Property Law and Real Estate Commons^™

Vendor’S Privilege: Adheret Visceribus Rei, L. David Cromwell

Louisiana Law Review

The article offers information on the vendor's privilege on the mortgage debt as stated by the Louisiana Supreme Court. Topics discussed include failure of timely transcription of the mortgage do not affect the vendor's privilege, effectiveness for failure of timely reinscription, and formulation of vendor's privilege law traces back to Code Napoléon.

Survey Of The Rights Of Receiverships To Sell Real Property, Baruch Kreiman

The Journal of Business, Entrepreneurship & the Law

The focus of this article is on the abilities of the receiver and the restrictions put on him regarding his management of the property-- specifically, whether the receiver has the ability to sell the land free and clear of all liens, and, if so, under what circumstances and by what method. Part II gives an overview of the article, discusses the structures of receivership statutes in various jurisdictions, and further discusses receivership sales. Part III analyzes the statutory frameworks and caselaw from a selection of jurisdictions with regards to their treatment of receiverships and focuses on sales made by the …

Judicial Treatment Of California’S Anti-Deficiency Legislation Section 580b: Is It Effective?, Cole F. Morgan

The Journal of Business, Entrepreneurship & the Law

Short sales of real property represent approximately a quarter of all homeowner transactions. Recently, short sales passed foreclosures as the preferred method in home sales due to the ease of sale. Coker v. JP Morgan Chase Bank, N.A., has ruled lenders of a purchase-money mortgage may not pursue a deficiency judgment after the short sale of a home. Essentially, this means after the sale is completed and the lender has obtained the proceeds from the sale, if there is a deficiency, they may not personally hold the borrower liable for the remaining debt of the mortgage. The ruling was established …

Aventura Management, Llc V. Spiaggia Ocean Condominium Association: Condominium Associations Beware, William C. Matthews

Florida Law Review

In late January 2013, the Third District Court of Appeal sent shockwaves throughout the real estate community with regards to condominium associations’ rights as unit owners. In AventuraManagement, LLC v. Spiaggia Ocean Condominium Association (Spiaggia), the appellate court interpreted Florida Statute § 718.1162 in an unprecedented way. The court held that if a condominium association takes title to a unit before the bank forecloses on a defaulting unit owner, the association is jointly and severally liable for all past due assessments with the previous owner that came due, up to the time of transfer of title.3 Condominium associations across …

Bitproperty, Joshua A.T. Fairfield

Scholarly Articles

Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.

Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or …

The Possession Heuristic, James E. Krier, Christopher Serkin

Book Chapters

A heuristic, as Daniel Kahneman (2011: 98) observes, “is a simple procedure that helps find adequate, though often imperfect, answers to difficult questions.” Kahneman is a psychologist, one of a handful of scholars who have brought heuristics to the attention of a general audience, thanks in large part to several books (Kahneman, Slovic, and Tversky 1982; Gilovich, Driffin, and Kahneman 2002). Just as Thomas Kuhn’s 1962 ideas about paradigms in the history of science are fodder for academics in all sorts of fields (this for better or worse), so too for Kahneman and company’s ideas about heuristics, and legal academics …

The Coming Wave Of Pretextually Profiteering Social Entrepreneurs: A Case Study At The Nexus Of Property And Civil Rights, David Groshoff

William & Mary Environmental Law and Policy Review

This Article builds on my prior publications employing case studies that serve as the prisms through which this Article applies a legal analysis to a newly trending problem in social entrepreneurship.

Specifically, this Article reviews the financial and property interests implicated when, in the milieu of an aging baby-boomer demographic likely to display decaying neurocognitive abilities, ostensibly socially beneficent limited liability companies (“LLCs”) pretextually pose as small businesses with a desire to serve people suffering from particular alleged mental disorders. In reality however, these brand-managed social entrepreneurs may represent conveniently detachable arms of integrated corporate enterprises that have hundreds of …

Sharp Curves Ahead: Analyzing Dedications To Public Use In Louisiana After Webb V. Franks Investment Co., Ben Jumonville

Louisiana Law Review

The article offers information on the history, purpose and significance application of the dedication law by Louisiana courts in transfer ownership case of Webb v. Franks Investment Co. It discusses the judicial decision of the Louisiana Supreme Court in the case of St. Charles Parish School Board v. P & L Investment Corp. applied the presumption for formal dedications transfer ownership of land to the public use.

An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Nancy Mclaughlin, Federico Cheever

Utah Law Faculty Scholarship

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by …

Summary Of Branch Banking & Trust V. Windhaven & Tollway, Llc, 131 Nev. Adv. Op. 20 (Apr. 30, 2015), Joseph Meissner

Nevada Supreme Court Summaries

The Court determined the proper interpretation of NRS 40.455(1), and applied it in a claim for a deficiency judgment following an out-of-state nonjudicial foreclosure. NRS 40.455(1) “does not require an out-of-state trustee’s sale to comply with NRS 107.080, nor does it preclude a deficiency judgment in Nevada when a nonjudicial foreclosure sale is conducted pursuant to the laws of another state.”

Tax Planning: Foreign Investment In United States Real Property, William H. Newton Iii

Georgia Journal of International & Comparative Law

No abstract provided.

Whose Fault Is It Anyway?: Analyzing The Role “Fault” Plays In The Division Of Premarital Property If Marriage Does Not Ensue, Arielle L. Murphy

Catholic University Law Review

Whenever an engagement comes to a premature end, the first question that seems to be asked is: “who gets the engagement ring?” This Comment seeks to answer this question. As societal views regarding marriage and a woman’s role within it began to change in the mid-twentieth century, courts started to recognize engagement rings as conditional gifts that were conditioned upon the marriage actually occurring. Even with this framework, states remain divided on whether fault should be included as part of the analysis in determining which party is entitled to the ring if an engagement ends before marriage occurs. This Comment …

Lending Discrimination, The Foreclosure Crisis And The Perpetuation Of Racial And Ethnic Disparities In Homeownership In The U.S., Aleatra P. Williams

William & Mary Business Law Review

For decades the agencies charged with minding the ‘fair credit and lending’ shop turned a blind eye to those (lenders) who pilfered minority homeownership (and consequently minority wealth) by extending mortgage lending products that were, in many cases, unequal to similarly situated non-minority counterparts. Since the 1950s, when the federal government endorsed homeownership policies for minorities, and the 1960s, when antidiscriminatory D9lending laws were enacted, access to fair mortgage credit has been unattainable. Unbridled lending discrimination culminated in massive foreclosures for a disproportionate number of minority homeowners during the Housing and Foreclosure Crisis. Lenders disparately foreclosed upon upper class, middle …

Mortgage Foreclosure Proceedings: Where We Have Been And Where We Need To Go, Bryan E. Meek

Akron Law Review

The primary purpose for this comment is to provide an overview of the foreclosure process while introducing the laws and regulations that would govern an “ideal” foreclosure system. First, it provides a general introduction to the mortgage/foreclosure process. This introduction is crucial; it will help many to understand the way financial institutions have complicated the foreclosure process. Next, it analyzes various states, labeling them as either having “strict” foreclosure laws and regulations or having “lenient” foreclosure laws and regulations. Lastly, this comment discusses the pros and cons of various foreclosure requirements. The ultimate goal of this comment is to establish …

City Of Norwood V. Horney - Much More Than Eminent Domain: A Forceful Affirmation Of The Independent Authority Of The Ohio Constitution And The Court's Power To Enforce It, Kathleen M. Trafford

Akron Law Review

individual’s protection under Ohio’s eminent domain law but also refines the judiciary’s approach to Ohio constitutional analysis. Part I will set forth the pre-Norwood standard of review in Ohio eminent domain law, which took an increasingly expansive approach to determining what constitutes public use out of deference to the legislature. It will outline the standard of review for eminent domain cases at the federal level following the United States Supreme Court’s holding in Kelo, which upheld the taking of private property for purely economic reasons. Finally, Part I discusses the facts and holding of Norwood, which struck down the taking …

The Property Rights Of Spouses Cohabiting Without Marriage In Israel - A Comparative Commentary, Menashe Shava

Georgia Journal of International & Comparative Law

No abstract provided.

