Property Law and Real Estate Commons^™

Blockchain Real Estate And Nfts, Juliet M. Moringiello, Christopher K. Odinet

Faculty Scholarship

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.

In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized …

Seeing Like A Chocolate City: Reimagining Detroit’S Future Through Its Past, Sheila R. Foster

Georgetown Law Faculty Publications and Other Works

This essay is part of an online symposium on Michelle Wilde Anderson's “The Fight to Save the Town.” In it, Anderson captures how the rise and fall of Detroit maps onto so many other important cultural, political, social, and economic moments of the twentieth century. As Anderson rightly notes, many of the ways in which the city’s history is commonly told represent a “white gaze on Detroit.” What this narrative often leaves out is the critical role of the Black middle and professional class in stabilizing or holding up the city during the period often associated with the city’s decline. …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

Law Faculty Scholarship

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine-the reasonable expectation of privacy teststruggles with conceptual clarity and predictability. The Supreme Court's recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the "maximalist" property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law-what …

Alabama Association Of Realtors V. Department Of Health And Human Services, Adam B. Mcdonald

Tennessee Law Review

No abstract provided.

The Wolf In Sheep's Clothing: How Historical And Blight Designations In The Absence Of Constitutional Safeguards Can Render Property Rights Illusory, Kyle B. Teal, Dane L. Stuhlsatz

St. Thomas Law Review

This article summarily analyzes those more subtle forms of property rights infringement, including historical designations and blight designations, and it critiques laws in place that purport to grant local government the authority to assert such designations. This article also provides a summary of the causes of action owners aggrieved by unjust designations could bring in response, and critiques the flaws in those elective safeguards, which are prevalent even in property rights friendly jurisdictions such as Florida. It then proposes high-level solutions to enact legislation to limit fee exposure for property owners who bring inverse condemnation actions and Bert J. Harris …

The Mexican Civil Code Of 1928 And The Social Function Of Property In Mexico And Latin America, M.C. Mirow

Emory International Law Review

No abstract provided.

Crypto In Real Estate Finance, R. Wilson Freyermuth, Christopher K. Odinet, Andrea Tosato

Faculty Publications

Blockchain and cryptocurrencies have ushered in a digital gold rush. But all that glitters is not gold. The latest fad is the use of non-fungible tokens (NFTs) to purchase and finance real estate. Typically, crypto real estate transactions begin with the transfer of title for a residential property into a dedicated business entity, such as a limited liability company. Thereafter, an NFT is ‘minted’ and used to represent the ownership interest in that entity. The real property is then marketed online specifying that, to acquire it, one simply purchases the relevant NFT via a blockchain transfer. Crucially, buyers are expected …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

SMU Law Review

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what …

Ad Coelum And The Design Of Property Rights, Joseph Schremmer

Faculty Articles

This Article seizes on a specific doctrinal discussion in Eric Claeys's Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys's discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …

Resulting And Constructive Trusts In The Contemporary Singaporean Family Context, Man Yip

Research Collection Yong Pung How School Of Law

The legal rules that emerge in a society are shaped by the conditions of that society. In the area of trusts law, this chapter argues that the English principles of the presumed resulting trust and the common intention constructive trust have been adapted to suit the Singaporean family context. At first sight, given that Singapore law has declined to follow the Stack v Dowden line of developments that have taken place in English law concerning beneficial ownership of family property, it may appear that Singapore trusts law is more conservative and that pre-Stack English law is better preserved on Singapore …

Infrastructure Sharing In Cities, Sheila Foster

Georgetown Law Faculty Publications and Other Works

In this Essay, I reflect on the different ways in which cities engaged in what I call “infrastructure sharing” during the COVID-19 pandemic. Cities around the world responded to the pandemic by repurposing their streets and sidewalks into outdoor seating, dining spaces, and car-free pedestrian corridors. At the same time, many cities and states also faced calls to “reclaim” underutilized public and private structures like empty houses and hotels and put them to a use responsive to the crisis. The Essay will highlight the difference between sharing property and assets that are part of the “public estate” and dedicated exclusively …

Federal Historic Preservation's "Place" In Property Theory, Sam W. Gieryn

Pace Environmental Law Review

Progressive Property Theory scholars often point to historic preservation as an example of how property, itself, imposes an obligatory use. A historic structure’s public benefit justifies restrictions in available uses. To date, however, Progressive Property Theory has considered historic preservation only as it is applied in state and local regimes, forgoing an analysis of the federal structure under the National Historic Preservation Act. This article establishes a synergy between the underlying principles of Progressive Property Theory and federal historic preservation and suggests that federal historic preservation’s identification and incentivization structures model a process that could move Progressive Property Theory toward …

Strata Plan Cancellations In Australasia: A Comparative Analysis Of Nine Jurisdictions, Seng Wei, Edward Ti

Research Collection Yong Pung How School Of Law

A growing number of Australasian jurisdictions now permit a supermajority of owners to terminate a co-owned building scheme allowing proprietors to redevelop, or more commonly, sell the underlying land. This planning tool aids municipal rejuvenation, prevents urban sprawl and provides new housing. In this paper, I examine the provisions pertaining to cancellation of unit plans under nine jurisdictions – New Zealand and all eight jurisdictions in Australia. This comparative analysis highlights several unique aspects of the Unit Title Act 2010 (NZ) such as the way its voting thresholds are calculated and the idiosyncratic application of the ‘just and equitable’ standard …

Comparative Lessons In Sectional Title Laws: Mitigating Urban Inequality In South Africa, Edward S. W. Ti

Research Collection Yong Pung How School Of Law

Urban inequality in South Africa is a formidable problem that is linked to the injustices of its historical apartheid past. This paper identifies sectional titles, a form of property ownership where proprietors wholly own their apartment unit while co-owning the land and common property, as critical to providing more affordable housing. Sectional title schemes mitigate urban inequality by giving a greater proportion of the country the opportunity to own legally secure, well-located dwellings while serving as a platform where communal living could take place. Two suggestions how sectional title legislation can further alleviate aspects of urban inequality are made (1) …

What Property Does, Christopher Serkin

Vanderbilt Law Review

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

The History Wars And Property Law: Conquest And Slavery As Foundational To The Field, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article addresses the stakes of the ongoing fight over competing versions of U.S. history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely …

Opportunity Zones, 1031 Exchanges, And Universal Housing Vouchers, Brandon Weiss

Scholarly Articles in Law Reviews & Journals

The Tax Cuts and Jobs Act of 2017 contained former President Trump's signature economic development initiative: the Opportunity Zone program. Allowing a deferral of capital gains tax for certain qualifying investments in low-income areas, the Opportunity Zone program aims to spur economic development by steering capital into economically distressed neighborhoods. The program is the latest iteration of an overly simplistic market-based approach to community development an approach that transcends political party-based on a flawed yet enduring notion that mere proximity of capital will solve deeply entrenched issues of poverty and racial inequality. In reality, the legacy of Opportunity Zones is …

Reshaping Washington's Public Lands Trust Doctrine, Audrey Bell

Selected Articles on Washington State Constitution History

In this paper, I will discuss how Washington state’s trust duties related to federally-granted public lands management have and have not been reconciled with article XVI, section 1 of the Washington constitution. First, I will provide a foundation for the management of federally-granted public lands and the storied history of Congress's intent in providing land grants to the states. Next, I will examine the provisions of the Enabling Act of 1889 ("Enabling Act") and the Washington constitution that govern the management of those granted lands. Third, I will chart the historical treatment of Washington state trust duties related to the …

A Unifying Doctrine Of Subsurface Property Rights, Joseph Schremmer

Faculty Articles

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

Property Prohibitions: Why Criminalizing Prostitution Violates Constitutional Guarantees, James J. Bernstein

University of San Francisco Law Review

No abstract provided.

Firpta Repeal: The United States’ Post-Pandemic Economic Solution To Infrastructure Reform, Adam Mazin

University of San Francisco Law Review

No abstract provided.

What Property Does, Christopher Serkin

Vanderbilt Law School Faculty Publications

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

Waste And The Governance Of Private And Public Property, Tara Righetti, Joseph Schremmer

Faculty Articles

Common law waste doctrine is often overlooked as antiquated and irrelevant to modern law as a result of contract, corporate law, trust and estate planning, and public law. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just an historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, the …

The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …

Equality And Closure: The Paradox Of Local Citizenship, Kenneth A. Stahl

Texas A&M Journal of Property Law

In Bourgeois Utopias, a cultural history of suburbia in America, Robert Fishman states the fundamental paradox about the suburbs: “[H]ow can a form based on the principle of exclusion include every-one?” The promise of the American suburb was that every middle-class family would be able to own a home with a yard, but this egalitarian ideal was illusory because what made the suburbs appealing was precisely what it excluded, namely everything having to do with the city—its congestion, political corruption, and most importantly, its racial diversity. And so, as suburbia was mass-produced and made avail-able with cheap low-interest loans …

Questions Of Citizenship And The Nature Of "The Public", Sarah Schindler

Texas A&M Journal of Property Law

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age.1 It is not a traditional book review, but rather a series of musings inspired by the ideas in the book.

Professor Stahl’s new book, Local Citizenship in a Global Age, addresses a number of important issues, many of which have been the focus of my prior work: the existence of boundaries, borders, and the spaces in between; who we include in those boundaries and who we exclude; public space, private space, and the lines between them; …

Liberalism, Patriotism, And Cosmopolitanism In Local Citizenship In A Global Age, Eric R. Claeys

Texas A&M Journal of Property Law

In this review Essay, I survey the most valuable lessons from Local Citizenship in a Global Age. But I have some reservations about the book, and I want to mark those off as well. The book comes off as critical of views that seek to control immigration and to establish relatively demanding criteria for noncitizens to become citizens. In my view, two factors contribute to this impression, and the book would have been more satisfying if both had been addressed.

The Dream Of Property Professors, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Michael Heller and James Salzman's new book, Mine! How the Hidden Rules of Ownership Control Our Lives, is a dream come true for property professors.

I suspect that many of us have moments when we think to ourselves, "wow, this stuff is really interesting," imagining that property law could somehow be of general interest. Too often that dream is killed when the eyes of non-lawyers, including family members, start to glaze over when they hear words like rule against perpetuities or trademark. Heller and Salzman have succeeded in making the stories property professors tell the stuff of a bestseller. They …

Municipal Optimization Of Short-Term Rental Regulations: The Reality Of Airbnb In South Texas Communities, Kenneth M. Culbreth Iii

St. Mary's Law Journal

Abstract forthcoming.

Reimagining Postmortem Conception, Kristine Knaplund

Georgia State University Law Review

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one’s gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents.

And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. …