Property Law and Real Estate Commons^™

Slicing (And Transferring) Development, John Infranca

Suffolk University Law School Faculty Works

This symposium essay applies insights from Professor Lee Fennell’s Slices and Lumps: Division and Aggregation in Law and Life to two distinct issues in zoning and land use regulation. The first is the use of transferable development rights (TDRs). TDRs provide an ideal vehicle for considering the interaction of slices and lumps, the advantages (and disadvantages) of both slicing and aggregating entitlements, and the relationship between what might be termed naturally occurring lumps and the artificial lumps created by law. The conceptual framework developed in Slices and Lumps also sheds light on recent high-profile zoning reforms and the potential for …

Artistic Justice: How The Executive Branch Can Facilitate Nazi-Looted Art Restitution, Paige Tenkhoff

Vanderbilt Law Review

Eight decades after the Holocaust, many pieces of art stolen from Jewish families still sit in the state-owned museums of former Nazi-aligned regimes. In an effort to right old wrongs, plaintiffs are bringing suit in the United States against the foreign governments who retain the art under the Foreign Sovereign Immunity Act’s expropriation exception, which permits aggrieved plaintiffs to sue foreign countries for property that was illegally taken in violation of international law. But circuit courts are split as to whether these suits against foreign sovereigns should be allowed to go forward. This Note analyzes the divergent interpretations of the …

Property, Unbundled Water Entitlements, And Anticommons Tragedies: A Cautionary Tale From Australia, Paul Babie, Paul Leadbeter, Kyriaco Nikias

Michigan Journal of Environmental & Administrative Law

As water becomes an increasingly scarce resource, a lack of clarity in relation to its use can produce both conflict among and inefficient use by users. In order to encourage markets in water and to ensure the viability and functionality of those markets, governments in many jurisdictions have moved away from commons property as a means of water allocation, and towards systems of private property in water. In doing so, one policy and legal option is “unbundling”, which seeks carefully to define both the entitlement to water and its separation into constituent parts. Advocates claim that unbundling makes water rights …

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Washington Law Review

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of …

The Liberty Impact Of Gender, Kingsly Alec Mcconnell

Washington Law Review

Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise …

Landlord-Tenant Revolution Redux: New York’S “Rad” Landlord-Tenant Law Revisions, Shelby D. Green, Samuel R. Middleton, Britney L. Frates

Elisabeth Haub School of Law Faculty Publications

In June 2019, New York adopted the Housing Stability and Tenant Protection Act of 2019 (HSTPA), 2019 N.Y Laws ch. 36, amending various sections of the existing substantive and procedural laws regulating landlord-tenant relations. Calling the HSTPA “rad” suggests two things: from the perspective of housing advocates and tenants, it is “awesome” but for property owners and investors, it is concernedly “radical.”

Both meanings are apt because of the sweeping changes the HSTPA makes to the traditional landlord-tenant dynamic--from tenancy creation to perpetual rent controls to post-judgment relief, creating what might be described as a “statutory lease.” Both sides of …

Data And The Social Obligation Norm Of Property: An Essay In Honor Of Professor Gregory S. Alexander, Christopher K. Odinet

Faculty Scholarship

In the age of the Cambridge Analytica/Facebook scandal and sundry other data breaches at Under Armour, Target, and Best Buy, the issue of security and privacy in consumer data has become increasingly important. For much of the modern era, the development of technology has gone relatively unchecked, with the United States having ceded much of the policymaking terrain to Silicon Valley. This has resulted in the unbridled creation of vast amounts of consumer data. Users who engage with tech platforms generate bits and bytes about themselves based on their activities, preferences, and habits. This information — “data” — is then …

Cranesbill Tr. V. Wells Fargo Bank, 136 Nev. Adv. Op. 8 (March 5, 2020), Brittney Lehtinen

Nevada Supreme Court Summaries

The Court determined that homeowners may cure defaults as to superpriority portions of HOA liens much like first deed of trust holders; however, failure to explicitly or implicitly direct allocation of payments by either debtors or creditors requires court intervention to decide what is “just and equitable.”

