Property Law and Real Estate Commons^™

Sharing Is Caring: Regulating Rather Than Prohibiting Home Sharing In Wisconsin, Apallonia C. Wilhelm

Marquette Law Review

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Pawlik V. Deng, 134 Nev. Adv. Op. 11 (Mar. 1, 2018) (En Banc), Will T. Carter

Nevada Supreme Court Summaries

The Court held NRS 271.595 creates two redemption periods; one of two years and one of 60-days. The 60-day notice and redemption period must follow the two-year period and cannot run concurrently.

Don’T Let The Bed Bugs Bill: Landlord Liability For Bed Bug Infestations In Georgia, Megan M. Harrison

Georgia State University Law Review

Although the historical relationship between bed bugs and humans dates back to ancient Egypt, the common bed bug, or Cimex lectularius, vanished from the beds of Americans around World War II. In the late 1990s, however, our bloodsucking bedfellows returned. Bed bug infestations are a growing public health issue. Bed bugs are now found in all fifty states, with populations in five states reaching epidemic levels. Both the Environmental Protection Agency (EPA) and the Center for Disease Control and Prevention(CDC) consider bed bugs a “pest of significant public health importance."

Despite their name, bed bugs are not limited to …

O'Donovan V. Mcintosh: Changing The Contours Of Maine's Easement Law, Michael J. Polak

Maine Law Review

In O'Donovan v. McIntosh, a real estate developer, Timothy O'Donovan, brought an action seeking, in part, a declaratory judgment concerning the transferability of an easement that he purchased from the defendant, John A. McIntosh, Jr. O'Donovan and McIntosh subsequently filed a joint motion for partial summary judgment to obtain a ruling that would affirm the assignability of the easement in question. Susan Huggins, the owner of the servient estate upon which the easement in question imposed, objected to this motion as a third party defendant. She filed a cross-motion for summary judgment maintaining that the easement in question was not …

The Law Of Taking Elsewhere And, One Suspects, In Maine, Orlando E. Delogu

Maine Law Review

The debate as to the meaning of the Taking Clause in the Fifth Amendment of the United States Constitution seems unending. This short, almost cryptic constitutional provision, “nor shall private property be taken for public use, without just compensation,” has over the years given rise to both court challenges and philosophic debate aimed at parsing out the meaning and parameters of this language. As the need for regulatory controls (imposed by every level of government) has increased, the number of challenges and the stridency of the debate has also increased. Moreover, these challenges have increasingly found their way to the …

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Maine Law Review

In his well-known article, Property, Speech, and the Politics of Distrust, Professor Richard Epstein—a leading contemporary voice in the fields of property theory and constitutional law—makes a simple but compelling argument. There has been, he argues, a mistake in “the dominant mode of thinking about property rights during the past fifty years [that] has been ... of constitutional dimensions.” This mistake, in Professor Epstein's view, is the refusal of the federal courts to accord to individual property rights the same kind of protection from government regulation that is accorded to other constitutional rights. Using free speech as his example, Professor …

Life In No Trump: Property And Speech Under The Constitution, Richard A. Esptein

Maine Law Review

The editors of the Maine Law Review have been kind enough to offer me the opportunity to respond to Laura Underkuffler's criticism of my work in her recent Godfrey Lecture, “When Should Rights ‘Trump’? An Examination of Speech and Property,” which appears in the preceding issue. In my earlier writings on constitutional law, more specifically, in my paper, Property, Speech and the Politics of Distrust, I took the position that modern Supreme Court jurisprudence had taken a turn for the worse insofar as it used different standards of review in passing on the constitutionality of legislation. The current position, roughly …

Tax Increment Financing In Maine, Michael G. Walker

Maine Law Review

Tax Increment Financing ("TIF") is a statutorily authorized mechanism which enables municipalities to earmark the property tax revenue from designated areas to pay for things such as infrastructure improvement. Lately, Maine municipalities have been using TIF to refund tax revenues directly to private developers in an effort to attract new business. This Comment will begin by briefly explaining the development of TIF in the United States and how it has evolved over time. It will then summarize how TIF works in Maine and the criticism and praise it has received throughout its existence. Next, it will look at research examining …

No Need For Cities To Despair After Bank Of America Corporation V. City Of Miami: How Patent Law Can Assist In Proving Predatory Loans Directly Cause Municipal Blight Under The Fair Housing Act, Jesse D.H. Snyder

