Property Law and Real Estate Commons^™

Regulatory Takings And Wetland Protection In The Post-Lucas Era, Richard C. Ausness

Law Faculty Scholarly Articles

In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.

Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas …

Reforming The State-Enterprise Property Relationship In The People's Republic Of China: The Corporatization Of State-Owned Enterprises, Deborah Kay Johns

Michigan Journal of International Law

Part I of this Note first describes the problems that have prodded China to restructure its SOEs and then explains the root of those problems - the state-enterprise property relationship. This part concludes with a description of the unsuccessful attempts to date to reform that relationship. To understand why these efforts have met with little success, Part II explores the way in which most transition economies have attempted to address the ambiguity in the state-enterprise property relationship, by abolishing it through privatization. Although privatization is neither economically nor ideologically suited to China, experience with privatization does hold one lesson for …

Present And Future Interests: A Graphic Explanation, Roger W. Andersen

Seattle University Law Review

Few topics bedevil more law students than the law of present and future interests. With the goal of eliminating some of the confusion, this Article highlights the basic doctrine with a new set of diagrams to represent graphically how various interests behave. This Article opens with a question many students ask and then proceeds to the core concepts in the law of present and future interests.

Property Rules And Liability Rules: The Cathedral In Another Light, James E. Krier, Stewart J. Schwab

Articles

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

Local Finances: Tribeca Community Association Inc. V. New York State Urban Development Corp.

Touro Law Review

No abstract provided.

Property Rights: A View From The Trenches, Michael A. Heller

Articles

How do governments create - or in some countries recreate - basic property rights that citizens demand in the transition to a market economy? My first comment, quite briefly, is on the debate within this Symposium on the relationship between constitutional reforms and the emergence of new property regimes. Second, I will comment on the counterintuitive property rights regime that is emerging from the "big bang" - the post-1989 collapse of the old socialist legal order in Central and Eastern Europe and the former Soviet Union and its replacement with a new, market-oriented system of property rights.

Of Hotel Revenues, Rents, And Formalism In The Bankruptcy Courts: Implications For Reforming Commercial Real Estate Finance, R. Wilson Freyermuth

Faculty Publications

This article is intended to continue the dialogue begun by the proposed Restatement and has two distinct goals in this effort. Parts I through III argue that the position of the Restatement drafters is both legally and functionally sound and that bankruptcy courts should embrace and apply the proposed Restatement in administering distressed real estate developments. Part I reviews the reasoning articulated in the hotel bankruptcy cases, demonstrating how courts have applied the provisions of the Bankruptcy Code and state law in a formalistic manner to extinguish the hotel mortgagee's lien upon postpetition room revenues. Part II rejects the analysis …

"Property" In The Fifth Amendment: A Quest For Common Ground In The Maze Of Regulatory Takings, David C. Buck

Vanderbilt Law Review

In 1922, the Supreme Court embarked on its first decision to protect property owners from unbridled, uncompensated government regulation. Prior to Pennsylvania Coal Co. v. Mahon, the courts applied the Just Compensation Clause of the Fifth Amendments only to "'direct appropriation[s]' of property ... or the functional equivalent of a 'practical ouster of [the owner's] possession.' " Mahon established that governmental regulation that affects an owner's use of his land may constitute a taking under the Fifth Amendment. In Mahon, Justice Holmes recognized the need for constitutional limits on the government's power to impair certain rights inherent in the ownership …

The Social Origins Of Property, Joseph William Singer, Jack M. Beermann

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Ownership Of Water Rights In Irrigation Water Delivery Organizations: An Outline Of The Major Issues, Jeffrey C. Fereday

Water Organizations in a Changing West (Summer Conference, June 14-16)

33 pages.

Contains footnotes.

Cites For Sore Ears (A Paper Moon), Vaughan Black, David Fraser

Dalhousie Law Journal

Music, as we know, is one of our vital cultural practices. It "has charms to soothe a savage breast" and is "the food of love."' Someone who does not love music is not to be trusted but someone "who has music in his [sic] soul will be most in love with the loveliest." Music and one's attitude towards it tell us a lot about the ethical and moral value of a person. Law, another key part of our culture, has traditionally dealt with music mainly as something which might fall within the domain of copyright or some related field of …

Land Use Control, The Individual, And Society: Lucas V. South Carolina Coastal Council , Robert M. Washburn

Maryland Law Review

No abstract provided.

