resources To People With Disabilities In Public Health Emergencies, Wendy F. Hensel, Leslie E. Wolf

Florida Law Review

Public health emergencies can arise in a number of different ways. They can follow a natural disaster, such as Hurricane Katrina, the 2004 tsunami, and the recent earthquakes in Haiti and Chile. They may be man-made, such as the September 11 attacks and the anthrax scare. They may also be infectious. While no pandemic flu has yet reached the severity of the 1918 flu, there have been several scares, including avian flu and most recently H1N1.

Few questions are more ethically or legally loaded than determining who will receive scarce medical resources in the event of a widespread public health …

Agins V. City Of Tiburon: An Aggrieved Party-Loss Of Inverse Condemnation Actions In Zoning Ordinance Disputes , Walter R. Luostari

Pepperdine Law Review

No abstract provided.

The Real Estate Brokerage Industry And Antitrust Implications, Lynn H. Mack, Valerie A. Moore

Pepperdine Law Review

No abstract provided.

Agins V. City Of Tiburon: Open Space Zoning Prevails - Failure To Submit Master Plan Prevents A Cognizable Decrease In Property Value, Jermaine Chastain

Pepperdine Law Review

This casenote examines the Supreme Court's struggle to reconcile its focus on the facial validity of a zoning ordinance with the traditional "taking" approach requiring diligent factual inquiry. While the Agins Court reiterates such an approach, the author notes the Court's departure from important constitutional and precedential considerations. The author offers a possible explanation for the departure, concluding that the Agins decision apparently makes plan submission a prerequisite for acknowledging economic loss and strongly implies a requirement of complete loss of all property value before a compensable taking will be recognized.

The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger

Pepperdine Law Review

The new Starker decision addresses the issue whether a nonsimultaneous exchange qualifies for section 1031 nonrecognition treatment. The Court of Appeals for the Ninth Circuit, in addressing this issue, also had to determine the appropriateness of the collateral estoppel "separable facts" doctrine under the facts in the case. The author provides an in-depth examination of the court's clarification of collateral estoppel and expansion of section 1031. The author, in agreeing with-the decision, welcomes the added flexibility the case lends to the real estate finance field.

Summary Of Sowers V. Forest Hills Subdivision, 129 Nev. Adv. Op. 9, Daniel Nubel

Nevada Supreme Court Summaries

The Court considered whether substantial evidence existed to support the district court’s decision to grant a permanent injunction against the construction of a wind turbine.

Summary Of Building Energetix Corp. V. Ehe, Lp, 129 Nev. Adv. Op. 6, Brittany Llewellyn

Nevada Supreme Court Summaries

Appeal from a district court order granting a deficiency judgment after a nonjudicial foreclosure sale and subsequent reconveyance of property.

Effects Of The New Bankruptcy Code On Creditors With Secured Claims In Residential Real Property, Richard Mednick

Pepperdine Law Review

The sweeping changes brought about by the Bankruptcy Reform Act of 1978 may have a profound effect on the secured interests of lenders. The rights of a creditor against a debtor, and the procedure that he must follow vary with the chapter of the new Bankruptcy Code under which the debtor files his claim. Richard Mednick, a Judge on the Bankruptcy Court for the Central District of California, explains the procedures required and the interest affected by the most commonly invoked chapters of the new code. Judge Mednick strongly urges that creditors become familiar with these changes, as some new …

Top Leases And The Rule Against Perpetuities, J. Suzanne Hill

Pepperdine Law Review

The competition for oil and gas leases has resulted in an increase in the use of top leases to secure oil and gas leasehold estates. Top leases which are found to violate the Rule against Perpetuities could result in the loss of millions of dollars to the lessee. The author examines top leasing in light of the Rule against Perpetuities and concludes that absent a savings clause, such leases violate the Rule. A savings clause is proposed which would save an otherwise invalid lease thereby circumventing the harsh application of the Rule.

Keeping Up With The Jonses: Making Sure Your History Is Just As Wrong As Everyone Else's, Brian Sawers

Michigan Law Review First Impressions

Before Katz v. United States, a search under the Fourth Amendment required a trespass. If there was no trespass on one’s property, then there was no search. In Katz, a 1967 decision, the U.S. Supreme Court abandoned that approach, instead finding a search without a trespass based on the government’s invasion of a “reasonable expectation of privacy.” In Oliver v. United States, the Court found that trespass was not sufficient to create a search. It found no reasonable expectation of privacy in open fields, and thus no search, even though the defendant had erected “No Trespassing” signs around his property …

Of Smart Phone Wars And Software Patents, Stuart Graham, Saurabh Vishnubhakat

Faculty Scholarship

Among the main criticisms currently confronting the US Patent and Trademark Office are concerns about software patents and what role they play in the web of litigation now proceeding in the smart phone industry. We will examine the evidence on the litigation and the treatment by the Patent Office of patents that include software elements. We present specific empirical evidence regarding the examination by the Patent Office of software patents, their validity, and their role in the smart phone wars. More broadly, this article discusses the competing values at work in the patent system and how the system has dealt …

California Tax Practitioners Beware: Even The Ninth Circuit's I.R.C. Section 1031 Loophole Has Limits, Laurel A. Tollman

Pepperdine Law Review

Section 1031 of the Internal Revenue Code provides tax deferred status for like-kind exchanges of investment property. The Deficit Reduction Act of 1984 amends this section to curb the use of the controversial delayed exchange as a tool to suspend tax assessment for an inordinate period of time. California attorneys should beware the fiture structuring of like-kind exchanges;for the amendment revises the lenient procedures for like-kind qualification sanctioned by the permissive Ninth Circuit.

The Federal Antitrust Implications Of Local Rent Control: A Plaintiff's Primer, Steven G. Churchwell

Pepperdine Law Review

The proliferation of rent control laws in many California cities has led to a furious debate concerning its legal, economic, and social consequences. Leading scholars believe that rent control only exacerbates existing housing shortages and excludes the poor, the minority and the elderly from scarce rental housing. This article sets forth the proposition that the fixing of rent ceilings by a local government violates the federal antitrust laws and can be invalidated in federal court.

The Real Estate Broker's Fiduciary Duties: An Examination Of Current Industry Standards And Practices, William J. Minick Iii, Marlynn A. Parada

Pepperdine Law Review

No abstract provided.

Summary Of City Of Las Vegas V. Cliff Shadows Prof'l Plaza, Llc, 129 Nev. Adv. Op. 2, Brittney Puzey

Nevada Supreme Court Summaries

The Court considered an appeal and cross appeal on issues arising from an eminent domain action brought by Appellant City of Las Vegas to acquire a 40-foot-wide strip of real property from Respondent Cliff Shadows Professional Plaza, LLC.

The Legality Of California Development Fees, Erik B. Michelsen

Pepperdine Law Review

No abstract provided.

Condominium Associations: Living Under The Due Process Shadow, Brian L. Weakland

Pepperdine Law Review

No abstract provided.

Easton: The Birth Of Negligence In Real Estate Broker-Purchaser Relationships, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Fear And Loathing On The California Coastline: Are Coastal Commission Property Exactions Constitutional?, Mitchell F. Disney

Pepperdine Law Review

No abstract provided.

Kendall V. Ernest Pestana, Inc.: Landlords May Not Unreasonably Withhold Consent To Commercial Lease Assignments, Byron R. Lane

Pepperdine Law Review

No abstract provided.

Nollan V. California Coastal Commission: You Can't Always Get What You Want, But Sometimes You Get What You Need, Timothy A. Bittle

Pepperdine Law Review

No abstract provided.