Berberich V. Bank Of America, 136 Nev. Ad. Op (Mar. 26, 2020), Amelia Mallette

Nevada Supreme Court Summaries

The Supreme Court of Nevada considered whether a quiet title action from a foreclosure sale was barred by NRS 11.080 because Berberich was in possession of the property for five years before commencing the action. The Court held that the limitations period outlined in NRS 11.080 will not run against an owner who is in undisputed possession of the land.

A Knock On Knick'S Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack

Articles

In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …

Who Owns Bitcoin? Private Law Facing The Blockchain, Matthias Lehmann

Minnesota Journal of Law, Science & Technology

No abstract provided.

Predatory Cities, Bernadette Atuahene

All Faculty Scholarship

Between 2011 and 2015, the Wayne County Treasurer completed the property tax foreclosure process for one in four properties in Detroit, Michigan. No other American city has experienced this elevated rate of property tax foreclosures since the Great Depression. Studies reveal that the City of Detroit systematically and illegally inflated the assessed value of most of its residential properties, which led to inflated property tax bills unaffordable to many homeowners. Extraordinary tax foreclosure rates and extensive dispossession resulted. Consequently, Detroit has become a “predatory city”—a new and important sociolegal concept that this Article develops. Predatory cities are urban areas where …

What Is The Value Of Built Heritage? Assessing Spillover Effects Of Conserving Historic Sites In Singapore, Shin Bin Tan, Edward S. W. Ti

Research Collection Yong Pung How School Of Law

Quantifying the economic benefits of built heritage facilitates the formulation and assessment of conservation policies and programs. There is however a lack of empirical research about the economic value of built heritage in Asian cities. This lack is problematic, given the rapid pace of demolition and redevelopment of historic landscapes in Asian cities. This study seeks to reduce the current gap in built heritage research by examining whether real estate premiums are generated by the designation of buildings as ‘conserved’ in Singapore, a city-state in South East Asia. Using 20 years of housing transaction data, and controlling for building, neighborhood …

Legal Issues Affecting Blue Carbon Projects On Publicly-Owned Coastal Wetlands, Read Porter, Cody Katter, Cory Lee

Sea Grant Law Fellow Publications

Coastal wetlands play an important role in sequestering atmospheric carbon, but these ecosystems are under threat from sea level rise, land use conversion, and other causes. Restoration projects in coastal wetlands can provide a range of benefits for habitat and ecosystems, including by increasing sequestration of “blue carbon.” Coastal wetland restoration projects that effectively sequester carbon and meet the requirements of the voluntary carbon market can generate tradeable carbon offsets, which have a monetary value and can be used to finance all or part of the restoration needed to generate them. Blue carbon offsets thus represent a promising tool to …

Falcon Driftwood V. Day Chief, 19-Ap-12 (Blkft. Tr. Ct. App., Jan. 29, 2020), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court resolved a contract dispute for the sale of a trailer, in favor of the Plaintiff after the Respondent failed to make payments and pay insurance for the trailer to the Plaintiff pursuant to the legally binding contract. The Plaintiff retained legal title until such time as Respondent paid for the trailer in full. The Court reversed the lower court determination and ruled that the Respondent is to return the trailer, in the same condition received by the respondent, within 10 days.

Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley

Scholarly Articles

Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of sociallyoriented property theory as they are represented in the analytical framework of doctrines such as …

All For A Fortnight: Calculating Redemption In Default Residential Foreclosures, Alex S. Moe

Loyola University Chicago Law Journal

The Illinois Mortgage Foreclosure Law (IMFL) is a comprehensive statute laying out a single procedure for the entire foreclosure process. Residential foreclosures are dominated by statutory redemption, a seven-month period during which the borrower can pay off the entire loan balance and retain their property. Few borrowers do so, but the redemption period is independently important, for until it expires, a sale of the property--cornerstone of the foreclosure process--cannot occur.