Mortgage Prepayment Clauses: An Economic And Legal Analysis, Dale A. Whitman

Faculty Publications

Most mortgages on income-producing real estate (as distinct from owner-occupied housing) contain clauses restricting early payment of the loan. These clauses are highly controversial, and borrowers often resist their enforcement. While other writers have discussed prepayment clauses in the recent legal literature, my objectives in this article are to advance this discussion in three respects: first, to provide an economic perspective on mortgage prepayment as support for a set of legal recommendations; second, to consider whether the bankruptcy of the mortgagor should affect enforceability of a prepayment fee clause; and third, to analyze the cumulative effect of the presence in …

Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness

Law Faculty Scholarly Articles

In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …

Thinking Property At Rome, Alan Watson

Scholarly Works

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

Privatization In Germany: A Model For Legal And Functional Analysis, Martin E. Elling

Vanderbilt Journal of Transnational Law

In this Article, Mr. Elling discusses the efforts to restructure and privatize the eastern German economy. The Article focuses on the work of the Trust Agency, or Treuhandanstalt, the agency primary responsible for privatizing property expropriated by the Nazis, the Soviet occupation forces, and the German Democratic Republic. These three regimes expropriated property under varying circumstances, and the Trust Agency now faces the task of determining the appropriate level of compensation or restitution for each property claimant. While the Trust Agency is concerned with awarding just compensation to the rightful property owners, the author notes that Germany designed the privatization …

Property And Liberty Reconsidered, Herman Belz

Vanderbilt Law Review

This perceptive, lucid, and sympathetic account of property rights in American constitutional law by Professor James W. Ely, Jr., is further evidence of the conservative challenge to liberal orthodoxy that has emerged in recent years in American historiography. That the book appears under the cosponsorship of the Organization of American Historians, one of the more militantly liberal scholarly associations in the United States, is a small but significant sign of the changing intellectual climate.

As conceived of in contemporary liberal historiography, protection of individual property rights is but one element of economic liberty. Equally if not more important, according to …

A Bitter Inheritance: East German Real Property And The Supreme Constitutional Court's "Land Reform" Decision Of April 23, 1991, Jonathan J. Doyle

Michigan Journal of International Law

This article briefly examines the principal expropriatory measures undertaken between 1945 and 1989, the agreements between the two German governments relating thereto, and the divisive constitutional issues raised by this fusion of two antithetical legal systems in the area of property law. The text concludes with an analysis of the German Supreme Court's "Land Reform" decision and the juridical controversy surrounding it.

Choice Of Law And Succession To Wealth: A Critical Analysis Of The Ramifications Of The Hague Convention On Succession To Decedents' Estates, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons' is an exceptionally complex document with the avowed purpose of radically altering the choice of law rules in the succession field that have traditionally guided all common law jurisdictions as well as many civil law regimes. To date, the conflicts revolution that has engulfed other fields of law such as contracts and torts has barely intruded into the realm of property and succession law. In large part, this has been attributable to the nearly absolute adherence of judges and legislators to the relatively simple, straightforward …

Tenements And Takings: Tenement House Department Of New York V. Moeschen As A Counterpoint To Lochner V. New York, Judith A. Gilbert

Fordham Urban Law Journal

“The sharp rightward shift in land use law, and particularly in ‘takings’ jurisprudence, in the 1980s prompted anguished responses from advocates of government regulation who characterized the trend as a ‘return to the good old days of Locke and Lochner,’ ‘the Reagan Revolution's Lochnerian [r]eturn,’ ‘a revival of decisions like Lochner,’ ‘origins [in] the set of beliefs associated with the Lochner era,’ and ‘Back to the Future: From Nollan to Lochner.’ Critics were reacting in particular to an ominous alignment in the constitutional heavens: a constellation of United States Supreme Court decisions restricting the ability of state and local governments …

Hud And Housing In The 1990s: Crises In Affordability And Accountability, Michael Allan Wolf

Fordham Urban Law Journal

“Half a century ago, in the Housing Act of 1949, Congress declared optimistically that every American should have access to safe, decent, affordable housing.3 In an effort to realize that ambitious objective, federal lawmakers have devised and bureaucrats have implemented a wide array of housing schemes. One commentator has provided nine categories for what he deems the ‘bewildering variety of housing-related programs:’ 1. a federally regulated mortgage finance system; 2. mortgage insurance; 3. interest rate subsidies to home owners, developers, and landlords; 4. tax deductions for mortgage interest; 5. special depreciation allowances for rental housing; 6. low-rent public housing; 7. …

Eviction Free Zones: The Economics Of Legal Bricolage In The Fight Against Displacement, Lawrence K. Kolodney

Fordham Urban Law Journal

Gentrification, the influx of high-income dwellers into low-income neighborhoods, has in the past decade become a serious cause of concern to low-income tenants in older American cities. Although gentrification has had some positive effects, one important negative effect has been the displacement of existing neighborhood residents. Various schemes have been suggested to combat displacement caused by gentrification. One strategy entails seeking legislative relief in the form of rent control and condominium-conversion laws to directly curb the influx of high-income residents; another makes use of rent vouchers and public housing to ameliorate the effects of displacement. This Article analyzes an alternative …

The Czechoslovak Approach To The Draft Convention On Jurisdictional Immunitites Of States And Their Property, Vladimir Balaš, Monika Pauknerová

Michigan Journal of International Law

This article deals with four issues: (1) The effort of the International Law Commission of the United Nations to codify jurisdictional immunity. (2) The theoretical and practical Czechoslovak approach toward the institution of jurisdictional immunity of States and the Draft Convention, and a prediction of possible change of the Czechoslovak view. (3) The changing views of East European scholars. (4) An analysis of particular provisions of the Draft Convention with respect to their acceptability by States with different socioeconomic systems and especially by Czechoslovakia.

Eviction Free Zones: The Economics Of Legal Bricolage In The Fight Against Displacement, Lawrence K. Kolodney

Fordham Urban Law Journal

Gentrification, the influx of high-income dwellers into low-income neighborhoods, has in the past decade become a serious cause of concern to low-income tenants in older American cities. Although gentrification has had some positive effects, one important negative effect has been the displacement of existing neighborhood residents. Various schemes have been suggested to combat displacement caused by gentrification. One strategy entails seeking legislative relief in the form of rent control and condominium-conversion laws to directly curb the influx of high-income residents; another makes use of rent vouchers and public housing to ameliorate the effects of displacement. This Article analyzes an alternative …

Hud And Housing In The 1990s: Crises In Affordability And Accountability, Michael Allan Wolf

Fordham Urban Law Journal

“Half a century ago, in the Housing Act of 1949, Congress declared optimistically that every American should have access to safe, decent, affordable housing.3 In an effort to realize that ambitious objective, federal lawmakers have devised and bureaucrats have implemented a wide array of housing schemes. One commentator has provided nine categories for what he deems the ‘bewildering variety of housing-related programs:’ 1. a federally regulated mortgage finance system; 2. mortgage insurance; 3. interest rate subsidies to home owners, developers, and landlords; 4. tax deductions for mortgage interest; 5. special depreciation allowances for rental housing; 6. low-rent public housing; 7. …

Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court in several recent cases has flirted with the notion that labor gives one an entitlement to ownership: a legal right to bar others from the fruits of that labor or to extract payment from them if they use the fruits without permission. Sometimes articulated in terms of "natural rights," and sometimes in terms of "fairness," this notion is at apparent odds with contract law's insistence that the only "fruits of labor" one is obligated to pay for are those one has agreed in advance to buy.

Galbreath V. Galbreath, 81-Ca-27 (Blkft. Ct., August 2, 1990), Blackfeet Tribal Court

Court Decisions

In the Blackfeet Trial Court, in a land ownership dispute between a mother and son, where the son made loan payments on land prior to his father's death, the court determined that without documentation of an agreement for the loan or gift of money, and without testimony of disinterested witnesses, the law will presume gratuity. Nelson v. Wilson, 81 Mont. 560, 569; 264 P. 679, 682 (1928). The court reasoned that a person cannot become indebted without their knowledge or consent to debt. Plaintiff did not pay the purchase price for the Real property. The real property will remain the …

A Capital Tax System To Preserve America's Heritage, Valerie M. Fogleman

Vanderbilt Journal of Transnational Law

This Article looks to the British national heritage capital tax system as a model to propose provisions in the United States Internal Revenue Code to aid in preserving the United States cultural and natural heritage. After an overview of the capital tax systems in Britain and the United States, Ms. Fogleman examines features of the British tax system that promote preservation of the national heritage. The British system conditionally exempts the owners of national heritage assets from estate or gift tax liability on the transfer of those assets in exchange for permitting public access to and maintaining the assets; allows …

Transfers Of Property In Eleventh-Century Norman Law, William John Gallagher

Michigan Law Review

A Review of Transfers of Property in Eleventh-Century Norman Law by Emily Zack Tabuteau

Timesharing And Realty Interests Under The Martin Act: Consumer Or Investor Protection?, Yvette C. Mendez

Fordham Urban Law Journal

This Note will explore the property interests created by timeshare licenses in New York, advocating that a participation interest in realty is created and that the Martin Act is applicable to these licenses. Part II discusses the interests created by timeshare licenses as they relate to the real property concepts of license and lease. Part III examines the provisions and purpose of the Martin Act and the application of the profit potential theory to define the realty interests requiring the Act's protection. Part IV advocates legislative and case law alternatives to the New York "profit potential" approach. As a case …