Property Law and Real Estate Commons^™

Agdaagux Tribe Of King Cove V. Jewell, Taylor R. Thompson

Public Land & Resources Law Review

In a lengthy opinion by the Alaska District Court, the battle for a proposed medical emergency road through the Izembek National Refuge stalled. The court held that the Department of the Interior’s No Action Alternative blocked the construction of the road was decided in accordance within the Department’s authority. It is not the end of the battle over the road, as the court alluded that Congress may be able to change this decision.

The Impact Of The United States Tax Laws On International Technology Transfer: An Overview And Some Suggestion For Minimizing The Bite, Marcus B. Finnegan, Robert E. Mccarthy

Georgia Journal of International & Comparative Law

No abstract provided.

Eel River Estuary And Centerville Slough Enhancement Project Historic Resources Addendum, Susie Van Kirk

Susie Van Kirk Papers

A collaborative project-Eel River Estuary and Centerville Slough Enhancement Project-involves governmental agencies, non-profits, and landowners with the goal of restoring and improving habitats and agricultural opportunities on lower Eel River and in the area of Centerville in Humboldt County. Multiple project objectives include restoration of ecosystem functions on a landscape, although altered by diking and ditching, still retains a unique complex of wetlands, sloughs, a major river system, and the Pacific Ocean. Modification of artificial controls such as culverts and tide gates, reconnection of watercourses, sediment reduction, and better management of flooding potential are ongoing projects with more proposed, all …

Real Property, Linda S. Finley

Mercer Law Review

A review of the survey of real property law for the last several years shows an evolution of topics. One year the creation of the Georgia Fair Lending Act, and the duties that new legislation placed upon attorneys and lenders was a critical topic; the following year (and the next), the topic of interest was how title to church property is determined when a congregation splits. For the last few years, the downturn in the Georgia and national economy, and the protection of consumers under foreclosure laws and from the unauthorized practice of law, have seen both judicial and legislative …

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.

Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone

Michigan Journal of Environmental & Administrative Law

The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning …

Legal Aspects Of Coastal Adaption & Resilience In Rhode Island: A Workshop For Municipal Solicitors And Staff, Roger Williams University School Of Law, Marine Affairs Institute, Sea Grant Rhode Island, Coastal Resources Management Council, University Of Rhode Island Graduate School Of Oceanography

School of Law Conferences, Lectures & Events

No abstract provided.

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

Todds: A Transfer On Death Dilemma? A Comprehensive Analysis Of Minnesota’S Transfer On Death Deed Statute—Minn. Stat. § 507.071, Keriann L. Riehle

Journal of Law and Practice

No abstract provided.

The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire

Et Cetera

The EPA and US Army Corps of Engineers’ agency rule regarding the definition of “Waters of the United States” under the Clean Water Act increased jurisdictional assertions by as much as 5%. What’s the big deal? This violates the Home Rule of state and local governments. This violation also creates concerns where many property owners are not sure if they need federal permits to develop land under the Clean Water Act. With issues like this new Clean Water Act rule, the drought conditions in the Western U.S., and international concerns regarding fresh water, water law is a critical area which …

What We Have Here Is A Failure To Compensate: The Case For A Federal Damages Remedy In Koontz "Failed Exactions", Christopher M. Kieser

William & Mary Environmental Law and Policy Review

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court held that an agency could not, consistent with the Takings Clause, condition a permit on a land exaction unless the exaction bears an “essential nexus” and “rough proportionality” to the harms the government seeks to mitigate. Then, in Koontz v. St. Johns Water Management District, 133 S. Ct. 2586 (2013), the Court extended Nollan and Dolan to exactions that were never completed because the property owner refused to acquiesce to the demand. Nevertheless, the Court held that …

Grounding Land Reform: Toward A Market-Compatible Approach To Land Reform, Shelley Cavalieri

St. John's Law Review

(Excerpt)

This Article begins the project of constructing a unified account of land reform. This model consists of two central aspects. First, it articulates a set of goals, both practical and expressive, that redistributive land reform efforts can forward. Second, it offers a pragmatic theory of land reform, one that simultaneously achieves the progressive, poverty-eradication goals of land reform proponents and satisfies neoliberal demand for stable land markets. In this regard, the project offers a fresh way of thinking of the intractable conflict in land reform policy: how to redistribute land without destabilizing the nation. In addressing this problem, the …

Decoupling The Law Of Will-Execution, Mark Glover

St. John's Law Review

(Excerpt)

This Article proceeds in four parts. Part I explains the context of reform, including the traditional law of will-execution, the criticism of strict compliance, and the reform movement. Next, by explaining the purpose of testamentary formality, Part II serves as the foundation for decoupling the analysis of will formalities from the analysis of strict compliance. Part III completes the process of decoupling the law of will-execution by examining the purpose of strict compliance. Finally, Part IV explores the implications that the recognition of the independent purposes of will formalities and strict compliance has for the law of wills. Specifically, …

Building Codes To Minimize Cover Collapses In Sinkhole-Prone Areas, George Veni, Connie Campbell Brashear, Andrew Glasbrenner

Sinkhole Conference 2015

Cover- collapse sinkholes are forming with increasing frequency under buildings. Analyses of sinkhole distribution in Beacon Woods, Florida, preliminarily indicate their occurrence is an order of magnitude greater in urban versus undeveloped areas, suggesting the structures themselves are enhancing the collapse process. The most likely causes are induced recharge via at least one of two sources. First, runoff and drainage from roads, structures, and impoundments that is not adequately dispersed will promote sinkhole development. Second, leaking water, sewer, and septic systems beneath or adjacent to a structure will also promote collapse. The process of cover-collapse from induced recharge is well …

The Curious Untidiness Of Property & Ecosystem Services: A Hybrid Method Of Measuring Place, John Page, Ann Brower, Johannes Welsch

Pace Environmental Law Review

Theoretically, this paper builds on ideas of ecosystem services (ES) in landscapes, property theories of plurality and marginality, and the legal geography of localized place. Methodologically, we will explore three divergent ways of measuring ES in a propertied landscape. Substantively, combining property theory and spatial methods in this way will allow for future consideration of property arrangements that might be more optimal and representative of contextualized place.

Part II presents the qualitative method--a narrative description of the flow of resources and services across a transect from the mountains to the sea. Narrative is effective in describing the aesthetics and indelibly …

Transferring Nonnegotiable Mortgage Notes, Dale A. Whitman

Faculty Publications

This article reviews what we know about transferring ownership and the right of enforcement of nonnegotiable notes. The focus will be on notes secured by mortgages, since this is likely the context in which most modern nonnegotiable notes are created. There has been a vast amount of litigation about the transfer of negotiable mortgage notes in the past half decade, greatly expanding our understanding, but there has been little development involving nonnegotiable notes. Hence, it is helpful to compare negotiable and nonnegotiable notes, with particular emphasis on how each is transferred. Perhaps ironically, this means that the bulk of this …

Perspectives - William Morrish, Professor Of Urban Ecologies At Parsons The New School For Design, James Hagy

Rooftops Project

How can arts organizations with an aspiration to build their own facilities connect project design both with the broader community and with financial sustainability? The Rooftops Project’s Zulaihat Nauzo and Professor James Hagy talk with William Morrish, Professor of Urban Ecologies at Parsons The New School for Design.

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

Zoning As Taxidermy: Neighborhood Conservation Districts And The Regulation Of Aesthetics, Anika S. Lemar

Indiana Law Journal

Over the last thirty years, municipalities across the country have embraced neighborhood conservation districts, regulations that impose design standards at the neighborhood level. Despite their adoption in thirty-five states, in municipalities from Boise to Cambridge, neighborhood conservation districts have evaded critical analysis by legal scholars. By regulating features such as architectural style, roof angle, and maximum eave overhang, conservation districts purport to protect “neighborhood character” or “cultural stability.” Implicit in these regulations is the unsupported assumption that the essential feature of a neighborhood’s character is its architectural design at a single point in time. The unfortunate result is zoning as …

Rent Certainty Is Not Rent Control, Tom Dunne

Reports

The housing crisis and the debate about rent control should result in a beneficial change to the regulation of the sector but the opportunity could be lost for want of clarity of thinking about the nature of rent certainty and the distinction between it and rent control. At present rent is regulated by the Residential Tenancies Act 2004 (RTA 2004) which provides that rent can only change once a year and cannot be more than the market rent. Many argue a greater degree of rent certainty is required and that rent should not be allowed to increase by more than …

Property Law—Upending The Familiar Tools Of Estate Planning: Equity Renders Revocable Trusts Subject To The Arkansas Spousal Election. In Re Estate Of Thompson, 2014 Ark. 237, 434 S.W.3d 877., Lucy L. Holifield

University of Arkansas at Little Rock Law Review

No abstract provided.

Second Liens And The Leverage Option, Adam J. Levitin, Susan M. Wachter

Vanderbilt Law Review

This Article demonstrates that the housing bubble was driven by second mortgages to a much greater extent than previously appreciated. A unique feature of American law allows homeowners to take out second mortgages, without the consent or even knowledge of the first mortgage lender. The result is an underpricing and overextension of credit as first mortgage lenders cannot control or properly price for the risks created by second mortgages. Homeowners' unilateral right to encumber their properties with additional mortgage loans creates what we term the "leverage option" that is embedded in American mortgages. The leverage option is an unintended consequence …

Reforming Reit Taxation (Or Not), Bradley T. Borden

Faculty Scholarship

No abstract provided.

Mardian V. Greenberg Family Trust, 131 Nev. Adv. Op. 72 (Sep. 24, 2015), Colton Loretz

Nevada Supreme Court Summaries

The Court concluded that the promissory note, which had security interest by both a deed of trust of Arizona real property and personal guaranties, was governed by Nevada limitations period because of the Nevada choice-of-law provision within the contract. Consequently, the Court held that the party seeking deficiency judgment was time-barred pursuant to NRS 40.455(1) because the judgment was not sought within six months of the foreclosure sale of the collateral property.

In Re: Manhattan West Mechanic’S Lien Litigation, 131 Nev. Adv. Op. 70 (Sept. 24, 2015), Kristian Kaskla

Nevada Supreme Court Summaries

The Court determined that (1) a general subordination agreement effects a partial subordination; and (2) NRS 108.225 does not preclude parties from contracting for a partial subordination.

Local Government Finance As Integrated System: The Uneasy Case For Using Special Districts In Real Estate Finance (A Response To Odinet’S Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance), Darien Shanske

Washington and Lee Law Review Online

Local governments have long used special financing districts to build infrastructure. If a local project, say building a pocket park, is likely to increase the values of properties very close to the park, then why should those properties not pay for the park in the first place? Though efficient and fair in many cases, the use of these districts can also be problematic. For instance, it seems likely that wealthier residents, with higher property values to leverage, are especially likely to use these districts effectively. It has also been the case that developers have used these districts speculatively, which had …

Response To Christopher Odinet, Super- Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Peter W. Salsich Jr.

Washington and Lee Law Review Online

No abstract provided.

Land Baron Invs. V. Bonnie Springs Family Lp, 131 Nev. Adv. Op. 69 (Sept. 17, 2015), Rob Schmidt

Nevada Supreme Court Summaries

This case is an appeal arising from a failed land sale contract. The Court considered three issues of first impression, holding that (1) when a party bears the risk, mutual mistake is not a basis for rescission; (2) an abuse of process claim may not be supported by a complaint to an administrative agency; (3) a nuisance claim seeking only emotional distress damages must be supported by proof of physical harm. Ultimately, The Court affirmed in part and reversed in part.

Drafting And Securitizing Participation Mortgages: A Re-Introduction, Spencer J. Coopchik, Yildiray Yildirim

The Journal of Business, Entrepreneurship & the Law

This Paper will reintroduce, explore, and expand on the financing arrangement known as a Participation Mortgage. First, this Paper will cover the features, history, and policy purposes behind the mortgage. Second, the Paper will focus on legal mechanics and drafting considerations of Participation Mortgages, so they may later be securitized. Finally, the Paper will explore the possibility and legality of creating Participation Mortgaged Backed Securities to be sold in the secondary market.

Do You Know The Fair Market Value Of Your Property?: A Call To The Legislature To Revise Section 775.089, Florida Statutes, Governing Restitution, Adam M. Hapner

Barry Law Review

No abstract provided.