Maine Law Review

Lack of sanguinity for cities was manifest after the Supreme Court’s May 1, 2017, opinion in Bank of America Corporation v. City of Miami. Although Bank of America recognized that cities have Article III standing to sue for economic injuries suffered from predatory lending, the Supreme Court rejected the Eleventh Circuit’s more lenient causation standard, favoring proof of “some direct relation between the injury asserted and the injurious conduct alleged.” Doubtless the result could have been worse for cities suing on the premise that racially discriminatory lending caused municipal blight. The courthouse doors could have closed if the Court had …

Sfr Inv.'S Pool 1, Llc V. First Horizon Home Loans, 134 Nev. Adv. Op. 4 (Feb. 1, 2018), Brendan Mcleod

Nevada Supreme Court Summaries

The Court determined that, under provisions of NRS 116.31162, when an HOA records a notice of a foreclosure sale, any subsequent buyer who purchases the property is subject to that notice that a foreclosure may be imminent.

Conditions Of Personhood And Property, Zachary James Acree

Dissertations, Theses, and Capstone Projects

This paper seeks to demonstrate that a more robust understanding of personhood both reveals flaws in the underlying assumptions of modern property law, and orients that law to a more just application. To do this, the law needs not only a better definition of what persons are, but also a better understanding of how persons function in their society. First, in order to provide some context to the issues at stake, there is a brief historical introduction to some of the problems that personhood inquiries have faced. After the introduction, this paper is divided into four sections. Part I summarizes …

Disseisin, Doubt, And Debate: Adverse Possession Scholarship In The United States (1881-1986), John Lovett

Texas A&M Law Review

Property law scholars in the United States have discussed the doctrine of adverse possession for more than a century. Indeed, ever since American property law scholars began to write property law treatises, formalize property law courses in modern law schools, publish property specific articles in law reviews, and publish property law case books, adverse possession has served as a staple of property law discourse. This Article examines how property law scholars think about and discuss adverse possession. It explores how adverse possession talk has changed—and not changed—over time. In other words, this Article examines both the substance and rhetoric of …

Hb 434 - Eminent Domain, Ashley M. Bowcott, Derek M. Schwahn

Georgia State University Law Review

The Act amends Georgia’s eminent domain laws by providing an exception to the general rule that condemnations cannot be converted to any use, other than a public use, for twenty years. The Act creates a new procedure which requires the condemnor to petition the jurisdiction’s superior court to determine whether the property is blighted property. Additionally, the condemnor must provide notice to all owners of the alleged blighted property. If the court finds the land is blighted property, the condemnor must file a petition to condemn the property according to the established procedure set forth in Article 3 Chapter 2 …

Hb 1 - Space Flight, Malissa Caroline Barger, Ethan L. Smith

Georgia State University Law Review

The Act limits the civil and criminal liability of a space flight entity for injuries sustained by space flight participants arising from ordinary negligence. The Act defines new terms and provides a statutory waiver form that participants with informed consent must sign. The Act mandates space flight participants sign the waiver before participating in any space flight activity. The Act does not limit the liability of space flight entities for gross negligence or intentional acts, nor does it prevent suits from anyone other than the space flight participant.

Stategraft, Bernadette Atuahene, Timothy Hodge

All Faculty Scholarship

Although sometimes difficult to detect, governmental power abuses can have detrimental impacts. Property tax assessments provide an effective lens to examine this phenomenon because, given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. Michigan is an ideal case study because it protects property owners by making assessment-related power abuses more visible through a unique state constitutional provision: property tax assessments cannot exceed 50 percent of a property’s market value. Abuses have persisted nevertheless. Between 2011 and 2015, …

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …

The Architectural Works Copyright Act: Can It Protect An Architect's State Of The Art Development When Funded Through Federal Dollars?, Kyle R. Moore

Marquette Intellectual Property Law Review

Westlawn Gardens, the multi-million, multi-phase redevelopment, is nearing completion. As it stands, the LEED award winning development is the largest public housing neighborhood in Wisconsin. But what if a commercial company or individual tried to recreate that development; would the original architect’s work be protected under copyright law?

Copyright law has provided no answers and the law typically protects the architect, but when federal dollars are handed down to independent agencies the ownership line is blurred. 17 United States Code Section 105, states that “copyright protection under this title is not available for any work of the United States government, …

Pipelines, Electrical Lines, And Little Pink Houses: Do Any Limits On "Public Use" Remain In Eminent Domain Law?, Kristin J. Hazelwood

Law Faculty Scholarly Articles

That property is more than mere dirt, brush, or rugged terrain is made obvious by the fervor with which individuals will defend their right to inhabit or use that property. Property can be valuable to individuals for myriad reasons, including an ancestral connection to the property; "historic, religious, and cultural significance;" or emotional attachment. The desire to preserve the right to use property or to protect it from environmental harm can create atypical activists, such as the Sisters of Loretto in Kentucky. The sisters opposed the construction of the pipeline across their pristine property and voiced their disapproval of the …

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

Scholarly Articles

This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.' In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement's change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence.

Community Dignity Takings: Dehumanization And Infantilization Of Communities Resulting From The War On Drugs, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

The "Publicization" Of Private Space, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or “POPOS.” These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This analysis is especially important because in embracing POPOS, cities have made …

Testing Fannie Mae's And Freddie Mac's Post-Crisis Self-Preservation Policies Under The Fair Housing Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Beginning in the 1930s, the federal government adopted programs and policies toward safe and decent housing for all. The initiatives included the creation of the Federal Housing Administration that, among other things, spurred mortgage lending by guaranteeing mortgage loans to low- and moderate-income borrowers. The creation of the secondary mortgage market by Fannie Mae and Freddie Mac (“GSEs”) helped provide more liquidity for loan originators. However, somewhere along the way, these GSEs lost their way, as they pursued profitability without regard to risk and heedlessly bought mortgages without considering quality.

The overabundance of poor quality mortgages led to the housing …

Integrating Adjunct Faculty Into Teaching Real Estate Transactions Law & Practice--Both In The Classroom And Online, 53 Wake Forest L. Rev. 947 (2018), Celeste M. Hammond

UIC Law Open Access Faculty Scholarship

I welcome the invitation to share my experience and ideas on teaching law students about the real world of real estate from a transactional perspective, beyond the appellate cases that are the basis of so much traditional legal education.

Fifty Years Since Passage Of The Fair Housing Act: Rent-To-Income Ratios In The Persistence Of Residential Racial Segregation In Chicago, 51 J. Marshall L. Rev. 551 (2018), Amanda Insalaco

UIC Law Review

No abstract provided.

The New Model Negotiated Alternative To The Foreclosure Act, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

One of the many painful lessons learned from the mortgage crisis that began in 2007 is that foreclosure is often a costly, slow, inefficient, and uncertain process. The additional cost and uncertainty for lenders are magnified when the balance of the mortgage debt exceeds the value of the collateral (that is, when the borrower is “underwater”), and thus full recovery by the lender of its investment is unlikely. Ways to avoid this misery are for the lender (usually represented by the servicer for a secondary market purchaser or a securitized trust) and the borrower to enter into a deed in …

The Power To Exclude And The Power To Expel, Donald J. Smythe

Faculty Scholarship

Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate …

A Clean Slate For Texas Foster Youth: Policy Recommendations On Preventing And Resolving Identity Theft For Youth In Foster Care, Madison Howard Churchman

Texas A&M Journal of Property Law

This Article will compare how Texas and other states implement this federal law differently and then discuss how Texas can improve its flawed system to better protect children negatively affected by identity theft. Section II of this Article will introduce and explain M.D. v. Abbott and the changes in Texas foster care on the horizon as a result of this case. Section III will introduce and delve into the issue of identity theft in foster youth as a whole, and it will tell the story of one foster youth who faced the results of identity theft. Finally, the Section breaks …

The "Publicization" Of Private Space, Sarah B. Schindler

Faculty Publications

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or POPOS. These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This is especially important because in embracing POPOS, cities have made a …

Rainwater Harvesting In Colorado And The Quandary Of A Taking, Stephen N. Bretsen

Texas A&M Journal of Property Law

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them …

Old Water Becoming New Again: Reuse Of Treated Wastewater Effluent In Texas, Howard S. Slobodin, Hope C. Shelton

Texas A&M Journal of Property Law

The reuse of treated wastewater effluent for municipal supply is not a new idea in Texas, having been contemplated for at least sixty years. However, its importance has grown in recent decades as traditional surface water sources have become fully subscribed. Reuse is recognized as a significant source of future supply for Texas in the 2017 Texas State Water Plan.1 The law related to reuse is, however, still very much a developing subject. Recent administrative actions and judicial decisions have better defined the contours of the entitlements necessary to reuse effluent discharged to state-owned water courses.2 In the midst of …