Property Law and Real Estate Commons^™

Easier Easements: A New Path For Conservation Easement Deduction Valuation, Nicholas Carson

Northwestern University Law Review

Conservation easements, a valuable tool in the conservationist’s toolbox, have grown increasingly popular since the 1980s, when Congress introduced changes to the federal tax code making easement donations more financially attractive. And with deductions reaching hundreds of thousands, or even millions, of dollars, conservation easement deductions are big business. However, expanded incentives and loosened regulations invite abuse, especially when the tax implications are large and donated easements are hard to value. Valuation of real estate remains an inexact science, dependent on inconsistent appraisal methods and subjectivity. Conservation easements can be even more difficult to value than other easements because, by …

Protecting Sacred Ground: The San Manuel Ruling And Implications For Indian Cultural Resource Preservation, Gray O'Dwyer

University of the District of Columbia Law Review

Six hundred years ago, all land in America was Indian land.1 Then,"[Europe] conducted some of her adventurous sons into this western world.., and discovery gave title... [which] could be consummated by possession."2 This "doctrine of discovery," agreed upon between colonial powers, essentially granted title to anyone who could occupy American soil. Europeans quickly scrambled to negotiate peace treaties with native tribes so that they could install settlers and thereby claim territory. The inherent problems with these treaties were numerous; beyond conflicting interests,3 outright fraud,4 and language barriers, the terms of transfer were inherently invalid because the government that was taking …

A Half-Baked Law: How The Supreme Court's Decision In Koontz V. St. Johns River Water Management District Misses A Key Ingredient To Fifth Amendment Protection, Garrett W. Messerly

BYU Law Review

No abstract provided.

The Future Of Foreclosure Law In The Wake Of The Great Housing Crisis Of 2007-2014, Judy Fox

Journal Articles

As 2014 came to an end so, perhaps, did the worst foreclosure crisis in U.S. history. On January 15, 2015, RealityTrac, one of the nation’s leading reporters of housing data, declared the foreclosure crisis had ended. Whether or not their declaration proves true, the aftermath of the crisis will be felt for years to come. During the crisis it is estimated more than five million families lost their homes to foreclosure. Federal, state and local responses to the crisis changed laws and perceptions regarding foreclosure. Despite these changes, we end the crisis much the way we began -- with a …

Incorporating Ny Land Banks Into The Delinquent Property Tax Enforcement Processes, J. Justin Woods

Elisabeth Haub School of Law Student Publications

This article argues that New York municipalities should integrate land banks into the tax enforcement process to break the unhealthy cycle perpetuated by real estate and lien speculators. By transferring all tax liens and foreclosed properties to local land banks, municipalities can generate an important funding source that will help cover land banks' operations while simultaneously maximizing land banks' ability to reinvest lien proceeds and equity into redeveloping or demolishing properties with little or no value. If New York municipalities use their Land Bank Act powers fully, local and regional land bank efforts can become a vital tools for planning …

Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Faculty Scholarship

In a time of limited resources and sluggish economic growth, competition between cities has become palpable, and the race for new investment often dictates the public agenda. To that end, the explosive growth of public-private partnerships between local governments and private investors has resulted in the creation of a myriad of special taxing districts, the purposes of which are limited only by the imagination. Of particular concern has been the growth of certain real estate development-related districts. Although first conceived to fund critical improvements where conventional credit was not available, in more recently years these special districts have been used …

Super - Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Washington and Lee Law Review

No abstract provided.

Valuing Control, Peter Dicola

Michigan Law Review

Control over property is valuable in and of itself. Scholars have not fully recognized or explored that straightforward premise, which has profound implications for the economic analysis of property rights. A party to a property dispute may actually prefer liability-rule protection for an entitlement resting with the other party to liability-rule protection for an entitlement resting with her. This Article presents a novel economic model that determines the conditions under which that is the case—by taking account of how parties value control. The model suggests new opportunities for policymakers to resolve conflicts and to develop better information about property disputes …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French

Faculty Scholarship

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

Slides: Practicing Sustainability In Natural Resource Industries, Gary D. Libecap

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: Gary D. Libecap, Bren School of Environmental Science and Management and Economics Department, University of California, Santa Barbara, National Bureau of Economic Research (NBER)

10 slides

Bank Of America, N. A. V. Caulkett, Et Al.: Brief Of Bankruptcy Law Professors Robert M. Lawless, Bruce A. Markell, And John A. E. Pottow As Amici Curiae In Support Of Affirmance, John A. E. Pottow

Appellate Briefs

Amici curiae are three leading scholars of bankruptcy, commercial, and business law who have been teaching, researching, and writing about bankruptcy law for decades. They seek to provide the Court with a fuller description of the legal rules, history, and policies affected by this case.

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

William & Mary Environmental Law and Policy Review

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

An Unintended Consequence Of Arkansas Game & Fish Commission V. United States: Expanding Takings Liability To What The Government Doesn’T Do, Jason Kane

William & Mary Environmental Law and Policy Review

No abstract provided.

Regulating The Underground: Secret Supper Clubs, Pop-Up Restaurants, And The Role Of Law, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Instagram pictures of elegantly plated dinners, long farm-style tables, and well-to-do people laughing in what looks like a loft apartment are followed by commenters asking, “Where is this?” This is the world of underground dining. Aspiring and established chefs invite strangers into their homes (or their friends’ stores after hours, or the empty warehouse at the edge of town, or the nearest farm) for a night of food and revelry in exchange for cash. Although decidedly anti-establishment, these secret suppers and pop-up restaurants are popular — there are websites to help people locate them, and many respected publications have penned …

The Factual Reality Of Koontz V. St. Johns, Eric Dean Hageman

Notre Dame Law Review Reflection

The Court’s opinion in Koontz has elicited many negative reactions in academia, most of which focus on the expansion of Nollan and Dolan to monetary exactions. Criticisms run the gamut: some scholars argue that the Court was wrong to ignore the environmental impact of land developments, while others suggest the Court gave the same consideration too much credence. These criticisms are likely premature and necessarily speculative, since the Court decided the case less than two years ago.

Scholars have scrutinized this case’s factual and procedural history less closely, and those elements may justify the Court’s holding. Two often-overlooked facts are …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

Notre Dame Law Review

This Article builds on our earlier work on exhaustion. We have previously emphasized the common law origins of copyright exhaustion, arguing for a judicial interpretation that is more expansive than the narrow statutory first sale rule. Subsequently, we have advocated increased reliance on exhaustion to resolve a range of disputes over personal use by consumers that are typically analyzed through the lenses of fair use and implied license. And, most recently, we have outlined two competing legislative frameworks for a contemporary exhaustion regime as a part of the broader copyright reform effort. This Article examines both the forces undermining copy …

Back To The Future: How Illinois' Legalization Of Same-Sex Relationships Retroactively Affects Marital Property Rights, Eric J. Shinabarger

Chicago-Kent Law Review

Until 2011, Illinois viewed same-sex relationships as “against public policy” and refused to recognize any same-sex civil union or marriage. However, many Illinois residents traveled to progressive jurisdictions in order to enter into legal samesex relationships. Afterwards, they returned to their lives in Illinois and lived together as married couples despite Illinois’ lack of recognition.

When Illinois legalized same-sex civil unions in 2011 and same-sex marriages in 2014, it immediately flipped a switch and began retroactively recognizing same-sex relationships entered into in other jurisdictions. While this prevents same-sex couples from being forced to jump through hoops to re-legalize their relationships, …

Contested Shore: Property Rights In Reclaimed Land And The Battle For Streeterville, Joseph D. Kearney, Thomas W. Merrill

Northwestern University Law Review

Land reclaimed from navigable waters is a resource uniquely susceptible to conflict. The multiple reasons for this include traditional hostility to interference with navigable waterways and the weakness of rights in submerged land. In Illinois, title to land reclaimed from Lake Michigan was further clouded by a shift in judicial understanding in the late nineteenth century about who owned the submerged land, starting with an assumption of private ownership but eventually embracing state ownership. The potential for such legal uncertainty to produce conflict is vividly illustrated by the history of the area of Chicago known as Streeterville, the area of …

Migrating Boundaries, Katrina M. Wyman, Nicholas R. Williams

Florida Law Review

The boundaries between land parcels usually are assumed to be static and unchanging. However, not all land borders are stable. An important land boundary that routinely ambulates is the border between what is publicly and privately owned along U.S. coastal shores. This coastal boundary recently has been the subject of renewed attention from the courts, scholars, and even the popular press in the wake of Hurricane Sandy. This Article offers an economic analysis of why the boundary generally ambulates, rather than remaining perpetually fixed as land borders usually are assumed to do. It also considers whether the legal border generally …

The Trespass Fallacy In Patent Law, Adam Mossoff

Florida Law Review

The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate—patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an …

The Public Trust Doctrine In Environmental And Natural Resources Law, Second Edition, Mary C. Wood, Michael Blumm

Contributions to Books

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right …

Defining Power Property Expectations, Michael Pappas

Faculty Scholarship

To date, most government efforts to promote distributed solar energy have involved incentivizing property owners to undertake voluntary installations. However, that approach is changing, as government actors move to increase distributed solar generation capacity not only through incentive programs, but also through requirements. Such a change from voluntary to mandatory measures represents a seismic shift in the approach to encouraging distributed solar generation, and it may raise objections about interference with property expectations.