The statutory redemption period starts to run when the borrower has been served. Normally, service occurs at a point certain in time. If service occurs by publication, however, the …

Contract Consentability: Autonomy Threats, Benefits, And Framing, Eric A. Zacks

Law Faculty Research Publications

No abstract provided.

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Faculty Scholarship

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass …

The Law Of The Tetrapods, Henry T. Greely

Vanderbilt Journal of Entertainment & Technology Law

Should there be such a thing as "Technology Law"? This Article explores that question in two ways. It first looks at four substantive issues that appear across many different areas of technology law: privacy, security, property, and responsibility. It then examines five questions that frequently recur about how to regulate very different new technologies. These questions include which agency should regulate, whether regulation should focus on before or after marketing, what jurisdiction should regulate, how relevant new information will be gained and used, and how-politically-good regulation can be enacted. This Article concludes that it may make sense to develop a …

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing the English environment …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Cordes

Northwestern Journal of International Law & Business

Investor-state contracts are regularly used in low- and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how …

Completing The Portrait: Concluding Thoughts About Charles Reich, Rodger D. Citron

Touro Law Review

No abstract provided.

New Challenges To Transboundary Unitization In The Gulf Of Mexico, Isaac Olson

Texas A&M Journal of Property Law

In the last two decades, the search for untapped oil reserves led to many innovations in oil and gas exploration. As new technology continues to open new horizons, oil companies are increasingly able to drill at deeper ocean depths to tap offshore reserves. Offshore drilling poses problems where oil reserves hundreds of miles from shore cross an international boundary line. While American courts typically apply the rule of capture to determine who owns the subsoil resources, international law requires countries to work together to maximize the efficient, safe extraction of the resources. In 2012, the United States and Mexico drafted …

Public Rights After Oil States Energy, Adam J. Macleod

Scholarly Articles

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Virginia, Mason Heidt

Texas A&M Journal of Property Law

This Article addresses developments in Virginia oil and gas law for the period from July 31, 2014 to July 31, 2019. This period is longer than normally addressed by this journal to capture important developments in the law between this update and the last Virginia update published in 2015. At the state level, in Swords Creek Land Partnership v. Belcher, the Supreme Court of Virginia concluded coalbed methane (“CBM”) is a separate and distinct mineral estate from coal. It held that the meaning of “coal” within an 1887 severance deed was unambiguous and did not intend to convey ownership rights …

Wyoming, Walter F. Eggers, Iii

Texas A&M Journal of Property Law

Wyoming currently ranks eighth nationally in both crude oil and natural gas production. In 2018, Wyoming produced 87.9 million barrels of crude oil, up from 75.7 million barrels in 2017. Wyoming produced 1.81 billion MCF (thousand cubic feet) of natural gas, increasing from 1.80 billion MCF produced in 2017.

Egg Donation: What Egg-Xactly Is It? Property Or A Service?, Sally Fritz

Texas A&M Journal of Property Law

The tax characterization of income from human body transfers is a perplexing conundrum. There is no definitive case law or statute that informs taxpayers how to treat these transfers. Legal scholars have discussed the issue of how to treat human body transfers such as eggs, sperm, blood, etc. for decades, and the Internal Revenue Service has still not acted to provide any sort of clarity. This Comment discusses the historical tax implications on various types of human body transfers, outlines some of the distinguishing factors between characterizing a transfer as property or a service, provides an argument for why income …

Pop-Up Potential: The Effect Of Regulatory Laws On The Innovation Of Pop-Up Restaurants, Alexandra Lizano

Texas A&M Journal of Property Law

Pop-up restaurants have risen in popularity over the past decade in the United States. As used in this Comment, a pop-up restaurant is when an existing restaurant space temporarily loans that space to another chef or restaurant for a limited period of time. This Comment seeks to explore the potential benefits and exploit the drawbacks of pop-up restaurants as property solutions in large cities. Pop-up restaurants thrive in the landscape of the sharing economy, and as such, legal scholars pose that it is imperative to understand this new type of economic scheme to efficiently regulate the entities within it. The …