Property Law and Real Estate Commons^™

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

The English Law Doctrine Of Proprietary Estoppel And The Extent To Which It Could Be Applied In Jordanian Law, Zaid Muhmoud Al-Aqaileh

UAEU Law Journal

The English law doctrine of proprietary estoppel is an equitable doctrine that represents the intervention of equity to mitigate the strictly harsh rules of the statute, and to create new proprietary rights in land, even in the absence of any formal requirements. In Jordanian law, proprietary rights in land cannot be created informally, i.e. in the full absence of the needed formalities, and Jordanian courts cannot admit mere promises, or assurances, as a means of creation of such rights. This article has examined the feasibility of the operation of the doctrine of proprietary estoppel, or a similar doctrine, in Jordanian …

Revisiting Background Principles In Takings Litigation, Michael C. Blumm, Rachel G. Wolfard

Florida Law Review

Libertarian property rights enthusiasts celebrated the United States Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council as a landmark decision that would revolutionize interpretation of the Constitution’s takings clause and finally fulfill its potential as a vehicle for deregulation. Over a quarter-century later, the Lucas decision has failed to meet those expectations. A major reason is that Justice Antonin Scalia’s opinion created an exception that effectively swallowed the rule that Lucas established.

Lucas held that land use regulations whose effect on landowners’ property produced a total loss of economic value were per se categorical takings. However, Justice …

Emergency Excuse In Lease Contracts And The Nature Of Its Relationship With The Theory Of Emergency Circumstances: A Comparative Study, Adel Mohammed Ali

UAEU Law Journal

After concluding the contract, certain circumstances may appear and make the execution of the contract so difficult to one of the contract parties. These circumstances are in many kinds different, in the extent of the contracts that they appear in them, as well as the fact that they are different in their impact on the contracts under the laws in general. This situation applies on both of emergency excuses in lease contracts and the theory of emergency circumstances.

This study is divided into two parts; in the first part, we studied the subject of emergency excuses in the lease contract …

The Wall That Trumps Environmental Law: A Review Of The Environmental And Legal Implications Of The U.S.-Mexico Border Wall, Olivia Merritt

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Bankruptcy & The Underwater Home: A Case For Real Property Redemption, David Sheinfeld

Michigan Business & Entrepreneurial Law Review

Chapter 7 of the U.S. Bankruptcy Code exists to satisfy the claims of creditors and preserve an economic “fresh start” for the debtor after bankruptcy. In exchange for surrendering her property to the trustee to have it monetized (i.e., sold), the debtor receives a discharge of her debts and an injunction against future creditor in personam actions to recover them. However, the in personam injunction is insufficient to protect consumer debtors who are in default on mortgages encumbering underwater homes because the creditor’s in rem rights remain; after the conclusion of the case, the creditor can continue foreclosure proceedings, which …

The Importance Of Viewing Property As A System, Lynda L. Butler

Faculty Publications

Can--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its …

Masters Of Their Own Domains: Property Rights As A Bulwark Against Dns Censorship, Nicholas Nugent

Scholarly Works

It is increasingly becoming the practice of domain name system (DNS) intermediaries to seize domain names used by lawful websites for violating acceptable use policies related to offensive content or hate speech. Website hosting companies and social media platforms, entities that use but do not operate core Internet infrastructure, have long reserved and exercised their rights to gate their offerings, leaving booted speakers free to migrate to other providers. But registrants deprived of their domain names lack similar options to maintain their presence in cyberspace. The loss of a domain name inexorably results in the takedown of any website that …

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

Sturm College of Law: Faculty Scholarship

This essay is taken from a talk given at a symposium discussing Professor Ken Stahl’s book, Local Citizenship in a Global Age. 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; spaces of …

Mineral And Air Rights, Alvin Wade

Extension Publications

No abstract provided.

Book Review: Hanoch Dagan, A Liberal Theory Of Property (2021), Ezra Rosser

Book Reviews

Property law does not require an introduction. We deal with property on a daily basis by purchasing and hiring goods, selling financial instruments, renting flats, owning clothes, and registering patents. Each one of us owns or possesses some type of property. Law enters the picture to govern the interpersonal relationships between the people in relation to property objects. A work that offers a full-blown global normative account of property law deserves special attention; it is relevant for each one of us. Professor Dagan’s A Liberal Theory of Property (‘LTP’) is indeed such a work.

This review consists of three parts. …

Embedded Property, Douglas C. Harris

All Faculty Publications

The institution of property arises in the tension between autonomy and community. It serves not simply to demarcate spaces of individual control and authority, but also to balance individual with collective interests. Private property and common property emphasize individual and collective interests, respectively, but the bifurcation may not be as stark as it appears. Condominium constructs separate titles to individual units, and these private interests are carefully mapped in a constituting plan that marks their boundaries. Democratic rights, usually conveyed in the form of shares in a condominium corporation, are the third element of ownership within condominium. The analysis reveals …

Reading The Illegible: Can Law Understand Graffiti?, Katya Assaf-Zakharov, Tim Schnetgoke

Connecticut Law Review

This essay focuses on graffiti—the practice of illegal writing and painting on trains, walls, bridges, and other publicly visible surfaces.