More's The Pity: Patmore V. Town Of Chapel Hill And The Continuing Uncertainty Over North Carolina Judicial Construal Of Local Authority, Heyward Earnhardt

North Carolina Central Law Review

No abstract provided.

A Breach Of Trust: Rock-Koshkonong Lake District V. State Department Of Natural Resources And Wisconsin's Public Trust Doctrine, Anne-Louise Mittal

Marquette Law Review

Wisconsin has a particularly notable tradition of using the public trust doctrine aggressively to protect the state’s natural resources. The general thrust of the doctrine’s evolution in Wisconsin has been expansion beyond the doctrine’s traditional application to waters navigable for commercial purposes. Emblematic of such expansion is the Wisconsin Supreme Court’s decision in Just v. Marinette County, which scholars have characterized as a landmark extension of the public trust doctrine to non- navigable wetlands adjacent to navigable waters. In light of this tradition, it is unsurprising that the Wisconsin Supreme Court’s recent pronouncement that the Department of Natural Resources …

Perspectives - Cannon Design’S Open Hand Studio, James Hagy, Sahar Nikanjam

Rooftops Project

Not only can architects create great space, they can also inspire better connections between the built environment and the social sector. John Syvertsen, Chris Lambert, and Ashley Marsh talk with Sahar Nikanjam and Professor James Hagy of The Rooftops Project about their work with not-for-profit organizations through architectural firm Cannon Design’s Open Hand Studio initiative.

Professor Gerald Korngold On Conservation Easements, James Hagy, Katherine Disalvo, Naveed Fazal

Rooftops Project

The Rooftops Project’s Katherine DiSalvo and Naveed Fazal talk with New York Law School Professor and conservation easement scholar, Gerald Korngold.

Profiles - The Rubin Museum Of Art, James Hagy, Payal Thakkar

Rooftops Project

For over two centuries, New York City’s arts and culture have been enhanced by visionary founders of museums designed to house collections the founders themselves treasured. That tradition continues with the installation of a remarkable collection in the equally remarkable transformation of a former clothing store. The Rooftops Project’s Payal Thakkar and Professor James Hagy visit with Patrick Sears, Executive Director of The Rubin Museum of Art in New York City.

Profile - Human Rights Watch, James Hagy, Mehgan Gallagher

Rooftops Project

Rooftops Project Profile - Human Rights Watch - Every day, not-for-profit organizations face “stay or move” choices when they approach the end of their leases. Making predictions about space, and making space work, can be challenging. How did one such organization assess its choices as a tenant in one of the most iconic buildings in Manhattan? The Rooftops Project’s Mehgan Gallagher speaks with David Bragg at Human Rights Watch.

Developer Funding Of Affordable And Work Force Housing Through Impact Fees And Land Value Recapture: A Comparison Of American And Spanish Approaches, Julian C. Juergensmeyer

Faculty Publications By Year

This article explores the differences, similarities, comparative advantages and disadvantages between developer funding requirements for Affordable and Work Force Housing in the United States and Spain. Emphasis is placed on impact fees as a revenue source in the United States and value recapture requirements in Spain and in Catalonia in particular. The author concludes that American impact fees provide a broader base for developer funding requirement but that Spanish land value recapture programs offer greater flexibility to planning officials when they are applicable.