The Comment addresses those concerns by exploring the nature of property expectations in the energy context and analyzing how courts and legislatures have balanced property expectations against …

Comments: Private Investment: Trojan-Horse Or Shining Knight For America's Public Housing Stock, Andrew Balashov

University of Baltimore Journal of Land and Development

The numbers are staggering. The nation's largest public housing authorities ("HA's") are in a state of crisis as a result of massive budget shortfalls. The Department of Housing and Urban Development (HUD) estimates it would take roughly $26 billion to remedy the problem. To put this in perspective, in 2014 the New York City Public Housing Authority had a $77 million deficit and $18 billion worth of "unfunded capital improvements," - a euphemism for basic upgrades to building systems such as water, heat, air conditioning, and elevators. At present, many of these systems are woefully below acceptable livability standards. This …

Reddall V. Bryan And The Role Of State Law In Federal Eminent Domain Jurisprudence, Shannon Frede

Legal History Publications

Prior to 1875, the standard federal takings procedure had been for state governments to condemn property on behalf of the federal government. As a result, the majority of interpretative work in the early history of eminent domain jurisprudence was undertaken by state courts. In 1853, the Maryland General Assembly granted the United States Government the power to condemn land in Maryland for an aqueduct across the Potomac to supply water to two District cities. In Reddall v. Bryan, the Maryland Court of Appeals upheld the aqueduct supplying the city of Washington with water as a public use. The Court …

Baltimore V. Valsamaki: The Maryland Court Of Appeals' Response To Kelo, Jeff Shaw

Legal History Publications

In the years following the Supreme Court’s controversial decision in Kelo v. New London, state judges and legislators across the country responded with a tidal wave of reform to state eminent domain law. While legislative reform efforts largely floundered in the Maryland General Assembly, the Maryland Court of Appeals, in the case of Baltimore v. Valsamaki, curbed the City of Baltimore’s use of quick-take condemnation procedures, imposed additional planning requirements on condemning authorities, and emphasizing the fact that property rights are fundamental constitutional rights. This article will begin with an examination of quick-take procedures and the reasons why …

Public Takings By The State For Private Use: A Maryland Case Study In Georges Creek Coal & Iron Company V. New Central Coal Company (1871-1874), Joshua T. Carback

Legal History Publications

This paper examines the legal controversy concerning New Central Company’s attempt to execute a public taking of the land of the Georges Creek Coal and Iron Company for its private use to build a railroad. This paper analyzes the significance of the case within the social, economic, and political context of the town of Lonaconing in Allegany County, Western Maryland, where the parties were situated. This paper also traces the procedural history of the case, including its appearance before the Allegany Circuit Court in 1872, and before the Maryland Court of Appeals in 1873 and 1874. Finally, this paper presents …

Great Falls Mfg. Co. V. Garland, 124 U.S. 581 (1888): The Final Battle After Thirty Years Of Litigation Over The Rights To Great Falls On The Potomac, Julia Carbonetti

Legal History Publications

The Great Falls Manufacturing Company owned extensive land and water rights at the Great Falls on the Potomac River at the time the United States decided to use the Great Falls as a water supply to the new capital in the City of Washington. In order to use its power of eminent domain, the federal government passed two Acts between 1858 and 1888. During that time, the United States and the Great Falls Manufacturing Company pursued 30 years of litigation to argue the just compensation that was due for the property taken at Great Falls. The 30 years ended in …

Hungry In The “Land Of Pleasant Living”: Combating The Effects Of Baltimore’S Food Deserts On Childhood Education Through Eminent Domain, Gabriel H. Rubinstein

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

A Promise To Pay Money If Transferred Land Is Used For Identified Energy-Related Activity: Can Successors Of The Promisor Be Bound?, Rex J. Zedalis

Tulsa Law Review

No abstract provided.

Property And Exceptionalism In China And The Anglo-American World, 1650-1860, Tahirih V. Lee

Scholarly Publications

No abstract provided.