Social responses to graffiti are highly ambivalent. On the one hand, media often picture graffiti painters as “vandals” and “hooligans.” Local authorities define graffiti as an “epidemic” and declare “wars on graffiti.” On the other hand, graffiti is recognized as a valuable form of art, exhibited in mainstream museums sold for high prices. Reflecting the ambivalent social attitude, the legal treatment of graffiti is highly uneven, punishing some graffiti writers for vandalism while granting copyright protection to others.

Scholars have …

What Makes Property Liberal?, Adam J. Macleod

Scholarly Articles

Hanoch Dagan is offering to help an institution that is in the midst of an identity crisis. For many centuries, property has found its identity in service to liberty. Liberty – both broadly construed as a practical ideal and in the technical sense of a Hohfeldian right that is the absence of duty – stood for independence from outside interference and freedom to act upon one’s own plans of action for the use and management of resources, individually and in community with those who share the same common goods. Though many people still think liberty in that sense is important, …

Horses, Humans, And The Law: A Study Of Four Pillars Of Support For Horse Ownership, Elaine M. Ramesh

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Properties Of Intimacy, Emily J. Stolzenberg

Maryland Law Review

No abstract provided.

Looking Toward Restorative Justice For Redlined Communities Displaced By Eco-Gentrification, Helen H. Kang

Michigan Journal of Race and Law

MJEAL chose to publish Helen Kang’s piece, Looking Toward Restorative Justice for Redlined Communities Displaced by Eco-Gentrification, because it offers a unique analytic approach for analyzing the roots of environmental racism and the appropriate tools to help rectify it. She offers an argument for why restorative justice needs to be the framework and explains how we can accomplish this in the context of a whole government solution. MJEAL is excited to offer what will be an influential approach for environmental restorative justice to the broader activist and academic community.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents.

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

God Is My Roommate? Tax Exemptions For Parsonages Yesterday, Today, And (If Constitutional) Tomorrow, Samuel D. Brunson

Indiana Law Journal

In 2019, the Seventh Circuit decided an Establishment Clause question that had been percolating through the courts for two decades. It held that the parsonage allowance, which permits “ministers of the gospel” to receive an untaxed housing allowance, does not violate the Establishment Clause of the Constitution. It grounded its conclusion in part on the “historical significance” test the Supreme Court established in its Town of Greece v. Galloway decision.

In coming to that conclusion, the Seventh Circuit cited a 200-year unbroken history of property tax exemptions for religious property. According to the Seventh Circuit, that history demonstrated that both …

Clark V. Buttonwoods Beach Association., 226 A.3d 683 (R.I. 2020), Brooke E. Pearsons

Roger Williams University Law Review

No abstract provided.

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

This article is a survey of the relevant developments in real property law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf

UF Law Faculty Publications

Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Market-Anticipatory Approaches To Rural Property Vacancy, Ann M. Eisenberg

Faculty Publications

No abstract provided.

Climate-Induced Human Displacement And Conservation Lands, Jessica Owley

Articles

As climate change leads to both internal displacement and mass migrations, we need not only new places for people to live but also new locations for infrastructure projects and other public needs. Some of the most attractive areas for these new land uses are currently unoccupied land, including land set aside for conservation. Numerous laws restrict the availability and possible uses of public conservation land. Individual agreements and property restrictions encumber private conservation land, varying in the ease with which the restrictions can be modified. For example, privately protected areas in the United States are often encumbered with perpetual conservation …

Notes From The Periphery: Finding More Than (Non)Ownership In Property Law?, Estair Van Wagner

Articles & Book Chapters

Property law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes, but is also shaped by, our relationships with the places we inhabit and encounter. Traditionally, non-owners are defined by their distance and exclusion from the primary legal relationship and their lack of enforceable interests. Yet, land use conflicts continue to arise because people routinely assert relationships with land and resources that they are not formally recognised as owning but with which they are deeply entangled. This chapter touches briefly on three examples: the relations of Indigenous …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Property Rights: Fiercely Contested, Strongly Guarded, And Continually Defended. How The Supreme Court's Decision In Cedar Point Emphasized The Court's Devotion To Private Property Rights, Sarah Haddon

American University Law Review

In 1975, California’s Agricultural Labor Relations Board (the “Board”) enacted a regulation allowing union organizers to access agricultural employers’ private properties “for the purpose of meeting and talking with employees and soliciting their support” (the “access regulation”). The access regulation does not require the union organizers to obtain consent before entering employers’ properties; instead, union organizers must only file a “written notice of intention to take access.” The notice provides the union organizers access to an employer’s property for three hours a day up to 120 days each year during the hour before the workday, during lunch, and after the …

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …