Property Law and Real Estate Commons^™

Insuring Sustainable Homeownership, David Reiss

Faculty Scholarship

No abstract provided.

Testing Fannie Mae's And Freddie Mac's Post-Crisis Self-Preservation Policies Under The Fair Housing Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Beginning in the 1930s, the federal government adopted programs and policies toward safe and decent housing for all. The initiatives included the creation of the Federal Housing Administration that, among other things, spurred mortgage lending by guaranteeing mortgage loans to low- and moderate-income borrowers. The creation of the secondary mortgage market by Fannie Mae and Freddie Mac (“GSEs”) helped provide more liquidity for loan originators. However, somewhere along the way, these GSEs lost their way, as they pursued profitability without regard to risk and heedlessly bought mortgages without considering quality.

The overabundance of poor quality mortgages led to the housing …

Integrating Adjunct Faculty Into Teaching Real Estate Transactions Law & Practice--Both In The Classroom And Online, 53 Wake Forest L. Rev. 947 (2018), Celeste M. Hammond

UIC Law Open Access Faculty Scholarship

I welcome the invitation to share my experience and ideas on teaching law students about the real world of real estate from a transactional perspective, beyond the appellate cases that are the basis of so much traditional legal education.

Fifty Years Since Passage Of The Fair Housing Act: Rent-To-Income Ratios In The Persistence Of Residential Racial Segregation In Chicago, 51 J. Marshall L. Rev. 551 (2018), Amanda Insalaco

UIC Law Review

No abstract provided.

The New Model Negotiated Alternative To The Foreclosure Act, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

One of the many painful lessons learned from the mortgage crisis that began in 2007 is that foreclosure is often a costly, slow, inefficient, and uncertain process. The additional cost and uncertainty for lenders are magnified when the balance of the mortgage debt exceeds the value of the collateral (that is, when the borrower is “underwater”), and thus full recovery by the lender of its investment is unlikely. Ways to avoid this misery are for the lender (usually represented by the servicer for a secondary market purchaser or a securitized trust) and the borrower to enter into a deed in …

A Clean Slate For Texas Foster Youth: Policy Recommendations On Preventing And Resolving Identity Theft For Youth In Foster Care, Madison Howard Churchman

Texas A&M Journal of Property Law

This Article will compare how Texas and other states implement this federal law differently and then discuss how Texas can improve its flawed system to better protect children negatively affected by identity theft. Section II of this Article will introduce and explain M.D. v. Abbott and the changes in Texas foster care on the horizon as a result of this case. Section III will introduce and delve into the issue of identity theft in foster youth as a whole, and it will tell the story of one foster youth who faced the results of identity theft. Finally, the Section breaks …

The "Publicization" Of Private Space, Sarah B. Schindler

Faculty Publications

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or POPOS. These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This is especially important because in embracing POPOS, cities have made a …

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

Faculty Scholarship

Human beings should live in places where they are most productive, and megacities, where information, innovation, and opportunities congregate, would be the optimal choice. Yet megacities in both China and the United States are excluding people by limiting the housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Back-Yard (“NIMBY”) homeowners are taking over megacities in the U.S. and hindering housing development. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of …

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

Rainwater Harvesting In Colorado And The Quandary Of A Taking, Stephen N. Bretsen

Texas A&M Journal of Property Law

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them …

Old Water Becoming New Again: Reuse Of Treated Wastewater Effluent In Texas, Howard S. Slobodin, Hope C. Shelton

Texas A&M Journal of Property Law

The reuse of treated wastewater effluent for municipal supply is not a new idea in Texas, having been contemplated for at least sixty years. However, its importance has grown in recent decades as traditional surface water sources have become fully subscribed. Reuse is recognized as a significant source of future supply for Texas in the 2017 Texas State Water Plan.1 The law related to reuse is, however, still very much a developing subject. Recent administrative actions and judicial decisions have better defined the contours of the entitlements necessary to reuse effluent discharged to state-owned water courses.2 In the midst of …

The Comparable Properties Standard: A Windfall For The Wealthy, A Shortfall For The Poor, Timothy R. Macgorman

Texas A&M Journal of Property Law

The Texas Constitution mandates that taxation shall be equal and uniform, and that property shall be appraised at market value for the purposes of ad valorem property taxation. While valuation methodology is crucial to property owners in such a context, the “Comparable Properties Standard” embodied in Sections 41.43(b)(3) and 42.26(a)(3) of the Texas Tax Code appears to allow wealthy property owners to unconstitutionally manipulate the appraised value of their property for ad valorem taxation purposes and shift their tax burden to other taxpayers. Unless the Texas legislature enacts a mandatory sales price disclosure statute, or directly amends or repeals the …