Financiación Por Promotores De Vivendas Asequibles Para La Clase Trabajadora Mediante Impuestos Y Recuperación De Plusvalías: Una Comparación De Los Enfoques Estadounidense Y Español, Julian Conrad Juergensmeyer

Faculty Publications By Year

Este artículo explora las diferencias, similitudes, ventajas y desventajas comparativas entre los deberes de financiación de los promotores urbanos de viviendas asequibles y para la clase trabajadora en los Estados Unidos y España. Se hace hincapié en las impact fees como fuente de ingresos en los Estados Unidos y los requisitos de recuperación de plusvalías en España y en Cataluña en particular. El autor concluye que las impact fees norteamericanas proporcionan una base más amplia para los deberes de los promotores de financiación, pero que los programas españoles de recuperación de plusvalías ofrecen una mayor flexibilidad a las autoridades encargadas …

Affordable Housing For Sustainable Cities: A North American Perspective, Detroit Metropolitan Area And Montreal (Quebec), Courtney Lauren Anderson, Maryse Grandbois

Faculty Publications By Year

Housing is an integral part to elevating and maintaining a quality of life to ensure a healthy and productive citizenship. The overwhelming number of citizens in Montreal and the United States who are unable to find housing that is less than 33% of their income stifles that economic progression of individuals and the society in which these individuals live. The ability for cities to dictate their own plans for creating and maintaining affordable housing without mandates from the federal vacillates among the various levels of government with each level having certain positive and negative elements. Although city autonomy can provide …

The Smart Cities Movement And Advancing The International Battle To Eliminate Homelessness - Barcelona As Test Case, John Travis Marshall, Jessica Venegas

Faculty Publications By Year

Barcelona is a leader in the smart cities movement, a movement that aims to help cities deliver services to citizens more efficiently and economically as a way of making the city a more inviting and inclusive place to live and work. As with any city committed to forward-looking economic, social, and urban development initiatives, it is important to consider whether ambitious goals to reinvent the city include an agenda to solve the persistent problems that have faced major cities for decades, including affordable housing and caring for roofless or homeless men and women. This article ties together the challenges Barcelona …

Alleviating Barcelona's Public Housing Shortages Through Historic Properties, Ryan Rowberry

Faculty Publications By Year

Creating public housing space in Barcelona requires rethinking how its historic properties might maintain their cultural and structural vitality while serving critical social and economic needs. Drawing on programs from the United States, Europe, and China, I suggest two strategies that Catalan officials might use to effectively leverage Barcelona's historic properties to reduce its public housing deficit. The first strategy considers successful financial incentives promoting public housing in historic properties within the United States - the Low Income Housing Tax Credit and the Historic Rehabilitation Tax Credit - and proposes how the Catalan government might find seed money to fund …

Picking Up The Remnants Post-Waller: Properly Limiting The Scope Of Uneconomic Remnant Claims In Wisconsin Eminent Domain Proceedings, Samuel A. Magnuson

Marquette Law Review

Statutory interpretation often requires a court to review the legislative intent behind the statute. However, this task is not always easily undertaken when the intent of the legislature is itself unclear. A recent Wisconsin Supreme Court case illustrates the difficulty in properly interpreting arguably ambiguous statutory language. Nevertheless, this Comment hopes to demonstrate that by examining the history of remnant theory, it should be clear that uneconomic remnant claims in eminent domain proceedings were intended to be limited to situations where the partial taking creates either a physical remnant or a financial remnant. Furthermore, this Comment argues that the Wisconsin …

Rights At Risk In Privatized Public Housing, Jaime Alison Lee

All Faculty Scholarship

Traditional public housing is dwindling. Federal policy has increasingly encouraged privatization, shifting stewardship of public housing out of the hands of government and into the hands of private, for-profit companies. Privatization in this context has both benefits and risks. A particularly compelling area of study is the attempt by lawmakers to conscript private contractors into serving public policy goals. Private landlords are obligated not merely to provide housing, but to conduct themselves in ways that promote the interests of vulnerable people. The case of public housing suggests that legislative mandates and contractual obligations are not enough to assure this outcome, …

The Politics Of The Takings Clauses, Mila Versteeg

Northwestern University Law Review

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain …