Property Law and Real Estate Commons^™

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Forfeiture Takings, Police Power, And Necessity Destruction, Shelley Ross Saxer

University of Miami Law Review

Civil forfeiture laws allow law enforcement to seize property when there is probable cause it has been used or possessed in violation of legal rules, often before an owner has a chance to contest the government’s seizure in court. In the criminal context, forfeiture is typically an in personam action that requires a criminal conviction and is part of a defendant’s sentence. In the civil context, however, forfeiture is an in rem proceeding brought against the property derived from or used to commit an offense––not against the person who committed the offense. As such, a civil forfeiture may not require …

Getting Our House In Order: Mapping The Unconstitutional Conditions Doctrine Onto Washington’S Inclusionary Zoning Policies After Sheetz V. County Of El Dorado, John “Jack” Haskins

Washington Law Review

The unconstitutional conditions doctrine dictates what a government can and cannot do when exercising its police powers to promote community interests. Recent Supreme Court jurisprudence highlights a special application of the doctrine in the land use context, with Sheetz v. County of El Dorado recognizing constitutional scrutiny of legislative decisions. After decades of using its own analysis, Washington courts now use the federal approach in these cases. Land use exists at the forefront of Washington policies and the state maintains a sharp focus on the affordable housing crisis. One approach enacted at the local and state level is mandatory inclusionary …

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

Not Everything Has To Be A Taking: Tyler V. Hennepin County, Maryann Herman

Duquesne Law Review

In Tyler v. Hennepin County, we see the United States Supreme Court's continuation of the strengthening of individual property rights. The Court endeavored to address two issues in this case: 1) whether the seizing and selling of property to satisfy a tax debt without returning the surplus violates the Takings Clause; and 2) whether the forfeiture of the surplus resulting from a tax sale is an excessive fine under the Eighth Amendment. The Court answered the first question in the affirmative and, thus, did not address the second question.

The Legal Crisis Within The Climate Crisis, Mark P. Nevitt

Faculty Articles

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm’s way; and (4) reactively moving people to new locations …

What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

The Power Of State Legislatures To Invalidate Private Deed Restrictions: Is It An Unconstitutional Taking?, Ken Stahl

Pepperdine Law Review

Over the past several years, state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations (HOAs). In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs, and flags, California has moved much …

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 …

A Cost To Bear—Environmental Contamination And Eminent Domain, Evan C. Heaney

Seattle University Law Review

This Note advocates for Washington courts to adopt a system that universally allows evidence of environmental contamination on the private property taken in eminent domain proceedings. Part I of this Note discusses the history and progression of eminent domain and the broader constitutional roots of the Takings Clause. Part II explores Washington’s environmental remediation statute. Part III details the various approaches jurisdictions around the county have formulated to deal with this issue. Part IV argues Washington courts should adopt the inclusionary approach, which allows the introduction of environmental evidence in eminent domain proceedings.

Rethinking "Just" Compensation: Dignity Restoration As A Basis For Supplementing Existing Takings Remedies With Government-Supported Community Building Initiatives, Alyssa M. Hasbrouck

Cornell Law Review

Longstanding calls for the Supreme Court to revisit the Takings Clause's just compensation requirement are especially relevant in light of urban renewal's destructive history. However, the just compensation requirement should be viewed as a floor, not as a ceiling. Even in the absence of formal action by courts, legislatures and local governments can act to fulfill the government's constitutional obligation of "full and perfect" compensation. By taking preemptive action to support community-based initiatives, financially as well as politically, the same legislatures that seized and destroyed urban neighborhoods can begin to set things right. Court-ordered investments in the longterm well-being of …

Choice Of Law In Takings Cases, Thomas W. Merrill

Faculty Scholarship

This Article considers what law should apply in resolving subsidiary questions that arise in the course of deciding takings cases under federal constitutional law. It argues that there are three choices: federal constitutional law, state law, or a federal-patterning definition that lays down certain general parameters as a matter of federal constitutional law but otherwise follows state law if it is consistent with these parameters. The article illustrates these choices by considering a recent Supreme Court decision, Murr v. Wisconsin, which held that the horizontal dimensions of a “parcel of land” should be determined, for takings purposes, as a …

Martin V. United States, Mitch L. Werbell V

Public Land & Resources Law Review

In Martin v. United States, the Federal Circuit Court dismissed a Fifth Amendment regulatory takings and exaction claim for want of ripeness when the claimant failed to apply for a permit, which would have allowed for an assessment of the cost of compliance with governmentally imposed requirements. By finding the claim unripe, the court stood firm on the historical view that federal courts may only adjudicate land-use regulatory takings and inverse condemnation claims on the merits after a regulating entity has made a final decision. However, jurisprudential evolution of the ripeness doctrine and judicial review of takings claims may …

Taking Back Bitcoin, Zachary Segal

Touro Law Review

No abstract provided.

Non-Enforcement Takings, Timothy M. Mulvaney

Faculty Scholarship

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution's Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same "fairness and justice" grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly …

The Fiscal Illusion Zombie, Christopher Serkin

Vanderbilt Law School Faculty Publications

This is a Response to Bethany R. Berger's recent Article, The Illusion of Fiscal Illusion in Regulatory Takings. In that Article, Professor Berger argues against the view that governments should be forced to compensate for regulatory burdens because they suffer from fiscal illusion and will only internalize the costs that they, in fact, have to pay. She demonstrates that property taxes already provide a mechanism through which governments internalize both the costs and benefits of their property regulations, and that compensation for regulatory takings is therefore unnecessary and even perverse for creating efficient regulatory incentives. This Response argues that she …

The Essential Structure Of Property Law, James Y. Stern

Michigan Law Review

This Article examines a characteristic of property entitlements fundamental to the structure of property systems that has received scant academic attention, a characteristic referred to as the mutual exclusivity principle. According to this principle, a property system does not allow for the existence of incompatible rights. Two people cannot separately be the owners of the same resource, for instance. By contrast, two people can each hold valid but contradictory contract rights to the resource. Although the existing property literature has stressed the “exclusive” nature of property, the various ways in which property is imagined to be exclusive, such as by …

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Taking The Oceanfront Lot, Josh Eagle

Indiana Law Journal

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the …

Palazzolo V. Rhode Island: The Supreme Court’S Expansion Of Subsequent Owner's Rights Under The Takings Clause, Leon D. Lazer

Touro Law Review

No abstract provided.

When Scalia Wasn't Such An Originalist, Michael Lewyn

Touro Law Review

No abstract provided.

Anticipatory Remedies For Takings, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court's most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin

Michigan Law Review

The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgage Loans, Katharine Roller

Michigan Law Review

One of the most visible and devastating components of the financial crisis that began in 2007 and 2008 has been a nationwide foreclosure crisis. In the wake of ultimately ineffective attempts at federal policy intervention to address the foreclosure crisis, a private firm has proposed that counties and municipalities use their power of eminent domain to seize “underwater” mortgage loans—-mortgage loans in which the debt exceeds the value of the underlying property—-from the private securitization trusts that currently hold them. Having condemned the mortgage loans, the counties and municipalities would reduce the debt to a level below the value of …

The Abnormalcy Of Normal Delay, Kimberly Horsley

Pepperdine Law Review

No abstract provided.

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

Scholarly Works

No abstract provided.

Existing Uses And The Limits Of Land Use Regulations, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article identifies property law's special protection for existing uses, explores possible justifications for this protection, and argues that none can support the strong protection that existing uses currently enjoy. Various land use doctrines- from zoning to the vested rights doctrine to amortization rules for prior noncon- forming uses--assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Norma- tively, many obvious-seeming justifications dissolve on closer …