How A Zombie Condo Board Can Ruin Your Day: The Case For Rewriting Section 15 Of The Illinois Condominium Property Act, 52 Uic J. Marshall L. Rev. 1 (2018), Joseph Alfe

UIC Law Review

By exploiting the highly ambiguous Section 15 of the Illinois Condominium Property Act, developers and their zombie Homeowner Association boards of directors can easily oust unwitting unit owners–and it’s all legal. In analyzing just such a case that was before the DuPage County Circuit Court, Huntington Condo. Ass’n v. Grimm, and viewed through the clarifying twin lenses of Eminent Domain and notions of fair play and justice, one cannot help but conclude that Section 15 of the Act is desperately in need of a dramatic rewrite. I propose one here. But more so, in the quest for clarity of the …

From The Dark Tower: Unbridled Civil Asset Forfeiture, Saleema Saleema Snow

Journal Articles

The Black Lives Matter movement reinforces that race dominates all aspects of the judicial system. Police officers are significantly more likely to stop African Americans than Whites. Even when a stop or arrest is unwarranted, law enforcement agencies can still profit from the property seized under the guise of forfeiture statutes. Various state and federal civil asset forfeiture statutes legitimize law enforcement seizing cash, homes, cars, and office equipment—all with nominal due process protections. Despite evidence of discriminatory police practices, the U.S. Supreme Court deems these forfeiture practices constitutional.

This article seeks to reignite the conversation about discriminatory policing and …

What If? Using Medicare Regulations To Control And Commercialize Rainwater Harvesting, C. Trey Scott

Texas A&M Journal of Property Law

This Article will examine how rainwater harvesting in Texas would look if applied to a structure for rainwater governance similar to the structure of Medicare governance. Section II addresses the reasons why rainwater harvesting must be considered a necessity. Next, Section III will provide an overview of the applicable Medicare regulations that will later be reappropriated and rewritten for rainwater harvesting. Section IV will apply the discussed Medicare structure to rainwater harvesting. Finally, Section V will provide a closing answer to what if we applied the Medicare structure to rainwater harvesting.

Semantic Hygiene For The Law Of Regulatory Takings, Due Process, And Unconstitutional Conditions -- Making Use Of A Muddy Supreme Court Exactions Case, Zygmunt J.B. Plater, Michael O'Loughlin

University of Colorado Law Review

An unfortunate amount of semantic confusion currently burdens the constitutional process of balancing private property rights and governmental public welfare protections. The Fifth Amendment contains both a general requirement of "due process," and a corollary protection against unconstitutional "taking" of property. These are two separate protections, not just one. More than a century after the Takings Clause was drafted, an enigmatic decision, Pennsylvania Coal, expanded the clause to say that government regulations could cause such a diminution of private property value that they could unconstitutionally take that property, even with no physical appropriation (which is how the Framers had understood …

Law, Visual Art, And Money, Lydia Pallas Loren

Lewis & Clark Law Review

This Essay explores areas where law and art interact, and where, it seems, money changes things. It discusses three areas of the law that encourage the creation of visual art, starting with the basic combination of property and contract, and moving to the more targeted law of copyright and, finally, the law specifically aimed at the visual arts: the Visual Artists Rights Act (VARA). The Essay then takes up the task of exploring the ways in which both the rights and protections offered by VARA and by copyright law are affected by commercial exploitation of visual artworks. It also examines …

New Water For Water Dispute Resolution, Rhett B. Larson

Texas A&M Journal of Property Law

Water scarcity often leads to water disputes. New water supplies—such as bulk water imports, desalination, cloud seeding, or increased stream flows from improved forest management—can mitigate water scarcity and thus help avoid water disputes. However, new water supplies can also aggravate water disputes if not developed in concert with legal reforms. This Article evaluates the role of new water in two cases of water disputes in arid regions and proposes legal reforms to promote new water as a means of water dispute resolution. The first case is the adjudication of water rights in the Gila River basin in Arizona. Improved …

Poke´Mon Go: Emerging Liability Arising From Virtual Trespass For Augmented Reality Applications, Travis Alley

Texas A&M Journal of Property Law

This Article focuses on various types of trespass and the challenges that augmented reality technology presents to the parties involved. Section II lays out a broad overview of augmented reality, its history, and the concept of Pok ´emon Go. Section III addresses evolution trespass law in the United States and how it is applied in cases of physical and electronic intrusions. Section III also discusses nuisance briefly, as it can often interrelate to trespass theories. Section IV then analyzes how courts might interpret trespass laws for augmented reality applications and the forms of liability each party may face. The solution …

Regulate Or Be Regulated: Why Professional Landmen Should Be Proactive In Protecting The Integrity Of Their Occupation, Brian J. Steinocher

Texas A&M Journal of Property Law

In most states, the landman profession is unregulated and free to define itself. Work performed by landmen often flirts with the practice of law, but under Texas law much of the work that landmen perform is excepted from the unlicensed practice of law. Historically, the American Association of Professional Landmen (“AAPL”) has been influential in guaranteeing that this exception stays available to landmen all over the United States and that landmen are not subject to licensing requirements in the states they work in. In light of the recent, unsuccessful attempt by the Texas legislature to regulate landmen, this Article will …

Clarifying The Scope Of Texas’S Cross-Jurisdictional Tolling Rule: An Exception For Putative Class Members With Property-Related Claims, Andrew W. Bell

Texas A&M Journal of Property Law

This Comment seeks to clarify the scope of cross-jurisdictional tolling in Texas. Although both Texas and federal courts interpreting Texas law have addressed this issue, no Texas court has specifically addressed whether putative members of a class action lawsuit—which was filed in a federal court located in Texas and that asserts Texas property-related claims—can rely on the class action lawsuit to toll the statute of limitations applicable to their claims. Part I of this Comment provides a brief history of the class action tolling doctrine, specifically describing American Pipe and its progeny. Part II discusses recent Texas case law decisions …

Smart Growth Through Tiny Homes: Incentivizing Freedom Of Housing, A. Robin Donnelly

Texas A&M Journal of Property Law

Tiny Homes are an environmentally friendly housing option popping up across the United States. Tiny Homes have a minimal environmental footprint due to their small size and eco-friendly design. As such, Tiny Homes could address several of the Environmental Protection Agency’s city development goals. The Environmental Protection Agency (“EPA”) has created a Smart Growth program that provides financial assistance to cities seeking to implement greener practices throughout city planning. Tiny Home Eco communities could become a popular Smart Growth development plan. Unfortunately, cities have not welcomed Tiny Homes, and this alternative green housing scheme has remained undeveloped. This Comment is …

Real Property, J. Richard White, G. Roland Love, Amanda Grainger

SMU Annual Texas Survey

No abstract provided.

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and landuse implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana …

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Indiana Law Journal

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial …

Licenses And The Property/Contract Interface, Christina M. Mulligan

Indiana Law Journal

INTRODUCTION

I. THE ROLE OF FORMAL CATEGORIES

II. THE COMPOUND-PAUCITAL LICENSE

A. IDIOSYNCRASY AND INFORMATION ASYMMETRIES

B. REGULATING LICENSES

1. THE NOTICE STRATEGY

2. THE PROTECTION STRATEGY

III. RESTRAINTS ON ALIENATION AND USE

A. HARMS CAUSED BY RESTRAINTS ON ALIENATION AND USE

1. INCREASED INFORMATION COSTS

2.WASTE

B. LIMITING HARM WITH PROTECTIVE STANDARDIZATION

1. THE LICENSE V. SALE DISTINCTION IN PRACTICE

2.WHAT IS A DIGITAL SALE?

3. FAVORING SALES WITHOUT LOSING FLEXIBILITY

C. DISTINGUISHING BETWEEN IN REM AND IN PERSONAM LICENSE TERMS

IV. LICENSE REVOCATION

A. TIMING REVOCATION

B. BENEFITS AND CONCERNS

1.MANAGING SHARED RESOURCES VS. UPSET RELIANCE INTERESTS

2. …

A Guide To Understanding And Addressing Vacant Property In The City Of St. Louis, Dana M. Malkus

Faculty White Papers

The City of St. Louis has a serious vacant property challenge. Since the population peak in 1950, the City has experienced a 63% decline in population and now has one of the highest rates of vacancy in the nation. The City has approximately 25,000 vacant properties. Approximately 12,000 of these are owned by the Land Reutilization Authority (LRA) or other public agencies, which means that approximately 13,000 are privately owned. Most of those vacant properties are concentrated in the north and southeast portions of the City. For a city of its size, the City has "an extremely large" number of …

The Public Trust Doctrine: The Development Of New York’S Doctrine And How It Can Improve, Steven Fink

Touro Law Review

No abstract provided.

No Brakes: Loan Acceleration And Diminishing Foreclosure Defenses, Eric A. Zacks, Dustin A. Zacks

Law Faculty Research Publications

No abstract provided.

Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being, David Fagundes

Faculty Articles

The twin notions of exclusion and possession dominate our cultural and legal conceptions of property. This Article uses the lens of hedonics—the emergent science of happiness—to make a case for the less appreciated notions of inclusion and dispossession. Evidence from this new field shows that owners maximize their welfare, not when they amass land and chattels and keep others away from them, but when they pursue the polar-opposite strategies of inclusion and dispossession, such as sharing their property, donating it to charity, or giving it away. This Article begins its defense of inclusion and dispossession by providing background about the …